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In re Guardianship of Roshto

Supreme Court of Mississippi, En Banc

March 27, 2014

IN THE MATTER OF THE GUARDIANSHIP OF BLAINE MICHAEL ROSHTO, A MINOR: NATALIE DEASON
v.
JOSEPH M. STINSON, GUARDIAN A.D. LITEM

COURT FROM WHICH APPEALED: AMITE COUNTY CHANCERY COURT. DATE OF JUDGMENT: 07/20/2012. TRIAL JUDGE: HON. DEBBRA K. HALFORD.

FOR APPELLANT: JAMES W. SHELSON, ROBERT GREGG MAYER, FRED L. BANKS, JR., GARY L. HONEA.

FOR APPELLEE: JOSEPH M. STINSON (Pro se).

COLEMAN, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, AND PIERCE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

OPINION

Page 740

NATURE OF THE CASE: CIVIL - OTHER

COLEMAN, JUSTICE

¶1. In the instant guardianship case, the ward's guardian petitioned for transfer of the guardianship to Louisiana, where the ward and guardian had moved. Also before the court was a proposed investment plan for the ward's proceeds from a settlement. The chancellor denied both the request to transfer the guardianship and the guardian's proposed investment plan, and the guardian appealed. Finding no error, we affirm.

Page 741

Facts and Procedural History

¶2. Blaine Roshto was born to Shane and Natalie Roshto on February 13, 2007. On April 20, 2010, Shane died in the Deepwater Horizon oil rig explosion. Natalie and Blaine were Shane's sole heirs and wrongful death beneficiaries. The Amite County Chancery Court appointed Natalie as Blaine's guardian, because Blaine had a potential claim for damages for the wrongful death of his father. In April 2011, the court authorized a substantial settlement on Blaine's behalf. In light of a dispute regarding attorneys' fees in the wrongful death suit and a request from Natalie to invest Blaine's funds in non-insured deposit accounts, the chancellor determined that a guardian ad litem was needed to protect Blaine's interest. The court appointed Joseph Stinson as Blaine's guardian ad litem.

¶3. Natalie married Slade Deason in July 2011, and she and Blaine moved to Slade's hometown in Louisiana.[1] On December 29, 2011, Natalie filed a " Petition to Approve Final Accounting and for Authority to Transfer Guardianship," requesting that the court transfer the guardianship to Louisiana. Natalie had hired financial planning professionals and tax attorneys to assist her with financial decisions related to Blaine's portion of the settlement. Attached to her petition to transfer was an investment proposal for Blaine's settlement funds, which suggested placing approximately half of Blaine's assets in a tax-free structured settlement and putting the other half into a managed " grantor asset protection trust." The petition to transfer stated that, since Blaine was a resident of Louisiana, the Louisiana court had jurisdiction and was " the appropriate court to approve the investment" of Blaine's funds.

¶4. The chancery court held two hearings on Natalie's motion to transfer and the investment proposal, during which the chancellor heard testimony from Natalie, the guardian ad litem, financial advisors, and one of Natalie's attorneys. The chancellor heard extensive testimony from and asked questions of the financial experts regarding the proposed investments as well as the Certificate of Deposit Account Registry Service (CDARS).[2] Because the CD interest rate at the time was low and the income earned would be taxed, the financial advisors opined that placing the entire settlement in CDARS effectively would give Blaine a negative rate of return, especially when inflation is considered. In addition to the live testimony, the parties submitted information and affidavits pertaining to the potential investment strategies. The guardian at litem also filed an extensive written report, to which Natalie responded. The guardian ad litem opposed both the transfer to Louisiana and Natalie's proposed investment strategy.

¶5. Throughout both proceedings, the chancellor repeatedly expressed that her focus was on Blaine's best interest. After considering the pleadings and reports, holding two hearings, listening to extensive testimony from both sides, and engaging in the discussion and questioning the witnesses,

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the chancellor - noting that the she had " taken more testimony regarding the investment of this minor's fund than any other case during my tenure in office" - denied Natalie's request to transfer the guardianship to Louisiana and her investment proposal. The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in Mississippi and to use CDARS. Natalie filed a petition for interlocutory appeal.

Discussion

¶6. Natalie raises two issues on appeal. First, she claims that the chancery court abused its discretion by denying the transfer of the guardianship to Louisiana. She maintains that if the Court finds abuse of discretion and authorizes the transfer, then the second issue is moot. However, if the Court finds that the guardianship should remain in Mississippi, Natalie asserts that the chancery court abused its discretion in directing that the entire settlement amount be invested in CDARS.

¶7. " A minor under guardianship is a ward of the [c]hancery [c]ourt." Carpenter v. Berry, 58 So.3d 1158, 1162 (¶ 19) (Miss. 2011) (quoting Matter of Conservatorship of Mathews, 633 So.2d 1038, 1039 (Miss. 1994)). Decisions related to a guardianship lie largely within the sound discretion of the chancellor, as the ultimate guardian of wards of the court, and those decisions are reviewed for abuse of discretion. See Jackson v. Jackson, 732 So.2d 916, 920-21 (¶ 5) (Miss. 1999); Conservatorship of Harris v. King, 480 So.2d 1131, 1132 (Miss. 1985); Neville v. Kelso, 211 So.2d 825, 826 (Miss. 1968); Conner v. Polk, 161 Miss. 24, 133 So. 604, 605 (1931). " This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied." Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss. 2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss. 1999)).

I. Whether the chancery court abused its discretion by denying the petition to transfer the guardianship to Louisiana.

¶8. Natalie argues that the chancery court abused its discretion by denying the transfer of the guardianship to Louisiana based solely on " unwarranted speculation" that Natalie's marriage to Slade would fail. She also asserts that the chancery court abused its discretion by failing to apply a " reasonable legal standard" to the determination of whether to transfer the guardianship. We hold that the chancellor's decision to deny the transfer was based on substantial evidence and, further, the chancellor correctly applied the standard and procedure of Mississippi Code Section 93-13-63 pertaining to transfer of guardianships.

¶9. Mississippi Code Section 93-13-63 provides that " [i]f a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect[.]" Miss. Code Ann. § 93-13-63 (Rev. 2013) (emphasis added). According to Section 93-13-63, for the court to allow a guardianship to be moved out of Mississippi, the guardian must: (1) file a petition requesting removal of the guardianship; (2) settle the guardianship accounts; and (3) give a bond with two sureties residing in Mississippi for the full value of the estate to ensure that the guardian will qualify as guardian and file required paperwork in the new jurisdiction. Id. Section 93-13-63 is permissive, not mandatory, and the statute gives the chancellor

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wide discretion once the three prerequisites are ...


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