Fisher v. Slinger

• Decision Date: 26 October 2021
• Docket Number: WD 84058
• Citation: 634 S.W.3d 704
• Parties: Lee Allen FISHER, Appellant, v. Nina M. SLINGER, Respondent, and Keith A. Mayer, Respondent.
• Court: Missouri Court of Appeals

634 S.W.3d 704

Lee Allen FISHER, Appellant,

v.Nina M. SLINGER, Respondent,andKeith A. Mayer, Respondent.

WD 84058

Missouri Court of Appeals, Western District.

Filed: October 26, 2021

Michael P. Swisher, Lee's Summit, for appellant.

John S. King, Blue Springs, and Linda P. Marshall, Overland Park, for respondents.

Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt and Edward R. Ardini, Jr., Judges

Lisa White Hardwick, Judge

Lee Fisher appeals from the circuit court's judgment denying his motion to be appointed guardian and conservator of his sister, Nina Slinger, and granting Keith Mayer's competing motion for appointment. Fisher contends that the circuit court misapplied the factors for the order of appointment priority in Section 475.050.¹ For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Slinger is 87 years old. Fisher is Slinger's brother, and Mayer is her nephew by marriage. Mayer and his wife have a close relationship with Slinger. Mayer has been assisting Slinger with her medical, financial, and personal wellbeing since roughly 2010, when her husband died. In 2012, Slinger added Mayer to her bank accounts so he could better assist her financially if necessary. In 2015, Slinger granted Mayer a durable power of attorney for all general purposes, and Mayer contends a second power of attorney was also granted for medical decisions. The document pertaining to medical decisions was lost, however, so Slinger and Mayer executed a new document in 2018. From 2015 to 2018, Mayer assisted Slinger with personal, financial, and healthcare issues, which included selling her home and moving her to an independent living apartment.

In 2018, Slinger was diagnosed with dementia. In August 2019, members of Slinger's family took her to Fisher's house to stay with him. Contrary to Mayer's expectations that the visit would last a week, Fisher kept Slinger at his home for roughly a year until after the trial. Mayer had limited contact with Slinger during that time. Fisher filed a petition for appointment of guardian and conservator on August 16, 2019, and an amended petition on March 23, 2020. Mayer filed a competing petition for appointment on August 26, 2019.

At the bench trial, the court considered testimony and medical evidence of Slinger's cognitive decline, and the parties stipulated to Slinger's incapacity and need for a guardian and conservator. Slinger also testified at trial that she wanted Fisher to be her guardian, but, among other indications of mental decline, she did not remember her relationship to Mayer, did not remember requesting that her daughter be appointed a few months prior, did not know Fisher's address or where she had lived at the independent living apartment, and greatly underestimated how long she had been staying with Fisher and why.

After trial, the circuit court entered its judgment ordering that Fisher's motion to be appointed guardian and conservator be denied and that Mayer's competing motion be granted. Fisher filed a motion for new trial, which was denied. Fisher appeals.

STANDARD OF REVIEW

We will affirm the circuit court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). "Substantial evidence is evidence which, if true, is probative of the issues and from which [the trier of fact] can decide the case." Hayes v. Price , 313 S.W.3d 645, 650 (Mo. banc 2010). "A claim that the judgment erroneously declares or applies the law ... involves review of the propriety of the trial court's construction and application of the law." Pierce v. Mo-Kan Sheet Metal Workers Welfare Fund , 616 S.W.3d 409, 413 (Mo. App. 2020). "Against-the-weight-of-the-evidence review is very deferential. A judgment is only reversed in rare cases, when the reviewing court has a firm belief that the decree or judgment is wrong." Matter of A.L.R. , 511 S.W.3d 408, 414 (Mo. banc 2017).

ANALYSIS

Prior to addressing the merits of Fisher's points on appeal, we must address the deficiencies in his briefing. Mayer contends that Fisher's amended brief violates Rule 84.04 in that it fails to provide an adequate statement of facts and raises multifarious points on appeal. We agree. Fisher's statement of facts contains only three sentences and is very similar to the deficient statement of facts in Moore v. Quirk , 81 S.W.3d 717, 720 n.1 (Mo. App. 2002) :

Appellants’ statement of facts is two paragraphs and one sentence long. It is merely a recitation of the procedural history of the case. Rule 84.04(c) requires the statement of facts to be a fair and concise statement of the facts relevant to the questions presented for determination without argument. The facts should define the scope of the controversy and afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Appellants’ recital of the facts is deficient and violates Rule 84.04(c). We do not dismiss Appellants’ appeal on this basis, however, because the argument section of Appellants’ brief provides this court with an understanding of the issues raised.

(internal citations and quotation marks omitted). Similarly, because the argument portion of Fisher's brief allows us to understand the issues raised, we will not dismiss the appeal on the basis of the deficient statement of facts. See id.

In addition to the deficient statement of facts, Fisher's three points on appeal allege "[that the circuit court's decision was] contrary to law, [that the circuit court] erroneously declared or applied the law, [and that its decision] was not supported by substantial evidence and [was] against the weight of evidence." Each of these arguments is separate and distinct from the other and must be asserted in separate points on appeal. In re Marriage of Blanchard , 613 S.W.3d 879, 886 (Mo. App. 2020). Multifarious points on appeal preserve nothing for appellate review and are grounds for dismissal. Id. Nevertheless, because of our preference to reach the merits of every appeal, and because we can address Fisher's arguments without acting as his counsel, we will gratuitously address the merits of Fisher's claims. See Buckley v. Tipton , 270 S.W.3d 919, 922 (Mo. App. 2008) (noting our longstanding preference to reach the merits of every appeal).

In his first point on appeal, Fisher contends the circuit court erred in finding that Slinger's request to have him appointed as guardian and conservator was not reasonable. In reaching its decision to deny Fisher's motion, the court considered Section 475.050.1, which lists the order in which guardians and conservators must be selected for appointment. In relevant part, Section 475.050.1(1)-(4) reads:

Before appointing any other eligible person as guardian of an incapacitated person, or conservator of a disabled person, the court shall consider the suitability of appointing any of the following persons, listed in the order of priority, who appear to be willing to serve:

(1) If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person nominated by the person;

(2) Any eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at the incapacitated or disabled person's request, before the inception of the person's incapacity or disability;

(3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person; (4) Any other eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative.

The court found that, based on the evidence of cognitive decline presented, Slinger could not communicate a reasonable choice for who should be appointed as her guardian and conservator. Thus, it found that Fisher did not meet the requirement for priority under Section 475.050.1(1). The court then found that Mayer met the second tier of priority under Section 475.050.1(2) by way of his valid durable power of attorney. The court, therefore, found...