Berryhill v. Rhodes (In re Guardianship of Berry)

• Citation: 335 P.3d 779,2014 OK 56
• Decision Date: 24 June 2014
• Docket Number: 111,492,111,961,112,573.
• Parties: In the Matter of the GUARDIANSHIP OF Foster Calvin BERRY and Daughtrey Nell Berry, Husband and Wife, incapacitated persons, James Berryhill and Anita Berryhill Appellants, v. Jeff K. Rhodes, Sean P. Hennessee, of Riseling & Rhodes, P.C., and Christopher I. Mansfield, Guardian, Appellees. and In the Matter of the Guardianship of Foster Calvin Berry and Daughtrey Nell Berry, Husband and Wife, incapacitated persons, James Berryhill and Anita Berryhill, Petitioners, v. The Honorable Terry H. Bitting, Special District Judge, Tulsa County, State of Oklahoma, Respondent. and In the Matter of the Guardianship of Foster Calvin Berry and Daughtrey Nell Berry, husband and wife, incapacitated persons; James and Anita Berryhill and David Berry, Petitioners, v. The Honorable Terry Bitting, Special Judge of the District Court, Tulsa County, State of Oklahoma, Respondent.
• Court: Supreme Court of Oklahoma

335 P.3d 779
2014 OK 56

In the Matter of the GUARDIANSHIP OF Foster Calvin BERRY and Daughtrey Nell Berry, Husband and Wife, incapacitated persons
James Berryhill and Anita Berryhill Appellants
v.
Jeff K. Rhodes, Sean P. Hennessee, of Riseling & Rhodes, P.C., and Christopher I. Mansfield, Guardian, Appellees.
and
In the Matter of the Guardianship of Foster Calvin Berry and Daughtrey Nell Berry, Husband and Wife, incapacitated persons
James Berryhill and Anita Berryhill, Petitioners
v.
The Honorable Terry H. Bitting, Special District Judge, Tulsa County, State of Oklahoma, Respondent.
and
In the Matter of the Guardianship of Foster Calvin Berry and Daughtrey Nell Berry, husband and wife, incapacitated persons;

James and Anita Berryhill and David Berry, Petitioners
v.
The Honorable Terry Bitting, Special Judge of the District Court, Tulsa County, State of Oklahoma, Respondent.

111,492
111,961
112,573.

Supreme Court of Oklahoma.

June 24, 2014.
Rehearing Denied Sept. 22, 2014.

John B. Nicks, Crutchmer & Barnes, PLLC, Tulsa, Oklahoma, for James and Anita Berryhill.

Russell L. Mulinix, Lindsey W. Mulinix, Mulinix, Ogden, Hall & Ludlam PLLC, Oklahoma City, Oklahoma, for James and Anita Berryhill.

Jeff K. Rhodes and Sean P. Hennessee, Riseling & Rhodes, PC, Tulsa, Oklahoma, for Foster Calvin Berry and Daughtrey Nell Berry.

Clifton Baker and Steven Wyers, Baker & Wyers, PLLC, Tulsa, Oklahoma, nominated attorneys for Foster Calvin Berry and Daughtrey Nell Berry.

Randall A. Gill, Tulsa, Oklahoma, for Riseling and Rhodes, PC.

Randall E. Rose, The Owens Law Firm, PC, Tulsa, Oklahoma, for Peggy Jan Harris.

William R. Grimm, Barrow & Grimm, Tulsa, Oklahoma, for Christopher Mansfield.

Russell L. Mulinix, Lindsey W. Mulinix, Sally Ketchum Edwards, Mulinix Ogden Hall & Ludlam, Oklahoma City, for James Berryhill and Anita Berryhill.

Jeff K. Rhodes and Sean P. Hennessee, Riseling & Rhodes, P.C., Tulsa, Oklahoma, for Daughtrey Nell Berry.

Randall A. Gill, Tulsa, Oklahoma, for Daughtrey Nell Berry.

A. Scott McDaniel, Stacy L. Acord, McDaniel Acord, PLLC, Tulsa, Oklahoma, for Christopher Mansfield.

Opinion

EDMONDSON, J.

¶ 1 This proceeding involves a request for an extraordinary writ that is recast as appeal from an order in a guardianship that adjudicated the wards' selection of counsel and adjudicated a motion concerning unsupervised visitation and selection of a guardian. This proceeding also involves two requests for extraordinary relief that were made during the appeal.¹ The first involves an emergency motion for modification of supervised visitation and the second involves the trial court's order quashing subpoenas. The Berryhills state that there was no evidence to support the trial court's adjudications, so we turn first to the facts in the record before us.

I.

¶ 2 Foster Calvin Berry² and Daughtrey Nell Berry, husband and wife, are the parents of two adult children, Jan and David. In 2011 Jan became concerned about her parents and had a company which performs assessments on “elderly geriatric and disabled persons” assess her parents.

