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Full Opinion
NO. 95-228
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
tJi\pJ !â:âg i\!yJ
IN RE ESTATE OF MICHAEL WILLIAM GOICK,
Deceased.
APPEAL FROM: District Court of the Seventeenth Judicial
District, In and for the County of Blaine,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Dan L. Spoon and Patrick J. McHugh,
R-p, Spoon & Gordon, Missoula, Montana
For Respondent:
Keith A. Maristuen, Bosch, Kuhr, Dugdale,
Martin & Kaze, Havre, Montana
Guardian Ad Litem:
David G. Rice, Attorney at Law,
Havre, Montana
Submitted on Briefs: December 7, 1995
Decided: January 9, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal of an order of the Seventeenth Judicial
District Court, Blaine County, granting summary judgment in favor
of Barbara Goick, appointing Barbara as a supervised personal
representative of decedent Michael Goick's estate, approving the
distribution agreement between Barbara and the decedent's children,
and denying appellants' motion to compel settlement of the case.
We affirm.
We restate the issues as follows:
1. Do the appellants, decedent's mother, brother, and
sister, lack standing to appeal?
2. Did the District Court err when it granted summary
judgment in Barbara's favor concluding that she was the surviving
spouse for purposes of intestate succession?
3. Did the District Court err when it appointed Barbara as
personal representative of decedent's estate?
4. Did the District Court err in denying the appellants'
motion to compel settlement of the case?
5. Is Barbara entitled to an award of attorney fees and
costs related to this appeal?
FACTS
Michael and Barbara Goick were married in 1981 and the
marriage produced three children. In December 1990, Michael filed
a petition for dissolution. A hearing in the dissolution
proceeding was scheduled for April 25, 1991. At that hearing,
Michael and Barbara agreed to all issues except the division of
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household goods, which the parties were to settle within two weeks.
The District Court Judge then had the parties present sufficient
evidence to support a decree of divorce.
Following the hearing, the judge was apparently asked whether
Barbara and Michael were divorced and he responded that they were.
The parties were unable to agree on the division of the household
goods and, on December 25, 1991, Barbara filed a motion to divide
personal property of the marriage. In the motion, she stated her
understanding was that the marriage had been dissolved on April 25,
1991, by the District Court. On December 19, 1991, the District
Court Judge wrote a memorandum to the attorneys informing them that
it was his understanding the parties had refused to sign the
settlement agreement negotiated at the April 25 hearing and that he
intended to hold the parties to that agreement. On January 7,
1992, Michael's attorney filed an application for withdrawal of
attorney to which Michael consented. No further proceedings
occurred in the divorce action and no final decree or order was
issued. Michael died on November 30, 1992. Two days after his
death, Barbara moved to dismiss the divorce proceeding for the
reason that Michael had died. On December 3, 1992, an order was
issued dismissing the divorce action.
On December 7, 1992, Barbara filed a petition for adjudication
of intestacy, determination of heirs, and appointment of personal
representative (PR). In the petition, she claimed she was the
surviving spouse and was entitled to an appointment as PR.
Michael's mother, brother, and sister (the appellants) filed an
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objection to the petition, claiming Barbara was not the surviving
spouse, but rather the ex-wife of Michael. The court appointed a
guardian ad litem for the children. Barbara filed a motion for
summary judgment asking the court to determine that she was the
surviving spouse of Michael. The appellants filed a motion for
summary judgment asking the court to find that Barbara was not
Michael's surviving spouse.
Subsequent to the summary judgment motion being decided, the
attorneys for Barbara and the appellants, and the guardian
ad litem, reached an oral settlement agreement on the telephone.
That agreement was never written or signed by the parties. On
August 2, 1994, the appellants filed a motion to compel a
settlement, claiming that a binding agreement had been reached in
the telephone conference. Barbara and the guardian ad litem
objected to the motion because the oral agreement had never been
approved by the parties. On October 24, 1994, the District Court
issued an order denying the appellants' motion to compel
settlement. The appellants filed a motion for reconsideration,
which was denied.
On January 27, 1995, a distribution agreement was entered into
between Barbara and the children through their guardian ad litem as
the only potential heirs of Michael. A notice of distribution
agreement was filed, and the appellants filed an objection to the
agreement. The District Court approved the agreement on March 21,
1995. The appellants filed a motion asking the court to reconsider
the distribution agreement, and the court ordered oral argument.
