In re Estate of Bartelson

925 N.W.2d 416

In the MATTER OF the ESTATE OF Ralph BARTELSON, deceased

Jean Valer and Jane Haught, Petitioners and Appellants

v.Neil Bartelson, Steven M. Fischer, Personal Representative of the Estate of Diane Fischer, Respondents and AppelleesandWilliam A. Chaussee, Personal Representative, Respondent

No. 20180255

Supreme Court of North Dakota.

Filed April 11, 2019

Laura C. Ringsak, Bismarck, N.D., for petitioners and appellants.

Clark J. Bormann, Bismarck, N.D., for respondents and appellees.

Tufte, Justice.

[¶1] Jean Valer and Jane Haught appeal from a district court order denying their motion for reconsideration of a judgment determining they failed to rebut the presumption that they exercised undue influence over their father. We conclude the court did not abuse its discretion in denying their motion for reconsideration, and we affirm.

I

[¶2] This is the fourth appeal to this Court in proceedings involving the Estate of Ralph Bartelson and his four adult children: Valer, Haught, Neil Bartelson, and Diane Fischer. Estate of Bartelson , 2015 ND 147, 864 N.W.2d 441 (" Bartelson III "); Estate of Bartelson , 2013 ND 129, 833 N.W.2d 522 (" Bartelson II "); Estate of Bartelson , 2011 ND 219, 806 N.W.2d 199 (" Bartelson I ").

[¶3] As Ralph Bartelson’s health declined, his children agreed that he would live with Valer and that she and Haught would be paid to provide care for him. During this time, Ralph Bartelson executed a power of attorney appointing Valer as his attorney in fact and established a joint checking account, naming both Valer and Haught co-owners with rights of survivorship and allowing them to issue checks from the account. Neil Bartelson and Fischer claimed that Valer and Haught misappropriated money from their father, and they petitioned for appointment of a guardian and conservator for him. In July 2008, the parties stipulated to the appointment of Valer as guardian for Ralph Bartelson and the appointment of Guardian and Protective Services ("GAPS") as conservator for him. The parties’ stipulation required GAPS to investigate and pursue the claimed misappropriation of money from Ralph Bartelson.

[¶4] Ralph Bartelson died in August 2008. His will was ultimately admitted to formal probate, and GAPS was appointed personal representative of his Estate. GAPS subsequently moved for court approval of requests for payments from the Estate to Valer and Haught. Neil Bartelson and Fischer objected to their siblings’ requests and reasserted their allegation that Valer and Haught had misappropriated money from their father. The parties agreed to the payments requested by Valer and Haught, conditioned on a resolution of the misappropriation claim. GAPS retained a forensic accountant to review transfers of Ralph Bartelson’s assets to family members, and the accountant determined Valer had received funds in excess of $154,000 and Haught had received funds in excess of $132,000. However, the accountant was not able to ascertain the reasons for many of those transfers, because Valer and Haught failed to provide documentation for the transfers.

[¶5] GAPS, as personal representative of the Estate, did not pursue a misappropriation claim against Valer and Haught, and the parties were unable to resolve that claim. After a bench trial in February 2011, the district court determined it did not have jurisdiction over any alleged misappropriations before Ralph Bartelson’s death. Neil Bartelson and Fischer appealed. In Bartelson I , 2011 ND 219, ¶¶ 1, 16, 806 N.W.2d 199, we reversed, holding the court erred as a matter of law in determining it did not have jurisdiction over misappropriation claims allegedly occurring before a guardian and conservator were appointed for Ralph Bartelson in July 2008. We remanded for further proceedings to determine whether Neil Bartelson and the Estate of Fischer¹ had standing to assert misappropriation claims. Id. at ¶ 15.

[¶6] On remand, the district court ruled that Neil Bartelson did not have independent standing to assert misappropriation claims against Valer and Haught. Neil Bartelson and Fischer then petitioned to remove GAPS as personal representative of the Estate. The court denied the petition without a hearing and denied a motion to vacate on the ground that Neil Bartelson was not an interested person. Neil Bartelson appealed, and we reversed, holding the court erred as a matter of law in concluding he was not an interested person and the court abused its discretion in denying the petition to remove GAPS as personal representative without a hearing. Bartelson II , 2013 ND 129, ¶¶ 17-18, 21-22, 833 N.W.2d 522.

