Conservatorship and Guardianship of Pulver, Matter of

• Decision Date: 04 February 1994
• Docket Number: No. 13617,13617
• Citation: 871 P.2d 985,1994 NMCA 24,117 N.M. 329
• Parties: In the Matter of the CONSERVATORSHIP AND GUARDIANSHIP OF Gale Ora PULVER.
• Court: Court of Appeals of New Mexico

Page 985

871 P.2d 985

117 N.M. 329

In the Matter of the CONSERVATORSHIP AND GUARDIANSHIP OF

Gale Ora PULVER.

No. 13617.

Court of Appeals of New Mexico.

Feb. 4, 1994.

Certiorari Denied March 18, 1994.

[117 N.M. 330] W.T. Martin, Jr., Law Offices of W.T. Martin, Jr., P.A., Carlsbad, for appellee Karen Brininstool.

Wayne A. Jordon, Law Office of Wayne A. Jordon, Alamogordo, for appellant Gale Ora Pulver.

OPINION

CHAVEZ, Judge.

Gale Pulver (Pulver) appeals from the trial court's judgment naming his daughter, Karen Brininstool (Brininstool), as his guardian and conservator of his estate. On appeal, Pulver asserts that the trial court lacked jurisdiction; erred by not disqualifying Brininstool's attorney; failed to follow mandatory procedures in the guardianship proceeding; and erred by failing to set aside the final judgment as to the conservatorship. Other issues raised in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). In addition, this Court ordered the parties to brief the issue of whether the transcript preparation costs can properly be deemed an administrative expense of Pulver's estate. Finding no reversible error, we affirm, and we hold that Pulver's transcript preparation costs are an administrative expense of his estate.

FACTS

Pulver suffers from multiple sclerosis and is legally blind. On three separate occasions, Brininstool has sought to be appointed as Pulver's guardian and conservator of his estate. The first occasion arose on June 17, 1988, as an action by Pulver and Brininstool, as co-petitioners. Attorney W.T. Martin (Martin) represented both Pulver and Brininstool in this first petition. At this time, without a hearing, the trial court entered an order appointing Brininstool as guardian and conservator of Pulver.

Approximately two months later, Pulver filed a petition to terminate the guardianship and conservatorship. A hearing was held on October 19 and 20, 1988, in which both parties acknowledged that procedural defects invalidated the June 17, 1988 appointment of Brininstool as guardian and conservator of Pulver. Thereafter, on March 24, 1989, a second hearing regarding the appointment of Brininstool as guardian and conservator was held. As a result of this hearing, the court again appointed Brininstool as guardian and conservator for Pulver. In the same judgment, the court discharged Pulver's guardian ad litem.

In October 1989, Pulver filed a motion to declare the March 24, 1989 final judgment void for failure to give him personal notice of the hearing as required by statute. Pulver also filed a motion to disqualify Martin from representing Brininstool in the case, since Martin had filed the original petition on behalf of Brininstool and Pulver. In addition, Pulver filed motions seeking to have Wayne A. Jordon (Jordon) appointed as guardian ad litem and to allow Pulver to hire an independent psychologist and have the conservator pay for his expenses. The court denied Pulver's motion to set aside the final judgment. However, the court appointed Jordon as Pulver's guardian ad litem and allowed Pulver to hire an independent psychologist to be paid by the conservator.

In July 1990, Pulver's mother sought to have the final judgment appointing Brininstool as guardian and conservator set aside because she did not receive notice as required by law. On August 24, 1990, the trial court agreed with Pulver's mother and ordered that the final judgment as to the guardianship should be set aside, deferred ruling on the motion to set aside the conservatorship until further evidence was taken on the matter, and denied Pulver's motion to disqualify Martin from representing Brininstool.

Thereafter, Brininstool began her third effort to be appointed as guardian and conservator for Pulver by filing an amended petition. The matter proceeded to trial on July 29 and 30, 1992. At trial, evidence was presented from both parties, and the guardianship and conservatorship issues were fully litigated. After hearing the evidence, the court appointed Brininstool as Pulver's guardian and continued her status as conservator of his estate. Pulver appeals from this decision.