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On April 4, 1995, following the hearing, the District Court issued
an order granting Barbara's motion for summary judgment on the
issue of her status as a surviving spouse, approving the
distribution agreement, and appointing Barbara as a supervised
personal representative. From that order and the denial of their
motion to compel settlement, appellants appeal.
ISSUE 1
Do the appellants, decedent's mother, brother, and sister,
lack standing to appeal?
Barbara claims the appellants have no standing to appeal. The
record does not support Barbara's contention that she objected to
the appellants' standing in District Court. However, as we noted
in Grossman v. Dept. of Natural Resources and Conservation (19841,
209 Mont. 427, 437, 682 P.2d 1319, 1324, objections to standing
cannot be waived. Therefore, Barbara is not precluded from raising
this defense for the first time on appeal. & Stewart v. Board of
County Comm'rs (1977), 175 Mont. 197, 204, 573 P.2d 184, 188.
The appellants have appealed three separate issues to this
Court and it is necessary to examine their standing as to each
issue. A party aggrieved may appeal an order. Rule 1, M.R.App.P.
To be aggrieved, a party must have an interest in the subject
matter of the litigation which is injuriously affected by the
order. Holmstrom Land Co. v. Newlan Creek Water Dist. (19791, 185
Mont. 409, 425, 605 P.2d 1060, 1069 (citing Estate of Stoian
(1960), 138 Mont. 384, 357 P.2d 41).
5
Appointment of Barbara as PR
Barbara contends that appellants were not heirs to the estate,
and so, they could not be injured by Barbara's appointment as PR.
The appellants claim they have standing because they are creditors
of the estate. In fact, Michael's mother, Wanda Goick, is the only
appellant who filed a creditor's claim against the estate. As a
creditor, Wanda has priority for appointment as PR if Barbara is
determined to be ineligible. See § 72-3-502, MCA. Section
72-3-503, MCA, provides that creditors can object to the
appointment of a PR. Wanda objected to Barbara's appointment as
PR, and for that reason she has standing to appeal the appointment.
Michael's brother and sister are neither creditors nor heirs of the
estate, and therefore, they have no standing to appeal her
appointment as PR. See Olson v. Dept. of Revenue (1986), 223 Mont.
464, 469-70, 726 P.2d 1162, 1166.
Enforcement of Distribution Aqreement
The appellants raise the issue of whether enforcement of the
distribution agreement was in error and Barbara argues that they
lack standing to challenge the agreement. Under this agreement,
Barbara agreed to receive a distribution of one-third of the
estate, and the children agreed, through their guardian ad litem,
to receive two-thirds of the estate which will be administrated by
a corporate trustee.
The distribution agreement provided that Barbara and the
children's guardian ad litem agreed
to enter into a private agreement among successors as to
distribution of an estate, pursuant to Section 72-3-915,
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MCA, in order to settle the litigation in the probate
matter pending in Blaine County District Court and to
provide for a different distribution than provided under
the laws of intestacy.
Section 72-3-915(l), MCA, provides as follows:
Subject to the rights of creditors and taxing
authorities, competent successors may agree among
themselves to alter the interests, shares, or amounts to
which they are entitled under the will of the decedent or
under the laws of intestacy in any way that they provide
in a written contract executed by all who are affected by
its provisions. The personal representative shall abide
by the terms of the agreement subject to his obligation
to administer the estate for the benefit of creditors, to
pay all taxes and costs of administration, and to carry
out the responsibilities of his office for the benefit of
any successors of the decedent who are not parties.
The appellants are not successors to the estate and so they are not
proper parties to an agreement distributing the estate. They have
no legal interest in the distribution of Michael's estate.
Furthermore, Wanda's interests as a creditor of Michael's estate
are completely provided for by statute
A party has no standing where there is no personal stake in
the outcome of the controversy. Northern Border Pipeline Co. v.
State (1989), 237 Mont. 117, 129, 772 P.2d 829, 836 (citing Olson,
726 P.2d at 1166). The appellants have no personal stake in the
validity of the agreement. We therefore conclude that the
appellants have no standing to claim the distribution agreement was
improper. Accordingly, the issue of whether the District Court
erred in approving the distribution agreement is not properly
before us.