[¶7] At a hearing on remand, Neil Bartelson and Fischer argued the district court was required to rule on the misappropriation claim by applying the presumption of undue influence in N.D.C.C. § 59-18-01.1. They claimed that Valer and Haught failed to rebut the presumption of undue influence by providing an accurate accounting of withdrawals from Ralph Bartelson’s checking account and that any withdrawals were presumed to be made as a result of undue influence. The court denied the petition to remove GAPS as personal representative of the Estate.

[¶8] We reversed the district court’s decision and remanded, holding the court misapplied the statutory presumption of undue influence in denying the petition to remove GAPS as personal representative. Bartelson III , 2015 ND 147, ¶¶ 1, 19, 864 N.W.2d 441. We explained that to properly apply the presumption, the court must first determine whether Valer and Haught had a confidential relationship with their father. Id. at ¶ 17. We said the court must make a finding about whether Haught had a confidential relationship with her father, and if the court found the existence of that relationship, it must apply the presumption of undue influence to benefits Haught obtained during the relationship. Id. at ¶ 18. We also concluded the record established that Valer had a confidential relationship with her father as a matter of law and the court must apply the presumption of undue influence to Valer’s withdrawals from his checking account. Id. at ¶ 19. We explained Valer had the burden of developing a record sufficient to prove any withdrawals were not received without sufficient consideration or under undue influence. Id. We noted the judge presiding over the original proceeding had retired, and the court on remand must make a certification of familiarity with the record under N.D.R.Civ.P. 63, or alternatively order a new trial. Bartelson III , at ¶ 20.

[¶9] On remand, a new district court judge certified familiarity with the record and determined Haught had a confidential relationship with Ralph Bartelson. The court also decided Valer and Haught failed to provide documentation for withdrawals from their father’s account to rebut the presumption of undue influence attributable to their confidential relationship with their father. The court determined the amounts of the withdrawals from their father’s account that Valer and Haught were unable to account for were summarized in an attachment to a closing brief submitted by counsel for Neil Bartelson and Fischer after the February 2011 hearing. The court decided the amounts in the attachment were correctly summarized from the forensic accountant’s report and testimony introduced into evidence at trial and adopted those amounts as an accurate summary of the amounts Valer and Haught owed the Estate for their failure to rebut the presumption of undue influence. The court’s decision required Valer to remit $76,413.15 to the Estate and Haught to remit $97,838.80 to the Estate.

[¶10] Valer and Haught moved for reconsideration under N.D.R.Civ.P. 60(b), arguing they did not have an opportunity to rebut the presumption of undue influence. They claimed the document attached to counsel’s closing brief after the February 2011 hearing was not an "exhibit offered, entered or testified" to in court and was not accurate. The district court denied their motion, determining they failed to allege a factual or legal basis for relief under N.D.R.Civ.P. 60(b). The court rejected their claim that the presumption of undue influence had not been raised in prior proceedings and that they were entitled to a hearing to present evidence to rebut the presumption. The court also determined the document that counsel attached to the post-hearing brief contained three clerical errors and corrected those errors. The court found it was otherwise an accurate summary of the forensic accountant’s report and testimony describing the amounts Valer and Haught were unable to substantiate. As a result, the district court concluded Valer and Haught failed to rebut the presumption of undue influence. After those corrections, Valer was required to remit $77,413.15 to the Estate and Haught was required to remit $86,554.26 to the Estate.

II

[¶11] Valer and Haught appeal only from the order denying their motion for reconsideration under N.D.R.Civ.P. 60(b), arguing the district court abused its discretion in denying their motion for relief from the judgment. They assert the court abused its discretion in adopting calculations from a document attached to a post-hearing brief to establish the amount they owed the Estate. They argue the document was not introduced into evidence at the February 2011 evidentiary hearing under the requirements of N.D.R.Ev. 1006, or subject to cross-examination. They claim the summaries were not accurate and contradicted the testimony of the forensic accountant. They also argue they were not afforded their due process right to notice and a hearing to rebut the presumption of undue influence.

[¶12] Valer and Haught have appealed only from the order denying their motion for reconsideration, and our review is limited to that order. See Kautzman v. Doll , 2018 ND 23, ¶¶ 5, 8, 15, 905 N.W.2d 744 (stating appeal only from a denial of a motion to reconsider under N.D.R.Civ.P. 60(b) does not permit appellant to attack the underlying order...