CA conservator case brings attention to judges ruling
In two bold moves, akin to a chess strategy in which a player clears the board of his opponent´s pieces, probate attorney J.David Horspool has asserted his authority over a conservatee by removing him from his home and wife and then evicting the son of the conservatee from his residence. In this circumstance, the conservatee is Horspool´s own father, Raymond Horspool Sr. and the eviction was executed on Horspool´s younger brother, William Horspool, wife and three children.
According to Raymond´s wife of nine years, Winifred Horspool, she was neither consulted nor given prior warning that her husband was going to be taken from her. Winifred Horspool says her husband, who is ninety years old, was taken from their Grand Terrace home when she was out running errands.
In a recent email to his sister, Barbara Howard, attorney Horspool justifies his removing his father from home and spouse, claiming that Winifred was on the verge of divorcing Raymond. In an interview with Winifred Horspool last week, she firmly denies this.
We were going to spend the rest of our lives together, she said. She denied that caring for her husband, who suffers from memory loss, was a burden. She stated she is at a loss as to how to bring her husband home. There is nothing I can do about this, she said grimly.
Attorney J. David Horspool has been chief counsel for conservator Melodie Scott, whose fiduciary license was recently denied by the State of California.
The Horspool conservatorship first caught public attention back in 2006, when the Los Angeles Times published an article detailing the schism that had resulted in the once close Horspool family, due to the friction generated by the contested conservatorship. A bid by family members to end the conservatorship failed and the dispute then focused on a home, located on Barrett Road in Riverside, which the elder Horspool had granted to his son, William, back in 2003, prior to the initiation of the conservatorship.
However, in 2003 J. David Horspool had changed the terms of the Trust, removing his father as Trustee and appointing himself and a brother, Raymond Jr. as co-trustees. Barbara Howard alleges this was done without informing the other siblings and that David Horspool exercised undue influence upon the father. William Horspool has stated that the change in the legal documents was made to ensure that the property remained in David Horspool´s control.
David Horspool characterized his brother William, whom he referes to as Billy and his sister Barbara as extremely disgruntled siblings who are in cahoots to defraud their father of his property. He said that William borrowed over $100,000 from Dad to support his day-trading addiction [and] refused to pay rent to Dad when Dad asked him to do so while Dad was still competent. Billy and Barbara are a couple of bitter people who just dont acknowledge their wrong-doing. Barbara perjured herself in an attempt to keep Billy in the house he stole from Dad. Billy continues to claim that everything in that house is his, even though our mother made some very specific gifts and Dad has always maintained that he would honor our mothers requests. Barbara continues in her unreasonable and blind hatred of me, when she should be looking at Billy because of what he did to Dad. Billy refused to acknowledge his wrongdoing, and continues to blame everyone but himself. Their claims have no merit, and the stupidity of them is apparent to anyone with any knowledge of the law. So now he sits at home all day, day-trading, losing thousands of dollars in the process.
David Horspool said that his brother was now allowed to visit their father with a monitor approved by Dads court-appointed attorney.
With respect to the assertions that I changed the terms of the trust without telling anyone, that is not accurate. David Horspool said. Dad made the decision to resign as trustee and allow my brother Ray and I to deal with Billy regarding his purchase of Dads house. None of the other children were informed of the change as it was none of their business. I never tell the children of my clients when their parents change the terms of their living trust. If the parents want to do so, that is their business, but I dont, as to do so would violate the attorney-client privilege. So for Barbara and Billy to make that claim reveals the depth of their ignorance. Barbara doesnt know what undue influence is. She makes the charge, but cant back it up with any facts.
In his communication with the Sentinel, David Horspool did not reassert his earlier suggestion that Winifed was intent on divorcing his father, but said that his brother William and sister Barbara were in no position to know Winifreds true sentiments. He acknowledged that his fathers relationship with his stepmother was continuing. First, neither Billy nor Barbara would know what Winifred was thinking six months ago, as neither of them were around, David Horspool said. Second, Dad has not been cut off from Winifred; she goes to visit him every day, or almost every day, at his current residence.
The eviction of William Horspool from the Barrett Road property, where he and his family had resided for eleven years, was originally ordered by Judge James Michael Welch, who sits on the probate bench in San Bernardino Superior Court. The eviction was appealed and a stay was granted. The case then returned to Welch. Judge Welch had previously issued a restraining order against William Horspool after he took photographs of his father, which allegedly reveal that the conservator had not properly cared for him.
Welch ordered the photos destroyed and in a highly unusual action, issued the permanent restraining order without ever having a hearing.
William Horspool has questioned the constitutionality of such an action by Welch. Efforts to have Welch removed from the case have not been successful. Barbara Howard alleges that Welch committed perjury in his answer to legal papers which were filed to have him recused, i.e., removed from hearing the case.
The declaration in support of the recusal alleges that Welch has had a personal association with Tom Dominick. Dominick is the attorney for trustee J. David Horspool and the elder Horspool´s conservator, his daughter, Margaret Updike.
In his formal answer to the motion to have him removed, Welch has denied this association with Dominick. However, Welch failed to disclose that Dominick sits as a judge pro tem in Welch´s own courtroom, which would de facto render them colleagues.
In addition, Welch stated in his answer that he had never ruled on a previous 170.6 (this is also a motion to recuse) and that Barbara Howard had not filed that motion. In fact, Barbara Howard had filed the 170.6 on April 16, 2009.
In a motion to set aside void judgment, filed on August 5, 2010, Chris Carter, attorney for Barbara Howard, declared the eviction order to be void on its face, as Welch had issued the order when the matter was under appeal. Judge Welch denied this motion.
William and Kelly Horspool and their three children, who are ages nine, seven and two years old, are now homeless.
When asked how she thought her husband was faring in the assisted living facility, Winifred Horspool chose her words carefully. My visit with him was very short, she said. It was hard to tell.
Concerns about Judge Welch´s financial dealings were revealed in a Sentinel article published in September of 2009. Welch has declined to answer questions concerning whether he or an undisclosed party is paying back his several home loans and also declined to answer questions about property transfers in Riverside County, which were tracked to a James Michael Welch Trust.
The Sentinels inquiry of Judge Welch at his courtroom was met by a referral to the presiding judge of the San Bernardino County Superior Court, Douglas Elwell. Elwells secretary, Aalvina Hollensbe, told the Sentinel Elwell would not be available for comment until November 16.
David Horspool, who frequently appears before Welch, leapt to the judges defense.
Billy and Barbaras problem is that they think the unfavorable rulings they have gotten from Judge Welch is evidence of bias on his part, instead of a total lack of facts to support their claims, and a total mischaracterization of the law. Attorney Carter has been wrong continually. He can make and has made a lot of wild charges against Judge Welch, none of which have been found to have any merit whatsoever.
Horspool said Welchs denial of having been previously subjected to a recusal motion by his sister was not a substantial issue.
Judge Welch has done nothing wrong, Horspool said. He is familiar with the case, and we are not going to allow Billy or Barbara or their attorney to engage in judge-shopping, as they are now apparently attempting to do. Billy and Barbara would like a chance to con a judge unfamiliar with the case, but that isnt going to happen. Very early on, we tried to sit down with Billy and Dianne [another Horspool sibling] and Barbara, but they were not interested in working within the family to do what was best for Dad. So after spending thousands of dollars on attorneys fees, we have what we have. We are not going to agree that Billy can go back into Dad