In re Doe
| Decision Date | 30 December 2009 |
| Docket Number | No. 36386-2009.,36386-2009. |
| Citation | 224 P.3d 499 |
| Parties | In the Matter of Jane DOE and John Doe, Children Under the Age of 18. Fred Heiss, Annabelle Heiss, and Maia Heiss, Petitioners-Respondents-Cross Appellants, v. Violetta Conti, Respondent-Appellant-Cross Respondent. |
| Court | Idaho Supreme Court |
Liesche & Reagan, Coeur d'Alene, and Tolin & Victoria, LLP, Seattle, for appellant. Anna M. Tolin argued.
Finney Finney & Finney, Sandpoint, for respondents. Rex A. Finney argued.
This is an appeal from a judgment denying a petition to remove a testamentary guardian of two orphaned minor children. We affirm in part and reverse in part the judgment of the magistrate court.
Jane Doe, age 11, and John Doe, age 6, (Children) resided with their parents Karl Heiss (Karl) and Marisa Bauducco-Heiss (Marisa) in Bonner County, Idaho. On October 1, 2008, the family left Idaho intending to travel to Argentina to spend six months with Marisa's mother, Violetta Conti (Conti), who resides in Ushuaia, Tierra del Fuego, at the southern tip of Argentina. They first traveled by car to Seattle, Washington, to visit close friends, and then intended to drive to Malibu, California, to visit Karl's parents, Fred and Annabelle Heiss (Heisses). From there they intended to drive to Los Angeles from where they would fly to Argentina, expecting to arrive on October 14, 2008.
In 2002, Karl and Marisa (Parents) had both executed holographic wills naming Conti as Children's guardian in the event of Parents' deaths. They had entrusted their close friends in Seattle with the wills. On the morning of October 3, 2008, the family had left their friends' house in Seattle and were driving south on I-5 when they were involved in a tragic accident. Parents were killed instantly, Jane Doe suffered life-threatening injuries that will result in permanent impairment, and John Doe suffered injuries from which he has recovered.
On October 22, 2008, one of their Seattle friends, who was nominated in Parents' wills as personal representative, filed an application for informal probate, an application for informal appointment of personal representative, and an application for testamentary appointment of Conti as guardian of Children. On the same date, Conti filed her acceptance of appointment as guardian.
On October 23, 2008, Conti also filed a petition to be appointed guardian of Children. On the same day, the magistrate court entered an order appointing her as temporary guardian, and Conti filed letters of temporary guardianship.
On October 24, 2008, Heisses filed a petition to be appointed Children's temporary and permanent guardians. They also requested appointment of an attorney or guardian ad litem for John Doe.
Jane Doe was hospitalized in Seattle, Washington. Heisses obtained a temporary residence there to be near her. Conti and Heisses then entered into a stipulation providing that during the pendency of the proceedings Heisses could have custody of John Doe, with Conti having reasonable visitation; John Doe would remain in either Idaho or Washington; and Conti and Heisses together would make decisions regarding Jane Doe's care. On October 28, 2008, the court entered an order consistent with that stipulation, and that order was later amended pursuant to stipulation of the parties. The court also entered an order appointing counsel for Children.
On January 8, 2009, after a court hearing, the court informed the parties of its initial opinion regarding several issues in the guardianship proceedings. During that discussion, the court stated that in its opinion, the party challenging the testamentary appointment of a guardian must show that the guardian is unfit to be a guardian.
On January 29, 2009, Heisses and their daughter Maia Heiss filed a petition to have Conti declared unfit to be guardian of Children. The court held a three-day trial on the petition, and then entered its memorandum opinion on March 27, 2009. The court ruled that "the testamentary guardianship appointment must be upheld unless the guardian is found to be unqualified or unfit to discharge his or her inherent duties and responsibilities, and that the party challenging the fitness of the presumptive guardian bears the burden of proof." The court addressed the twenty-six different allegations of unfitness alleged by Heisses and found them unproven. The court concluded that they had failed to prove that Conti was unfit or unqualified to serve as Children's guardian. The court noted that "it is nonetheless comforting for the court to know that the children will enjoy a good life in Ushuaia." The court found that Conti was "a fit and proper person to discharge the duties of testamentary guardian." The court also wrote that "much of Heiss' case asserting Conti's unfitness did have the appearance of `grasping at straws.'"
