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In re Estate of Cashmore

Supreme Court of North Dakota

August 29, 2013

In the Matter of the Estate of Robert W. Cashmore, Deceased.
v.
Trudy L. Cashmore, Tricia L. Cashmore, and Kendra A. Cashmore, Appellees Thain M. Cashmore, individually, as Personal Representative of the Estate of Robert W. Cashmore and as Trustee of the Robert Cashmore Trust, Bourck D. Cashmore, individually and as Trustee of the Robert Cashmore Trust, Appellants

Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.

Kent A. Reierson (argued) and Lisa M. Dynneson (appeared), for appellants.

Steven A. Lautt (argued) and Carol K. Larson (on brief), for appellees.

OPINION

Sandstrom, Justice.

[¶ 1] Thain Cashmore, individually, as personal representative of the estate of Robert Cashmore, and as trustee of the Robert Cashmore Trust, and Bourck Cashmore, individually and as trustee of the Robert Cashmore Trust, appeal from an order holding the personal representative in contempt of court and from an order denying the personal representative's N.D.R.Civ.P. 60(b) motion to vacate the contempt order. Because the district court did not abuse its discretion in finding the personal representative in contempt or in denying the motion to vacate, we affirm.

I

[¶ 2] Robert Cashmore died in 2002. Thain and Bourck Cashmore are adult children from Robert Cashmore's first marriage, which ended in divorce. Trudy Cashmore is Robert Cashmore's widow, and they had two children together, Tricia and Kendra Cashmore. These two factions of the family have engaged in extensive litigation over Robert Cashmore's estate throughout the years, but most of the issues were resolved by a July 2007 court order.

[¶ 3] In March 2008, the personal representative moved to approve a final report and account and proposed distribution which listed the estate assets and distributions and showed a balance in the estate of $72, 598.56. Trudy, Tricia, and Kendra Cashmore objected to parts of the final report, and following a hearing, a judgment was entered on March 2, 2009, approving the final report with adjustments. This judgment ordered the estate to pay Trudy Cashmore $6, 377.83 within ten days.

[¶ 4] On April 13, 2009, the personal representative moved to approve an "amended" final report and account and proposed distribution which differed significantly from the judgment approving the original final report entered the previous month. The amended final report purported to show estate assets had brought in less money than anticipated in the original final report. The amended final report also requested $2, 502.13 in additional personal representative fees, $9, 965.20 in additional attorney fees, and $8, 000 in additional fees to close the estate. As a result, the amended final report showed the estate with a zero balance instead of the $72, 598.56 listed in the original final report, and the estate therefore claimed it would be unable to pay Trudy Cashmore the $6, 377.83 approved in the original final report. Following a hearing, the district court denied the motion to approve the amended final report. The court allowed $1, 250 in additional personal representative fees and $1, 500 in additional attorney fees, but again ordered the estate to pay Trudy Cashmore $6, 377.83 within ten days.

[¶ 5] In In re Estate of Cashmore, 2010 ND 159, ¶¶ 1, 17, 25, 787 N.W.2d 261, we affirmed in its entirety the district court's order denying the motion to approve the amended final report and account and proposed distribution. We specifically rejected the argument that the change in value of estate assets required approval of the amended final report:

Thain and Bourck Cashmore also argued an amended accounting was necessary to demonstrate the change in value of the vehicles and stock while the original motion was pending. Thain and Bourck Cashmore, however, had ample opportunity to draw those matters to the court's attention before judgment was entered. When there is a substantial, unanticipated change in the value of an asset after trial but before distribution of the property, the proper remedy is a motion to reopen to present additional evidence at a hearing. See Larson v. Larson, 1998 ND 156, ¶¶ 14-15, 582 N.W.2d 657; Grinaker v. Grinaker, 553 N.W.2d 204, 209 (N.D. 1996). In this case, the vehicles were sold in September 2008. The disputed stock was sold sometime after the August 2008 hearing and before entry of judgment. Thain and Bourck Cashmore could have called to the district court's attention the alleged discrepancy in values through a motion to reopen, but instead participated in ongoing discussions regarding the proposed findings of fact, conclusions of law, and order for judgment without mentioning any alleged problems with property valuations. Thain and Bourck Cashmore allowed the district court to enter a final judgment approving the final report and ordering distribution, then shortly thereafter filed a motion to approve an amended final report incorporating the "new" values of the disputed property. Thain and Bourck Cashmore failed to employ the appropriate available remedy.

Cashmore, at ¶ 16.

[¶ 6] Undeterred by our affirmance of the district court's final judgment ordering Trudy Cashmore be paid $6, 377.83 within ten days, the personal representative did not pay her and instead, in September 2011, filed a "verified statement to close estate" claiming "I have fully administered the estate... to the extent I was able" and "[t]here are no further assets to be distributed." In March 2012, Trudy Cashmore filed a petition for an order to show cause under N.D.C.C. § 30.1-21-03.1 why the estate "has not been closed" and why the personal representative should not be held in contempt under N.D.C.C. ch. 27-10 for "fail[ing] to make the payment as ordered." The personal representative responded by arguing the estate was closed by the filing of his verified statement, "the Estate does not owe Trudy anything more than she has received, " and she "owes the Estate $29, 395.50." Following a hearing, the district court rejected the personal representative's arguments and found him in contempt and once again ordered that the estate pay Trudy Cashmore $6, 377.83 within ten days, plus interest and her expenses, including attorney fees. The court also denied the personal representative's subsequent N.D.R.Civ.P. 60(b) motion to vacate the contempt order.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 30.1-02-02. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, ...


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