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Enforcement of Oral Settlement Asreement
Barbara contends the contested oral settlement agreement was
a distribution of the estate to which appellants have no interest.
Accordingly, she argues they have no standing to appeal the court's
denial of a motion to enforce this agreement. The appellants,
however, were parties to the contested settlement agreement and the
agreement named Wanda as co-PR and awarded her a percentage of the
estate in excess of what she would receive as a creditor. The
appellants are directly affected by the validity of the agreement
and thus have standing to appeal this issue. See Holmstrom, 605
P.2d at 1069.
ISSUE 2
Did the District Court err when it granted summary judgment in
Barbara's favor concluding that she was the surviving spouse for
purposes of intestate succession?
Wanda, as the sole appellant with standing to litigate this
issue, claims that both Barbara and Michael considered themselves
divorced and in the April 25, 1991, hearing the District Court
Judge informed the parties that they were divorced, even though no
final order was ever issued. The District Court held a hearing on
this issue in the probate proceeding and concluded that a divorce
decree cannot be based on an oral agreement. The court further
concluded that Barbara was the surviving spouse for purposes of
intestate succession and granted summary judgment in her favor.
The standard we use to review a district court's grant of
summary judgment is the same as that used by the district court in
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applying Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (Mont.
1995), 900 P.2d 901, 903, 52 St. Rep. 699, 700. Summary judgment
is appropriate where there are no issues of material fact and the
moving party is entitled to judgment as a matter of law. Bruner,
900 P.2d at 903.
Section 722-103(2) cc), MCA (1991), provides that "a person
who was a party to a valid proceeding concluded by an order
purporting to terminate all marital property rights" is not a
surviving spouse of decedent. Wanda claims the April 25, 1991,
proceeding conveyed and implied that Barbara and Michael were
divorced, thereby "purporting" to terminate all marital property
rights. Wanda contends that according to § 72-2-103(2) cc), MCA
(1991), Barbara is not a surviving spouse for the purposes of
intestacy.
There was no divorce decree or order issued from the April 25,
1991, proceeding, nor was a final settlement even reached as to all
marital property rights. Recently, in In re Marriage of Simms
(1994) I 264 Mont. 317, 871 P.2d 899, we concluded that an oral
settlement agreement is not binding on a judge. Whatever
settlement was reached in the April 25, 1991, proceeding was merely
an oral agreement between the parties and cannot be considered the
equivalent of an order where no final order was issued.
Accordingly, Barbara's status as a surviving spouse was not
terminated pursuant to § 72-2-103(2) cc), MCA (1991).
Wanda further contends principals of equitable estoppel
prevent Barbara from claiming that she is the surviving spouse in
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regard to Michael's estate when she has held herself out as being
divorced from Michael for over one and one-half years prior to his
death. Equitable estoppel requires that:
'1. There must be conduct--acts, language, or silence--
amounting to a representation or a concealment of
material facts. 2. These facts must be known to the
party estopped at the time of his said conduct, or at
least the circumstances must be such that knowledge of
them is necessarily imputed to him. 3. The truth
concerning these facts must be unknown to the other party
claiming the benefit of the estoppel, at the time when it
was acted upon by him. 4. The conduct must be done with
the intention, or at least with the expectation, that it
will be acted upon by the other party, or under such
circumstances that it is both natural and probable that
it will be so acted upon. . . . 5. The conduct must be
relied upon by the other party, and, thus relying, he
must be led to act upon it. 6. He must in fact act upon
it in such a manner as to change his position for the
worse, in other words, he must so act that he would
suffer a loss if he were compelled to surrender or forego
or alter what he has done by reason of the first party
being permitted to repudiate his conduct and to assert
rights inconsistent with it. . . .'
Davis v. Jones (1983), 203 Mont. 464, 467, 661 P.2d 859, 861
(quoting Lindblom v. Employers' Liab. Assur. Corp. (1930), 88 Mont.
488, 494, 295 P. 1007, 1009).
In this instance, equitable estoppel would have required that
Barbara's representation that they were divorced was made with the
intention or expectation that Michael would act upon the represen-
tation. It would also require that Michael relied to his detriment
upon the representation and that he not be aware that the divorce
was not final. Both parties refused to sign the settlement
negotiated at the April 25, 1991, hearing. Michael's attorney for
the divorce action testified that Michael did not believe the
divorce was final and that Michael insisted upon going to trial.
