In re Domey
| Decision Date | 29 October 2008 |
| Docket Number | No. 2007–786.,2007–786. |
| Citation | 960 A.2d 729,157 N.H. 775 |
| Court | New Hampshire Supreme Court |
| Parties | In re GUARDIANSHIP OF Donald A. DOMEY. |
Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C. Kissinger, Jr. on the brief and orally), for petitioner Larrie Bratko, Guardianship Services of New Hampshire.
Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and Andrew J. Piela on the brief, and Mr. Marr orally), for petitioner George Domey.
Kalil & LaCount, of Rye (Earl L. Kalil, Jr. on the brief and orally), for the respondent.
The petitioners, Larrie Bratko and George Domey, co-guardians over the person and estate of Donald Domey, the ward, appeal a decision of the Hillsborough County Probate Court (Cloutier, J.) awarding the respondent, Judith Domey, damages and support arrearages. We reverse.
The record supports the following facts. In October 2003, Donald Domey suffered a stroke
that rendered him totally incapacitated. He became a patient in the rehabilitative unit at Greenbrier Terrace Rehabilitation Center (Greenbrier) in Nashua until November 2004, when he was moved to a long-term care room.
In February 2004, his brother, George Domey, filed an ex parte petition seeking a guardianship over his person and estate. The petition alleged that Donald's wife, Judith, had failed to act in Donald's best interest, had engaged in physically and verbally abusive behavior toward him and had forced him to execute legal documents despite his incapacity. In March, the probate court appointed George Domey and Larrie Bratko, a professional guardian, as co-guardians. The court also appointed Attorney Jody Wilbert as guardian ad litem for Donald.
Over the ensuing months, the co-guardians attempted to identify Donald's assets, a task made difficult because of Judith's lack of cooperation and an atmosphere of mistrust between the parties. In May, the co-guardians filed a motion to compel Judith to allow an appraisal of the marital home in Salem and to produce a complete list of all accounts and holdings that were either in Donald's name or held jointly by them. The guardian ad litem filed a report with the court supporting the motion, indicating that she remained involved in this matter "in particular, because the guardians have been thwarted in their efforts to perform their duty to provide for the physical wellbeing of the ward, as well as to prepare an inventory of the assets of the ward." She concluded that Judith, "together with various of her children and her parents, either cannot or will not cooperate with the duly appointed guardians" and that it "is clear that the Court's intervention is necessary to assure that the guardians have access to financial information so that they can establish a plan that will provide for both the ward and for his wife." The court granted the motion.
In September, the guardian ad litem filed a supplemental report with the probate court. She concluded that
Larrie Bratko completed an inventory in December, which showed more than $730,000 in total assets. Of these, approximately $353,177 were liquid assets and approximately $385,500 were real estate, primarily the marital home. Additionally, Donald's estate had an income of approximately $5,700 per month, including pensions and social security. The probate court approved the inventory filing.
In January 2005, Greenbrier notified the co-guardians that the overdue bill for services to Donald exceeded $63,000. Although Judith had informed the co-guardians that her husband had long-term disability insurance coverage, when he was moved from rehabilitative care to long-term custodial care, his expenses ceased to be covered. Larrie Bratko then filed a motion to liquidate Donald's assets in order to pay the Greenbrier bills, which the court granted.
In April, Judith filed petitions for spousal support and estate planning. The co-guardians objected to both, noting that there "[was] no specific statutory authority or guidelines within NH RSA 464–A:26–a for the relief requested." The co-guardians also expressed concern about Judith's failure to cooperate with their efforts to identify Donald's assets. In addition, they noted that the proposed estate plan "creates a foreseeable risk that the ward will be deprived of sufficient assets to cover his needs."
The guardian ad litem also objected, noting that "this case differs from many similar cases in that the Guardian ad Litem has more than adequate reason to believe that the ward ... needs additional protection beyond that which would be afforded if he were merely a Medicaid recipient." As she explained, The guardian ad litem concluded that Judith's past conduct led the guardian ad litem to believe that it was not in Donald's best interest for her to support the petition for estate planning absent monetary protection for his needs.
In September, the probate court approved the parties' stipulation for estate planning and for spousal support. The stipulation provided that the co-guardians were to pay Greenbrier any outstanding balance; pay $50,000 into a special needs trust for Donald's benefit; pay enough assets to Judith to bring the assets held in her name to the Medicaid spousal resource limit of $95,100; prepay Donald's funeral expenses; apply the remainder of the assets towards the Domeys' outstanding mortgage on the homestead in Salem; and transfer to Judith all of Donald's interest in real estate in Pittsburg, New Hampshire and Florida. In addition the co-guardians were to pay monthly support to Judith out of her husband's income.
By October, it became apparent that there were significantly fewer assets in the estate than the parties realized at the time of the stipulation because Donald's care at Greenbrier had eroded the liquid assets of the estate, leaving approximately $75,000. In January 2006, Donald qualified for Medicaid. The co-guardians submitted annual accountings to the probate court for the years 2004–2007. Judith objected to each of the accountings and requested a hearing. Following a three-day bench trial in June 2007, the court issued an order removing the co-guardians and awarding Judith damages of $84,838 and support arrearages of $33,415.
On appeal, the petitioners argue that the probate court erred: (1) by finding that they breached duties owed to Judith and ruling that they were personally liable for such damages; and (2) by ruling that they breached a duty to conduct estate planning prior to the time court authorization had been obtained.
"The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567–A:4 (2007). "Consequently, we will not disturb the probate court's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law." In re Angel N., 141 N.H. 158, 161, 679 A.2d 1136 (1996) (quotation and brackets omitted).
The first issue is whether the probate court erred in ruling that the petitioners had a fiduciary duty to impoverish the ward in...
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