In re Conservatorship of A.M.M.

• Decision Date: 23 August 2016
• Docket Number: No. DA 15–0141.,DA 15–0141.
• Citation: 2016 MT 213,380 P.3d 736,384 Mont. 413
• Parties: In the Matter of the GUARDIANSHIP and Conservatorship OF A.M.M., An Incapacitated Person.
• Court: Montana Supreme Court

384 Mont. 413

380 P.3d 736

2016 MT 213

In the Matter of the GUARDIANSHIP and Conservatorship OF A.M.M., An Incapacitated Person.

No. DA 15–0141.

Supreme Court of Montana.

Submitted on Briefs June 1, 2016.

Decided Aug. 23, 2016.

Rehearing Denied Sept. 27, 2016.

For Appellant: Genet McCann, Avalon Law, LLC, Big Sky, Montana.

For Appellee: Tammy Wyatt–Shaw, Marcel A. Quinn, Hammer, Quinn & Shaw, PLLC, Kalispell, Montana, Clinton, Fischer, Casey Emerson, Fischer Law Offices, P.C., Polson, Montana, (Attorneys for Appellee/Guardian Emerson), Douglas J. Wold, Wold Law Firm, P.C., Polson, Montana, (Attorney for Co–Conservators).

Justice LAURIE McKINNON

delivered the Opinion of the Court.

¶ 1 Timothy McCann and Genet McCann appeal from three groups of orders entered by the Twentieth Judicial District Court, Lake County, in its efforts to oversee the guardianship and conservatorship of their elderly mother, A.M.M., including the preliminary injunction, Rule 11

sanctions, and request for recusal.¹ This is Timothy's second appeal to this Court in this matter. Appellees Paul McCann Jr. and Polson attorney Douglas J. Wold (together, Co–Conservators) and Casey Emerson (Guardian) submitted briefs in response. Genet, an attorney, represents herself and Timothy on appeal. Wold represents himself and Paul Jr. on appeal. We affirm.

¶ 2 Timothy and Genet raise twelve issues on appeal. We find the following three issues dispositive and restate them as:

1. Whether the District Court abused its discretion by granting Guardian's motion for a preliminary injunction.

2. Whether the District Court erred by denying Genet's motion to recuse.

3. Whether the District Court erred by sanctioning Genet.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Born in 1922, A.M.M. is the widowed mother of eight adult children: William, Thomas, Paul Jr., Miriam, Genet, Timothy, Kathleen, and Sheila.² On March 14, 2014, the District Court concluded A.M.M. is an incapacitated person as defined by § 72–5–101(1), MCA

. To protect A.M.M. and her substantial assets, the court appointed Polson attorney Casey Emerson as A.M.M.'s guardian; and son Paul Jr., son Timothy, and Wold as A.M.M.'s joint conservators. On October 7, 2014, the court granted Timothy's voluntary withdrawal as Co–Conservator.

¶ 4 On January 2, 2015, Guardian filed a motion for preliminary injunction and temporary restraining order asking the District Court to enjoin Timothy and Genet from engaging in certain activities Guardian believed were detrimental to A.M.M.'s health. On January 7, 2015, the court held a hearing on Guardian's motion. The morning of the hearing, Genet acted as Timothy's attorney by filing a pleading on his behalf. However, twelve minutes before the hearing, Timothy filed a “Notice of Withdrawal of Attorney and My Appearance Pro Se.” At the hearing, the court denied Genet leave to withdraw as Timothy's attorney due to Genet's failure to comply with the rules governing withdrawals and because “[t]his is the latest in a pattern of conduct in which Tim has attempted to frustrate and delay scheduled hearings, which began with the earliest hearings in this case.” Genet did not appear at the hearing. Timothy was physically present, but the court denied him leave to appear pro se because he had counsel of record, Genet.

¶ 5 On February 4, 2015, the District Court issued findings of fact, conclusions of law, and a preliminary injunction. The court found A.M.M. “suffers from dementia

and other health conditions which are exacerbated by stress, anxiety, and sleep interference” and, according to her treating physician, “[a]nything that contributes to a higher stress and anxiety level is detrimental to her physical, mental and emotional well-being.”