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This testimony was uncontradicted. It follows that Michael was
aware that the divorce was not final and did not act to his
detriment even if Barbara was found to have intentionally
misrepresented the facts concerning the status of the divorce.
We conclude that Barbara is not estopped from claiming she and
Michael were not divorced. The record is clear that no divorce
decree or order was ever issued. We therefore conclude that the
District Court did not err in holding that Barbara was the
surviving spouse for purposes of intestate succession and granting
summary judgment in her favor.
ISSUE 3
Did the District Court err when it appointed Barbara as
personal representative of decedent's estate?
Wanda's position is that Barbara should not have been
appointed PR because she has obvious conflicts of interest over the
estate in regard to the children's interests. She argues that
Barbara's claim to the estate is directly adverse to that of the
children's because the children would receive the entire estate if
not for Barbara's self-interest. For that reason, Wanda contends
that Barbara cannot act as a fiduciary of the estate for the
benefit of the children. The District Court ordered that Barbara
be named PR under the court's supervision and that she not take any
substantive action without the court's approval.
We review the appointment of a personal representative
according to § 72-3-502, MCA, to determine whether a district court
has correctly interpreted the law. Estate of Peterson (1994), 265
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Mont. 104, 110, 874 P.2d 1230, 1233. If a PR has not been named
under will and there are no devisees, the decedent's surviving
spouse has priority for appointment. Section 72-3-502, MCA.
As stated in Issue 2, Barbara is Michael's surviving spouse
for purposes of intestate succession. Accordingly, she has
priority for appointment over Michael's other heirs, the public
administrator, and any creditor. & § 72-3-502, MCA. Her
appointment was agreed to by the children through their guardian
ad litem. Therefore, the District Court was correct when it
determined Barbara had priority for appointment. Furthermore, the
children's interests are protected in this situation through the
court ordered supervision of the estate's administration. We
conclude that the District Court did not err in appointing Barbara
as PR of Michael's estate.
ISSUE 4
Did the District Court err in denying the appellants' motion
to compel settlement of the case?
The appellants assert that the settlement agreement reached
over the phone by the parties' attorneys was an enforceable
agreement. Barbara contends that the agreement was merely a
tentative oral agreement reached by the attorneys and subject to
the parties' approval. The District Court found that counsel
agreed to the settlement with the consent of the parties, but
concluded the agreement was insufficient to bind the parties in
this action.
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We review a District Court's conclusions of law to determine
whether the court's interpretation of the law is correct. Carbon
County v. Union Reserve Coal Co. (Mont. 1995), 898 P.Zd 680, 686,
52 St. Rep. 529, 533.
Section 37-61-401(l), MCA, provides that an attorney has the
authority to bind his client when the agreement has been "filed
with the clerk or entered upon the minutes of the court and not
otherwise." The settlement agreement in this instance was not
filed with the clerk nor was it entered upon the minutes of the
court. Furthermore, the object of the oral agreement was to
distribute Michael's estate. Distribution agreements are required,
pursuant to 5 72-3-915(l), MCA, to be in writing. While the
appellant's attorney memorialized the agreement in a letter dated
June 2, 1994, that letter included terms not agreed upon over the
phone. Barbara did not consent to these terms and so the letter
did not constitute a written agreement. See § 28-2-102, MCA.
We therefore conclude that the oral agreement was not binding
on the parties and hold that the District Court did not err in
denying the appellants' motion to compel settlement of the case.
ISSUE 5
Is Barbara entitled to an award of attorney fees and costs
related to this appeal?
Barbara claims this appeal is without merit and is mean
spirited in nature. Accordingly, she contends she is entitled to
an award of attorney fees pursuant to Rule 32, M.R.App.P.
Rule 32, M.R.App.P., states that:
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If the supreme court is satisfied from the record and the
presentation of the appeal in a civil case that the same
was taken without substantial or reasonable grounds, such
damages may be assessed on determination thereof as under
the circumstances are deemed proper.
While we cannot be aware of appellants' motive in bringing
this appeal, a review of the record demonstrates that the issues
raised were based on reasonable grounds. We therefore conclude
Barbara is not entitled to an award of attorney fees.
aza
Justice
We concur:
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