GUARDIANSHIP AND CONSERVATORSHIP OF MARY D. NOVOTNY ALSO KNOWN AS MARY NOVOTNY, a Protected Person
on Briefs March 21, 2016.
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TRIPP
COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN F. TRANDAHL,
FITZGERALD, KELLY M. PETERSON, Fitzgerald Law Firm, PLC,
Rapid City, South Dakota, Attorneys for appellant and
beneficiary Catherine Novotny.
SCHREIBER, Schreiber Law Firm, Prof. LLC, Pierre, South
Dakota, Attorneys for appellee guardianship and
conservatorship of Mary D. Novotny.
Justice. GILBERTSON, Chief Justice, and ZINTER and WILBUR,
Justices, concur. KERN, Justice, deeming herself
disqualified, did not participate.
[¶1] The guardians and conservators of this
guardianship established the Mary D. Novotny Trust. Caroline
Novotny is the beneficiary of the trust, and the conservators
are the trustees. A dispute over the trust arose, after which
the circuit court granted reimbursement of expenses to the
trustees. Caroline appeals the circuit court's decision.
[¶2] Teresa Novotny, Mark Novotny, and Paul
Novotny (collectively, " Conservators" ) were
appointed guardians and conservators of Mary Novotny on July
12, 2012. After an inventory of Mary's assets, a
certified public accountant recommended gifting some of
Mary's assets in order to reduce them for
federal-estate-tax purposes. In response, the Conservators
gifted assets to the heirs apparent of Mary. However, one of
Mary's daughters, Catherine Novotny, had no contact with
Mary or the Conservators. The Conservators hired a private
investigator to locate Catherine but were unable to find her.
After failing to locate her, they established a trust for
Catherine's benefit, which held assets of approximately
the same value as her siblings had received. Catherine was
eventually located, and in 2014, she petitioned to terminate
the trust established for her benefit. She alleged that
creation of the trust was unlawful and that the Conservators
breached their fiduciary duty.
[¶3] During the proceedings, the
Conservators sought reimbursement of expenses pursuant to
SDCL 55-3-13. On December 24, 2014, the Conservators stated
in their motion:
Prior to this motion, Co-Conservators have expended personal
funds defending the Trust as follows: 1. Mark Novotny -
$11,237.48 2. Theresa Novotny - $4,145.39 3. Paul Novotny -
$3,424[.]47 4. Mary Novotny checking account - $4,370.33 5.
Mary Novotny Trust checking account - $344.50
December 26, 2014, Catherine responded, opposing the motion.
In her response she stated:
These amounts alleged to have been paid have not been meant
to appear by affidavit, and are not under oath and therefore
[the Conservators' attorney] has not [met] his burden in
showing these amounts have been " actually
incurred," by the trustees. Moreover these amounts have
not been itemized or even reasonably described and so there
is not a way for the [c]ourt to judge whether or not these
are expenses by which the trustees are entitled to "
repayment," have been, " properly incurred by the
trustees in the performance of his or her trust."
[¶4] In response, Mark filed an affidavit on
January 6, 2015, which stated in part: " [A]s a direct
result of Catherine Novotny's actions, I have spent a
total of $11,237.28 in attorney's fees. In addition,
$4,370.33 has been spent from Mary Novotny's checking
account and $344.50 from the Mary Novotny Trust
Account." Paul Novotny filed a similar affidavit on
January 6, 2015, stating: " [A]s a direct result of
Catherine Novotny's actions, I have spent a total of
$3,424.47 in attorney's fees. In addition, $4,370.33 has
been spent from Mary Novotny's checking account and
$344.50 from Mary Novotny's Trust Account." Also on
that day, Teresa Novotny filed an affidavit, stating: "
[A]s a direct result of Catherine Novotny's actions, I
have spent a total of $4,145.39 in attorney's fees. In
addition, $4,370.33 ...