Parents' wills stated that they desired Heisses to have the children for one month each year. The court construed those provisions as being testamentary appointments of Heisses as coguardians for one month each year. The court also held that due to Jane Doe's medical condition, Conti would not have full powers of guardianship over her until she was medically cleared to travel to Argentina. Until then, the court held that Conti and Heisses "shall continue to exercise their current de facto temporary powers of equal co-guardianship over [Jane Doe]."1 On April 9, 2009, the court entered its order appointing Conti and Heisses as coguardians.
On April 1, 2009, Heisses filed a notice of appeal to the district court. On April 13 2009, Conti filed a motion for permissive appeal to this Court, which was granted on April 23, 2009. She then filed a notice of appeal to this Court on May 5, 2009, and Heisses filed a notice of cross-appeal.
1. Did the court err in interpreting Parents' wills as including a testamentary appointment of Heisses as coguardians?
2. Did the court apply the wrong standard in denying Heisses' petition to remove Conti as guardian?
3. Did the court err in holding that Heisses were not entitled to the rights set forth in Idaho Code § 32-717(3)?
4. Is Conti entitled to an award of attorney fees for defending the cross-appeal?
5. Did the court err in ordering the parties to pay the cost of Children's court-appointed counsel?
Conti appeals the court's action in appointing Heisses as coguardians. Parents' wills were both handwritten, but Mother's will was written in Spanish and then translated into English for these proceedings. It is undisputed that Parents' wills are valid. It is also undisputed that both wills nominated Conti as guardian of Children. The issue is whether the wills also nominated Heisses as coguardians for one month each year.
The relevant portions of Parents' wills are as follows:
Karl's will:
In such case that we (Marisa Bauducco and Karl Heiss) should die, the surviving children ([Jane] and [John]) should be left in the care of (in this order) Violeta E. Conti (mother of Marisa Bauducco) [Marisa's sister], or [Marisa's brother]. If such possibility exists it would be our wish that they be able to raise them in our (Idaho) house. One month out of the year should be reserved for Anna and Fred Heiss (parents of Karl Heiss) to raise the children where they see fit to do so.....
Marisa's will:
In case that we (Karl Heiss and Marisa Bauducco) would die; the surviving children ([Jane] and [John]) will stay under the guardianship of Violeta E. Conti (Mother of Marisa) [Marisa's sister] or [Marisa's brother]. If at all possible we would prefer that the children and the guardians live and grow up in our house in Idaho. One month of the year should be reserved for Anna and Fred Heiss (Karl Heiss's parents), the place of the visit shall be decided by them.....
The court determined that Parents intended to execute identical wills with respect to the testamentary guardianship provisions, and the parties agree. "`[I]n construing the provisions of a will to ascertain the meaning of a testator, the cardinal rule of construction is to ascertain the testator's intent; and ... [t]his intent is to be ascertained from a full view of everything within the four corners of the instrument.'" Wilkins v. Wilkins, 137 Idaho 315, 319, 48 P.3d 644, 648 (2002).
In construing the wills, the court began with the observation that Parents wanted Children to maintain contact with Heisses. Father's will stated, "One month out of the year should be reserved for Anna and Fred Heiss (parents of Karl Heiss) to raise the children where they see fit to do so," and Mother's will stated, "One month of the year should be reserved for Anna and Fred Heiss (Karl Heiss's parents), the place of the visit shall be decided by them." The court then reasoned, however, that the "legally proper" way to insure that the Heisses would have that visitation would have been to make them coguardians. The court wrote as follows:
The legally proper method for accomplishing that goal, in this court's view, would have been to explicitly designate Heiss as limited co-guardians of the children, with Conti assuming the duties and powers of primary guardian during the remaining eleven months of the year. This approach is, in the court's opinion, preferable to interpreting said provisions as conferring "grandparents' visitation rights" which could be legally inadequate to allow Heiss to authorize medical treatment for the children in the U.S. in Conti's absence during their month of custody, or make international travel arrangements for the children, along with a host of other potential impediments.
The court then concluded that "[h]ad these legal nuances been properly explained to Karl and Marisa, the court believes that they would have specified Heiss as limited...
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