¶ 6 The District Court found Timothy and Genet had engaged in activities negatively impacting A.M.M., her caregivers, and Guardian. For example, Timothy and Genet “strongly objected” to a trip A.M.M. planned to take during winter to visit her daughter Sheila where she lived in California. “Although they would apparently not object to [A.M.M.] going to Arizona or Hawaii with Tim accompanying her, they contended this trip to California would be detrimental to her health.” They tried to prevent her from going. Evidence in the record showed that they “loudly read the newspaper, within [A.M.M.'s] hearing, about the Air Asia plane crash,” talked about earthquakes in California, and took A.M.M. to a new doctor and “coached her to be ‘strong’ and tell this doctor that she did not want to go.” Timothy and Genet “have disparaged and insulted” A.M.M.'s caregivers, called one an obscene name, accused others of stealing towels or glasses, and created an “unpleasant and difficult work environment for these caregivers.” Timothy and Genet “have interfered with and ignored the authority of the Guardian” and “have been inappropriately aggressive and accusatory toward the Guardian.” The court found further:

Two of [A.M.M.'s] children, Tim McCann and Genet McCann, during the pendency of this action, have acted in ways that caused significant stress and anxiety to [A.M.M.]. This situation has continued for a year. It appears that Tim and Genet love their mother, but do not grasp that their actions are harming her. Both are intelligent, educated people. However, despite repeated and clear attempts to communicate this reality to them (that their actions are harming their mother's health), they appear to either be unable to understand this, or unable or unwilling to modify their behavior. Any judge would be reluctant to restrict adult children's time with their mother, but this situation should not be allowed to continue.

¶ 7 The District Court's preliminary injunction restricted Timothy and Genet's time with A.M.M., but allowed them to attend church with A.M.M. and visit her, at her home, between 9 a.m. and 12 p.m., if she was awake and either a caregiver or Guardian was present. The injunction stated that the restrictions did not apply to family gatherings where other siblings or relatives were present. It also provided that either Timothy or Genet could request a modification of its terms. The preliminary injunction required Timothy and Genet to return their keys to A.M.M.'s home. It also enjoined them from discussing, either with or in front of A.M.M., “financial matters, legal proceedings, feuds or difficulties between siblings, or any other matters which will foreseeably cause additional stress and anxiety for [A.M.M.]” or “make derogatory remarks within [A.M.M.'s] hearing, about the Guardian, Conservators, caregivers, or any relatives” and “[t]hey shall not speak with [A.M.M.] about this Preliminary Injunction.”

¶ 8 On February 13, 2015, Co–Conservators filed a motion for Rule 11

sanctions against Genet, but later withdrew it. On March 2, 2015, Genet filed a request for Rule 11 sanctions against Wold and a request that Judge Manley recuse himself. Genet argued she should not be sanctioned, but that Wold should be sanctioned for filing “frivolous Motions,” and accused Judge Manley of “bias,” being in an “unethical association” with Wold, and employing Wold's daughter as his judicial assistant. Both “requests” were denied. On May 22, 2015, Genet filed a motion for recusal wherein she reiterated her earlier arguments, accusation of bias, and added felonious accusations against Guardian, alleging she had committed “criminal tampering with a subpoenaed witness” and “engaging in official criminal misconduct.”

¶ 9 In its June 24, 2015, order, the District Court noted that during the hearing on May 22, 2015, Genet was “contrite and apologetic for her words and tone used in her pleadings.” The court noted that Genet cited her lack of legal experience for her conduct and appeared to be sincere. “However, three minutes before the hearing began, [Genet] filed a 22 page motion for recusal and brief. This was similar to previous motions for recusal filed herein, except perhaps even more vitriolic.” Genet “filed this offensive pleading pro se, even though she was represented by two attorneys who were, in fact, personally present in the courtroom across the hall from the clerk's office.” The court concluded the motion's “allegations of misconduct against Mr. Wold and the Court are without factual or legal basis, and were made without inquiry reasonable under the circumstances.” The court noted “[t]he juxtaposition of [Genet's] oral contrition and written vitriol is unusual, to say the least, and raises serious question[s about] whether she is capable of conforming her behavior to acceptable standards of practice and civility.” Genet had formed a “pattern of frivolous, incompetent, offensive and unfounded allegations made against numerous attorneys and others in past pleadings.” The District Court found her in violation of Rule 11

and imposed sanctions. Genet was required to pay reasonable attorney fees and costs incurred by Guardian and Co-conservators in connection with the Rule 11 matter and prohibited from filing “any other pleadings in this case, unless such pleading is also signed by a licensed, practicing Montana lawyer.” Genet and Timothy appeal, asserting various constitutional violations and other forms of prejudice suffered at the District Court.

STANDARDS OF REVIEW

¶ 10 A district court has broad discretion to grant or deny a preliminary injunction and we review the court's decision for an abuse of that discretion. Cole v. St. James Healthcare, 2008 MT 453, ¶ 9, 348 Mont. 68, 199 P.3d 810

(citations omitted). We review a district court's findings of fact to determine whether they are clearly erroneous and its conclusions of law for correctness. In re Charles M. Bair Family Trust, 2008 MT 144, ¶ 28, 343 Mont. 138, 183 P.3d 61 (citations omitted). “ [W]e will review a judge's disqualification decision de novo, determining whether the lower court's decision not to recuse was correct under the Montana Code of Judicial Conduct.” State v. Dunsmore, 2015 MT 108, ¶ 10, 378 Mont. 514, 347 P.3d...