¶ 3 Jan filed in the District Court a verified petition seeking an emergency special guardianship. The petition related results from examinations or assessments performed on Foster and Daughtrey. Photocopies of Foster's and Daughtrey's August 2011 “Durable

335 P.3d 784

Power of Attorney and Nomination of Guardian” were attached as exhibits showing Foster and Daughtrey name each other as Agent (and guardian of the person) with each of their children, Jan and David, named as an alternate health care proxy and alternate guardian of the person of each.³

¶ 4 On Jan's verified petition, an emergency special guardianship hearing was held before the Honorable Kurt G. Glassco, District Judge. Jan testified that: (1) She knew that a law firm had represented her parents and had prepared an estate plan; (2) She knew that Edward Jones Company was the trustee of her parents' trust⁴ and she was willing to continue that relationship; (4) She wanted to employ personnel necessary to provide 24–hour care for her parents; and (5) She was a “master's degreed social worker” employed by the U.S. Army, and that she possessed a certain security classification. On cross-examination she testified that until the last few months prior to the hearing she had visited her parents “about every third week,” did minor repairs around their house, and transported her father to medical appointments. She testified that she had recently become concerned about her parents. She testified that “the elder care unit of the Department of Human Services” had been to her parents' house three times to check on them in the month previous to the hearing.

¶ 5 At the hearing, counsel informed the court that the caregiver for Foster and Daughtrey had “been reported to Adult Protective Services” resulting in “an on-going, open investigation.” Counsel also argued that Daughtrey's son was prohibited by law from being named a guardian or serving in a fiduciary capacity for either of his parents. Jason Fields, from the firm of Riseling and Rhodes, appeared for both Foster and Daughtrey. Robin Owens appeared on behalf of Jan. Fields argued that there was no objection to Jan as an emergency special guardian of Foster and Daughtrey, but that she should not be named as guardian of their property. He argued that whatever estate planning the Berrys had previously put in place should remain without alteration by the court or a guardian. He argued that the Berrys had been scheduled to sign legal documents the day before the hearing, and that it was the opinion of the Berrys' financial advisor and an attorney at his firm concerning the Berrys' capacity: “they know what's going on.”

¶ 6 Jan was appointed Special Guardian for her parents. The court also ordered that the powers of attorney previously executed by Foster and Daughtrey be “held in abeyance pending further Court Order.” The order stated that the Special Guardianship would remain in force until 9:30 A.M. on Oct. 24, 2011, subject to further orders of the court. Id. The “Letters of Special Guardianship” were filed in September 2011, and limited the guardianship duties to management and control of certain aspects of the persons and estates of Foster and Daughtrey.

¶ 7 Four days after the hearing Clifton Baker and Steven Wyers, attorneys at law, entered appearances on behalf of Foster and Daughtrey as their nominated attorneys, and Foster and Daughtrey objected to the Special Guardianship. Their pleading requested an order suspending the Order and Letters of Guardianship naming Jan as guardian until a hearing to determine the capacity of the wards, and in the alternative to appoint either a guardian selected by the wards or a neutral guardian.

¶ 8 A hearing was held before the Honorable Millie Otey, Special Judge of the District Court. Jason Fields appeared for Foster and Daughtrey and argued that if they had the capacity to make the decision to hire new attorneys, then that would be their choice for counsel. He argued that because the court had previously determined that

335 P.3d 785

they were incapacitated “that calls into question their ability to be able to hire an attorney” and an evidentiary hearing was necessary to determine their choice of counsel.

¶ 9 At the hearing, counselors Baker and Wyers appeared for Foster and Daughtrey as nominated attorneys and requested that the rights of the guardian be “suspended or limited” until an evidentiary hearing be held. Attorney Baker explained that James Berryhill, Foster and Daughtrey's nephew, and James' wife, Anita, brought Foster and Daughtrey to his office seeking relief from the guardianship. After hearing argument and testimony from witnesses, Judge Otey specified that the Berrys be returned to their home after having been removed by the Berryhills, and that the Berrys be provided with health care at home twenty-four hours a day, seven days a week.

¶ 10 The judge also ordered that Foster and Daughtrey's son could have supervised visitation with his parents, and that the Berryhills could have supervised visitation with Foster and Daughtrey. Judge Otey also suspended all powers of attorney until termination or reinstatement by another judge who was assigned to hear the controversy. She also ordered that the Berrys have access to any of their funds in order for them to be able to sustain their lifestyle. She ordered that keys to the home be given to the guardian, agent for the guardian, the wards, and the home healthcare company. She ordered that the Berryhills not be given a key to the home. For much of this hearing the Berryhills had been outside the courtroom and no counsel had entered an appearance on their behalf, but at one point Mr. Baker informed the court what the Berryhills would testify to if called as witnesses. Tr. at 55. Mr. Wyers was then directed to go out into the hallway to determine if the Berryhills still possessed financial documents they had removed from the Berrys' home to a location in the State of Texas. Tr. at 57. The judge directed counsel to have the Berryhills come into the hearing where the judge ordered them to return the documents.

¶ 11 Judge Otey entered a temporary protective order that...