In re Estate of Skinner

248 N.C.App. 29

787 S.E.2d 440

In the Matter of the ESTATE OF Cathleen Bass SKINNER.

No. COA15–384.

Court of Appeals of North Carolina.

June 21, 2016.

Ward and Smith, P.A., by Jenna Fruechtenicht Butler, Wilmington and Michael J. Parrish, New Bern, for petitioner-appellees.

Braswell Law, PLLC, Louisburg, by Ira Braswell, IV, for respondents-appellant.

ZACHARY, Judge.

Respondent Mark Skinner ("Mr. Skinner") appeals from the trial court's order affirming an order entered by Wake County Assistant Clerk of Court Bill Burlington ("assistant clerk of court") removing Mr. Skinner as Trustee of the Cathleen Bass Skinner Special Needs Trust and as Guardian of the Estate (GOE) of Cathleen Bass Skinner. On appeal, Mr. Skinner argues that the order of the assistant clerk of court contains findings that are not supported by the evidence and certain conclusions that are legally erroneous. For the reasons discussed below, we agree.

I. Background

Cathleen Bass Skinner (Mrs. Skinner) suffers from cognitive and physical difficulties. On 13 April 2010, the assistant clerk of court adjudicated Mrs. Skinner to be "incompetent to a limited extent" and appointed "Wake County Human Services" as Mrs. Skinner's guardian. The order provided that Mr. Skinner could apply to become Mrs. Skinner's guardian in six months. Mrs. Skinner submitted a handwritten appeal from the clerk's order, asking that Mr. Skinner be appointed as her guardian. On 3 August 2010, Mrs. Skinner and Mr. Skinner were married, and on 4 August 2010, Mr. Skinner filed a motion to modify the guardianship order and appoint him as Mrs. Skinner's guardian. The parties to the motion included Mrs. Skinner, Mr. Skinner, Mrs. Skinner's Guardian ad Litem, Mary Easterling, Kathy Shelton,¹ and Wake County Human Services. On 20 January 2011, the assistant clerk of court entered a consent order appointing Mr. Skinner as the guardian of the person of Mrs. Skinner. On 27 August 2012, Mrs. Skinner's mother died, and on 23 August 2013, two of Mrs. Skinner's siblings filed a petition asking the assistant clerk of court to appoint Mrs. Skinner's sister Nancy Bass Clark (Mrs. Clark) as GOE for Mrs. Skinner.

The court appointed Kimberly Richards as temporary GAL for Mrs. Skinner, and Ms. Richards reviewed the files in this case and interviewed Mr. Skinner, Mrs. Skinner, and Mrs. Skinner's family members. Mrs. Skinner informed Ms. Richards that she wanted Mr. Skinner appointed as her GOE, while Mrs. Skinner's siblings preferred that Mrs. Clark be appointed. In her report to the assistant clerk of court, Ms. Richards stated that:

By all accounts, Mark Skinner has taken care of Cathy Bass Skinner for the past two years and her family has not been actively involved in her life. It appeared to me that Mark and Cathy care for each other and are actively involved in each other's lives. A family friend, Mary Easterling, reports that the couple is loving and happy.

On 9 October 2013, Mr. Skinner was appointed as the GOE of Mrs. Skinner, and on 5 December 2013, Mr. Skinner was bonded for $250,000. The GOE order, which found that Mrs. Skinner's inheritance was expected to be between $200,000 and $250,000, required that Mr. Skinner set up a Special Needs Trust for Mrs. Skinner. Accordingly, the Cathleen Bass Skinner Special Needs Trust was established and executed on 18 March 2014, and provided that Mr. Skinner would act as Trustee. On 25 March 2014, the assistant clerk of court entered an order approving the Trust and finding that the parties were "in agreement with the provisions of the Cathleen Bass Skinner Special Needs Trust," which included having Mr. Skinner serve as the Trustee of the Trust. The Trust was funded on 10 June 2014 with an initial distribution from the estate of $170,086.67. Shortly thereafter, Mr. Skinner used Trust assets to purchase a house where he and Mrs. Skinner live together, as well as some furniture and appliances.

On 28 July 2014, two of Mrs. Skinner's siblings filed a petition to remove Mr. Skinner as Trustee, on the grounds that Mr. Skinner had not complied with the Trust's requirement that Mr. Skinner provide Mrs. Clark with monthly bank statements. A hearing was conducted on 18 August 2014, at which the parties agreed that additional issues could be raised. On 27 August 2014, the assistant clerk of court entered an order removing Mr. Skinner both as GOE and as Trustee of the Cathleen Bass Skinner Special Needs Trust and replacing him with Mrs. Clark. Mr. Skinner appealed to the superior court of Wake County, and on 22 October 2014, the trial court entered a summary order affirming the assistant clerk of court's order. Mr. Skinner has appealed to this Court from the trial court's order.

