In re Estate of Curtis
| Decision Date | 09 November 2016 |
| Docket Number | A16A1259 |
| Citation | 339 Ga.App. 363,793 S.E.2d 554 |
| Parties | IN RE: ESTATE OF Jimmy CURTIS. |
| Court | Georgia Court of Appeals |
Kevin Curtis Crayon II, Kennesaw, for Appellant.
G. Phillip Beggs, Marietta, for Appellee.
Jimmy Curtis, an adult ward, appeals from the superior court's order denying his motion to modify his conservatorship. In that motion, Curtis sought to replace his conservator, Robert Long, with Virginia Hilton or Cuddell Ollis, two of his sisters. We affirm for the reasons set forth below.
Long is Curtis's brother-in-law, married to a third sister, Jewel Long. The probate court named Long as Curtis's conservator in an order dated August 28, 2013. Less than two years later, on April 30, 2015, Curtis filed a motion in probate court to modify his conservatorship, requesting that either Hilton or Ollis replace Long as his conservator. Curtis's motion asserted that Long had breached his duties under OCGA § 29–5–22, by consistently failing to consider Curtis's expressed desires and personal values, failing to communicate with or be reasonably accessible to him, and failing to uphold his dignity and respect. See OCGA § 29–5–22 (b) (1), (2). Under Georgia law, where, as here, "the petition for modification does not allege a significant change in the capacity of the ward," a court has discretion to modify a conservatorship "upon a showing that the modification is in the ward's best interest." OCGA § 29–5–71 (c). After holding a hearing on the motion, the probate court denied the motion in an order dated June 4, 2015, based on a finding that "no evidence was offered that proves any misdoing or misusing of any of the ward's funds by the conservator."
See also OCGA § 29–5–70 (a).2 "The filing of the de novo appeal in superior court has the same effect as if it had been commenced originally in the superior court," and the superior court's task "is to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial." (Citations and punctuation omitted.) Long v. Greenwood Homes, Inc. , 285 Ga. 560, 562, 679 S.E.2d 712 (2009). See also In re Estate of Wade , 331 Ga.App. 535, 536, 771 S.E.2d 214 (2015).
Thus, Curtis bore the burden on appeal to the superior court to show by clear and convincing evidence that the requested modification was in his best interest. OCGA §§ 29–5–71 (c) (best interest standard); 29–5–110 (a) (burden of clear and convincing evidence).3 The superior court found that Curtis did not meet his burden. "Absent an abuse of discretion, we will not reverse [a lower] court's determination as to who will serve an individual's best interests as conservator." Cruver v. Mitchell , 289 Ga.App. 145, 146 (1) (a), 656 S.E.2d 269 (2008).
1. In his first enumeration of error, Curtis asserts that the superior court incorrectly found that Curtis was not denied a right or privilege by Long because Long did not make himself reasonably accessible, improperly disposed of Curtis's property, and failed to treat him with dignity and respect. See OCGA §§ 29–5–20 (a) (2), (6) ; 29–5–22 (a), (b) (1) & (2); 29–3–35.
The evidence from the hearing on Curtis's motion demonstrated that Long was substantially performing his duties as Curtis's conservator, and it is undisputed that Curtis's health and financial situation had improved since his appointment. Curtis admitted that Long spoke with him on the phone approximately once a month and had come to see him four times in a six-month period. The evidence also supported a finding that they communicated about Curtis's financial affairs. To the extent that the evidence was disputed, for example, as to whether Long treated Curtis without the requisite respect or whether he properly communicated with him, we must defer to the superior court judge, who observed the testimony in person, to weigh and resolve any conflicts in the evidence. See Cruver , 289 Ga.App. at 147 (1) (b), 656 S.E.2d 269 (). Additionally, Curtis presented no evidence to dispute Long's testimony that he sold Curtis's property at the probate court's specific direction and that the money was placed in Curtis's bank account. Curtis admitted that he had no evidence to show that Long had ever stolen anything from him.
Although Hilton testified she was willing to act as his conservator, she was ambivalent about whether he actually needed a conservator, a point Curtis himself did not contest. And though both Ollis and she stated that they frequently spoke with Curtis on the phone, neither had made an effort to visit Curtis in person at the VA facility to investigate his current living conditions, and they had made no apparent effort to determine his financial situation. In addition, there was evidence that Curtis inappropriately spent his allowance4 on other people, including his sisters, by sending them his debit card in the mail for their use.
Based on this and the other evidence presented, we cannot say that the superior court abused its discretion in finding that Curtis failed to show by clear and convincing evidence that he was denied a right or privilege by Long as provided in OCGA § 29–5–22.
2. In a related enumeration of error, Curtis contends that the superior court erred in not allowing him to obtain a...
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