DISCUSSION

Pulver raises several issues on appeal. Although he prefaces his brief with an acknowledgement of the procedural nature of all of his arguments, he urges this Court to recognize the "real human reason for this appeal": that Pulver does not want Brininstool to be his guardian or conservator. We note that the provisions in the New Mexico Probate Code for appointment of a guardian for an incapacitated person do provide some opportunity for choice or preference by the incapacitated person. See NMSA 1978, Sec. 45-5-311(B)(2), (C)(1) (Repl.Pamp.1993). The same is true of the provisions for appointment of a conservator. See NMSA 1978, Secs. 45-5-410(A)(2), (3); (C)(1) (Repl.Pamp.1993). The provisions for choice or preference are not as liberal as the provision for appointment of a minor's guardian. See NMSA 1978, Sec. 45-5-206 (Repl.Pamp.1993) ("The court shall appoint a person nominated by the minor, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the minor."). This case suggests there may be situations in which an incapacitated person ought to have more choice in the selection of a guardian or conservator. Nevertheless, that decision is one for the legislature, rather than this Court.

In evaluating the specific issues raised on appeal, we are immediately struck with the fact that none of the asserted errors resulted in any prejudice to Pulver. Pulver was well aware of the issues to be litigated, he actively participated in the litigation, and the matter was litigated three times, each time with the same result. In order for error to be reversible, it must be prejudicial. State v. Wright, 84 N.M. 3, 5, 498 P.2d 695 697 (Ct.App.1972). On appeal, error will not be corrected if the correction will not change the result. Wright v. Brem, 81 N.M. 410, 411, 467 P.2d 736, 737 (Ct.App.1970). We hold that the issues raised by Pulver do not amount to reversible error.

I. FAILURE OF BRININSTOOL TO OBTAIN LEAVE OF THE TRIAL COURT TO FILE AN AMENDED PETITION

After the trial court's oral ruling vacating the second order appointing Brininstool, Brininstool filed an amended petition, and the matter was ultimately tried on this amended petition. Pulver asserts that the trial court lacked jurisdiction because it did not enter an order allowing Brininstool to file an amended petition pursuant to SCRA 1986, 1-015(A) (Repl.1992). However, SCRA 1-015(A) provides that permission to amend a pleading need not be obtained if the pleading is one to which no responsive pleading is permitted, the action has not been placed on the trial calendar, and the amendment is made within twenty days after the pleading is served. In this case, no responsive pleadings were contemplated, see NMSA 1978, Sec. 45-5-303 (Repl.Pamp.1989); at the time of the filing of the amended pleading, no hearing had been set, and therefore the action was not placed on the trial calendar; and the reason that the order appointing Brininstool was vacated was that the petition had not been served. Thus, Brininstool was permitted to file her amended petition without permission of the trial court pursuant to SCRA 1-015(A).

II. FAILURE TO DISQUALIFY MARTIN AS ATTORNEY FOR BRININSTOOL

Pulver argues that the trial court erred by failing to disqualify Martin from representing Brininstool because Martin represented both Pulver and Brininstool in the initial guardianship and conservatorship proceeding. "A motion to disqualify opposing counsel should be filed at the onset of the litigation, or 'with promptness and reasonable diligence once the facts' upon which the motion is based have become known." United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 244, 629 P.2d 231, 320 (1980) (footnote omitted), appeal dismissed and cert. denied, 451 U.S. 901, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981). Pulver petitioned to terminate the conservatorship and guardianship on August 12, 1988. Thereafter, Martin responded and subsequently filed several documents on behalf of Brininstool. During this time, the trial court entered a final judgment appointing Brininstool guardian of Pulver and conservator of his estate. Despite these actions, Pulver did not seek to disqualify Martin until October 25, 1989, more than a year after Martin filed his initial document with the trial court on Brininstool's behalf. Because Pulver failed to act promptly in setting forth his motion to disqualify Martin, the trial court's denial of Pulver's motion was not an abuse of discretion. See Bobrick v. State, 83 N.M. 657, 658, 495 P.2d 1104, 1105 (Ct.App.1972) (denial of defendant's motion to dismiss counsel was not an abuse of discretion). In addition, we decline to reverse a judgment that was not tainted by Martin's conflict and that is otherwise supported by the evidence. See United Nuclear Corp., 96 N.M. at 246, 629 P.2d at 322.

III. TRIAL COURT'S FAILURE TO SET ASIDE CONSERVATORSHIP

Pulver contends that the trial court erred in failing to set aside the conservatorship because Brininstool failed to give the required statutory notice to Pulver's mother, Beatrice Pulver. In July 1990, Beatrice filed a motion to have the March 24, 1989 final judgment, appointing Brininstool as guardian and conservator, set aside because she did not receive notice of this hearing as required by statute. On August 24, 1990, the trial court ruled in favor of Beatrice and found that the March 24, 1989 final decree was void as to the guardianship. However, the trial court withheld ruling whether the final decree was void as to the conservatorship until evidence could be taken on the matter. The trial court withheld ruling on this matter until the July 29 and...