II. Standard of Review

The assistant clerk of court removed Mr. Skinner as both GOE and as Trustee. N.C. Gen.Stat. § 35A–1290(a) (2015) gives the clerk of court the authority "to remove any guardian ... to appoint successor guardians, and to make rules or enter orders for the better management of estates and the better care and maintenance of wards and their dependents." Under N.C. Gen.Stat. § 35A–1290(b) (2015), it "is the clerk's duty to remove a guardian" if the guardian "wastes the ward's money or estate or converts it to his own use," " mismanages the ward's estate," or "has violated a fiduciary duty through default or misconduct."

Regarding the clerk's authority to remove a trustee, N.C. Gen.Stat. § 36C–7–706(b) (2015) provides in relevant part that the clerk "may remove a trustee" if "(1) The trustee has committed a serious breach of trust" or "(3) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries[.]"

N.C. Gen.Stat. § 1–301.3 (2015) provides that a party aggrieved by an order of the clerk arising from the administration of trusts and estates may appeal to superior court, and that upon appeal:

[T]he judge of the superior court shall review the order or judgment of the clerk for the purpose of determining only the following: (1) Whether the findings of fact are supported by the evidence, (2) Whether the conclusions of law are supported by the findings of facts, [and] (3) Whether the order or judgment is consistent with the conclusions of law and applicable law.

Upon Mr. Skinner's appeal from the trial court's order affirming the order entered by the assistant clerk of court, this Court is called upon to review a non-jury proceeding. As a general rule:

The standard of review of a judgment rendered following a bench trial is "whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." "Findings of fact by the trial court in a non-jury trial are conclusive on appeal if there is evidence to support those findings. A trial court's conclusions of law, however, are reviewable de novo. "

Gilbert v. Guilford County, 238 N.C.App. 54, 56, 767 S.E.2d 93, 95 (2014) (quoting Hanson v. Legasus of N.C., LLC, 205 N.C.App. 296, 299, 695 S.E.2d 499, 501 (2010) ). "If the court's findings of fact are supported by competent evidence, they are conclusive on appeal, even if there is contrary evidence." Collins v. Collins, ––– N.C.App. ––––, ––––, 778 S.E.2d 854, 856 (2015) (citation omitted).

If the assistant clerk of court's findings are supported by the evidence and its conclusions of law are supported by the findings, then the clerk's decision on the appropriate action to take is reviewed for abuse of discretion.

As the removal of a trustee is left to the discretion of the clerks of superior court ... our review is limited to determining whether the trial court abused its discretion. Under this standard, we accord "great deference" to the trial court, and its ruling may be reversed only upon a showing that its action was "manifestly unsupported by reason" or "so arbitrary that it could not have been the result of a reasoned decision."

In re Estate of Newton, 173 N.C.App. 530, 539, 619 S.E.2d 571, 576 (2005) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) ). In determining whether there was an abuse of discretion, "[w]e may not substitute our own judgment for that of the trial court." Kinlaw v. Harris, 364 N.C. 528, 533, 702 S.E.2d 294, 297 (2010) (citing Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982) ). Further, "[i]t is axiomatic that it is within a trial court's discretion to determine the weight and credibility that should be given to all evidence that is presented during the trial." Don't Do it Empire, LLC v. Tenntex, ––– N.C.App. ––––, ––––, 782 S.E.2d 903, 910 (2016) (internal quotation omitted). Therefore, in our review of the order entered by the assistant clerk of court, we are neither "reweighing the evidence" nor "disregarding the deferential standard of review." Nor do we express any opinion on the merits of the clerk's determination that Mr. Skinner was no longer the best person to serve as GOE and as trustee, or on the clerk's assessment of the credibility and weight of evidence or his resolution of evidentiary inconsistencies.

However, "an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). "[F]indings made under a misapprehension of law are not binding," and "[w]hen faced with such findings, the appellate court should remand the action for consideration of the evidence in its true legal light." Allen v. Rouse Toyota Jeep, Inc., 100 N.C.App. 737, 740, 398 S.E.2d 64, 65 (1990) (citing Dishman v. Dishman, 37 N.C.App. 543, 246 S.E.2d 819 (1978) (other citation omitted)). " ‘While this Court is bound by the findings of fact made by the [trial court] if supported by evidence, it is not bound by that court's conclusions of law based on the facts found.’ Accordingly, we review the...