Guardianship of Claus, In re, 6

• Decision Date: 19 December 1969
• Docket Number: No. 6,6
• Citation: 172 N.W.2d 643,45 Wis.2d 179
• Parties: In re GUARDIANSHIP OF Olag O. CLAUS. Olga O. CLAUS, Appellant, v. Carol E. LINDEMANN, Guardian, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 643

172 N.W.2d 643

45 Wis.2d 179

In re GUARDIANSHIP OF Olag O. CLAUS Olga O. CLAUS, Appellant, v. Carol E. LINDEMANN, Guardian, et al., Respondents.

No. 6.

Supreme Court of Wisconsin.

Dec. 19, 1969.

On March 6, 1967, the appellant, Olga O. Claus, was adjudged incompetent, and the respondent, Carol E. Lindemann, was appointed as guardian of the person and estate of the appellant. Appellant was neither present nor represented by a guardian ad litem at the hearing as to her competency. At the time of the hearing, appellant was a patient at the Milwaukee County Health Center. (The superintendent certified that her presence at the hearing was not possible.)

On June 28, 1968, in proceedings brought pursuant to ch. 51, Stats., the appellant was found to be not mentally ill and discharged. On July 17, 1968, appellant petitioned the county court for termination of the guardianship as to both her person and her estate. The trial court terminated the guardianship over the person of the appellant, but continued the guardianship over the estate. The appeal is from the portion of the order which denied a termination of the guardianship over the estate.

L. William Connolly, Milwaukee, for appellant.

R. J. Schimmel, Milwaukee, for respondent guardian; Arnold, Murray & O'Neill, Milwaukee, of counsel.

ROBERT W. HANSEN, Justice.

Several specific issues are raised on this appeal. All are to be considered against the general background or frame of reference that we deal here with the endeavor of a person placed under guardianship to terminate such guardianship. This court was held that since the appointment of a guardian over a person or a person's estate is serious and significant court action, ¹ the exacting jurisdictional requirements of ch. 319, Stats., dealing with appointment of guardians, must be met. ² If follows that the same concern for compliance with the statutes and concern for the rights of the person placed under guardianship must be given to proceedings for termination of such guardianship.

JURISDICTIONAL DEFECT.

Appellant here contended at the termination hearing that her absence from the original guardianship hearing constituted a jurisdictional defect and that the original appointment of the guardian was invalid. It is statutorily provided that the alleged incompetent be present at the guardianship hearing, ³ and this court recently has reaffirmed that the trial court at such a hearing must take affirmative steps to insure either that the alleged incompetent is present or that the presence of such person is not possible. ⁴

The trial court here ruled that such challenge to the jurisdiction of the court in appointing the guardian could not be raised at a hearing on a petition for termination.' This would limit the scope of the hearing on a petition for termination to the question of return to competency. As to the initial finding of incompetency, as made by a colleague on the bench, the trial court asks: 'Now by virtue of what authority does this court attempt to review or sit as an appellate court to the other branch's decision?'

The answer is that authority exists by virtue of the holding of this court in Guardianship of Nelson. ⁵ It is true that that case held that the question of the original court's jurisdiction may not be questioned at a hearing to settle the final account of the guardian. However, as to earlier opportunities to raise the question of jurisdictional defects, the court stated:

'This is not to say that the original determination of incompetency is not open to review. In addition to a direct appeal of the initial order, any interested party at any time during the guardianship may petition for a rehearing seeking revocation of the guardian-ward status. At this rehearing an attack may be made both upon the jurisdiction of the court making initial appointment and upon the sufficiency of the evidence supporting a finding of incompetency.' ⁶

It is clear that at a rehearing the petitioner may seek a revocation of the guardianship due to defects in the original proceeding as well as a termination of the guardianship due to the change in competency of the ward. The reference to a petition '* * * seeking revocation of the guardian-ward status' must be read to include a petition for termination as well as petition for rehearing. Both may be brought at any time during the guardianship, and both are '* * * proceedings in which the previously adjudged incompetent has alleged that he is now competent.' ⁷

The reasoning of the Nelson case in allowing challenges to the original court's jurisdiction on a rehearing applies as well to a petition for termination. It follows that the appellant was entitled to challenge the jurisdiction of the court which originally appointed the guardian over her person and estate at the hearing on her petition for termination.

PROPER PLEADING.

Respondent abandons the position of the trial court as to the right to challenge initial jurisdiction on a petition for termination in favor of claiming that such challenge must be clearly set forth in the petition for termination. This is a much closer question. The respondent argues that '* * * the issues to be brought to the attention of the court should be contained in the petition.' Generally, this is the rule. However, we return to the starting blocks to emphasize that, in proceedings involving competency and guardianships, there must be an insistence that statutory procedures be strictly complied with and special concern shown for the rights of the person who is the subject of the competency hearing. While it is clear that the appellant was not present at the initial guardianship hearing and was not represented by a guardian ad litem, we do not deal here with whether there was a jurisdictional defect in the original proceeding. We deal only with whether or not the person then found to be incompetent had the right on her petition for rehearing to raise the issue of jurisdictional defect in the original proceedings. Here the petition for termination did include a prayer for '* * * such other and further relief as is just and equitable.' Under the special situation here presented, we hold that this prayer for additional relief preserves the right to assert a jurisdictional defect in the original proceedings for appointment of a guardian. It certainly negatives any waiver of such right.

EXCLUSION OF DEPOSITION.

On September 21, 1968, appellant's counsel conducted an adverse examination of the respondent-guardian. At the termination hearing on October 9, 1968, appellant's counsel called the respondent as an adverse witness. Thereupon appellant's counsel sought to introduce various portions of the adverse examination into evidence to impeach the testimony of the respondent. It then developed that the original transcript of the adverse examination proceedings had not been filed in court, as statutorily required. ⁸ At least it was not in the folder of the case as it would or should have been if timely filed. Both attorneys had copies, and there was a discussion as to accepting a copy in lieu of the original. The stipulation of counsel that this be done was not forthcoming, so appellant's counsel moved for a brief adjournment, presumably to locate or produce the missing original. Such motion was denied. Appellant now claims that the...