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Henderson v. Cook

Supreme Court of Virginia

August 23, 2019





         In this appeal, we consider the effect of altered assignments of error and whether a circuit court can delegate its authority to approve or deny final accountings submitted by a trustee and conservator to the Commissioner of Accounts.

         I. BACKGROUND

         In 2011, upon petition of Moni Henderson, Stephanie P. Cook ("Trustee") was appointed Guardian and Conservator for Thomas E. Noojin, an incapacitated adult, and Trustee for the Noojin Living Trust ("Trust"). Henderson is Thomas's daughter and one of the beneficiaries of the Trust. Her brother, Joseph E. Noojin, is the other Trust beneficiary.

         During the administration of the trust and conservatorship, the Trustee filed regular fiduciary accountings with the Commissioner of Accounts for Botetourt County ("Commissioner") and he approved accountings one through six. Thomas died in 2015. On June 21, 2017, the Circuit Court of Botetourt County ("circuit court") entered an order providing aid and guidance to the Trustee regarding the final administration of the Trust. On December 18, 2017, the Trustee notified the beneficiaries and the circuit court that she intended to present the "Seventh and Final Accounting" as Conservator for the Estate and the "Seventh and Final Accounting" as Trustee for the Trust (collectively, the "final accountings") to the circuit court and requested that the court dismiss the case from the docket. Judge Trumbo[1] heard the matter on December 27, 2017, and had heard all related matters up until this date. A court-reporter was not present for the December 27, 2017 hearing.

         The circuit court issued an order on December 29, 2017 in which it summarized the Trustee's actions taken on behalf of the trust. The circuit court directed the Trustee to file the final accountings with the Commissioner after which "the approval of the Seventh and Final Accounting . . . by the Commissioner of Accounts for Botetourt County, Virginia, shall be an approval by this court and the beneficiaries, subject to specific written objections so provided . . . ." The order also directed that, upon the approval of the final accountings by the Commissioner, the trust would be closed and "this Order shall become final."

         Henderson's written objections were attached to the December 29 order. Henderson objected to the procedure that the Trustee and the circuit court used because the final accountings bypassed the initial submission to and approval by the Commissioner before the circuit court ruled on the matter. There is no record demonstrating whether the circuit court considered Henderson's objections before issuing its December 29, 2017 order.

         On February 20, 2018, Henderson filed similar objections with the Commissioner, including more detailed objections to the Trustee's fees. On March 20, 2018, the Commissioner issued his approval of the final accountings, noting "[h]owever, this Commissioner notes objections have been filed by Sidney Kirstein on behalf of Moni Henderson." Henderson filed "Exceptions and Objections" to the March 20, 2018 report by the Commissioner in the circuit court on April 3, 2018. Henderson objected to the failure of the Commissioner to hold a hearing on the matter; to the award of legal fees and expenses to the Trustee; and to the Commissioner's authority to review the final accountings because the circuit court issued a final order on December 29. The record does not demonstrate that any further action was taken as to the final accountings by either the circuit court or the Commissioner.

         On March 8, 2018, Henderson requested a hearing for certification of her Written Statement of Facts prepared in advance of her first appeal to this Court. There is no transcript of this hearing, however, the circuit court entered an order on April 3, 2018. In the order, the circuit court ruled that the December 29 order was not yet final, but would become so when the Commissioner filed the approval of the final accountings with the clerk of the circuit court. The circuit court notified the parties it reviewed both Henderson's written statement and Cook's proposed written statement, filed in advance of the hearing, and signed both documents. Judge Filson appended to the order copies of the signed written statements to which she had added handwritten notes stating "the Judge is unable to fully reconcile the statements of fact filed by opposing counsel. The parties were unable to agree in toto and the Judge who has heard this matter over the years is retired and unavailable to determine the issue."

         This Court dismissed Henderson's first appeal without prejudice because the December 29 order was not a final, appealable order. Henderson appealed again on April 2, 2018 "from the final order, decision and ruling of the Botetourt County Circuit Court embodied in its order dated December 29, 2017 which states that it becomes 'final' by issuance of the order or report of the Commissioner of Accounts which was issued March 20, 2018."

          On May 10, 2018, Henderson filed a revised statement of facts in preparation for a second appeal and requested a hearing on the matter. After a hearing, the circuit court issued an order pursuant to Rule 5:11(g), in which it incorporated the previously-filed written statements.

         II. ANALYSIS

         A. Assignments of Error

         The Trustee argues that Henderson made substantive changes to Assignments of Error 1, 2, and 3[2] on brief and that the appeal should be dismissed. In response, Henderson asserts that the Court should address the merits of the case because the changes were non-substantive and meant to simplify and focus the errors.

         The assignments of error contained in the granted Petition for Appeal were:

1. As a matter of law, the circuit court erred by accepting a direct submittal of the fiduciary's seventh and final accountings for the Noojin Living Trust and the Noojin estate and by delegating unto the commissioner of accounts the right to ...

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