In re Estate of A.H.E.

• Decision Date: 29 November 2016
• Docket Number: DA 16-0304
• Citation: 384 P.3d 114 (Table),386 Mont. 4
• Parties: In the Matter of the Estate of: A.H.E., an Incapacitated Person.
• Court: Montana Supreme Court

386 Mont. 4

384 P.3d 114 (Table)

In the Matter of the Estate of: A.H.E., an Incapacitated Person.

DA 16-0304

Supreme Court of Montana.

Submitted on Briefs: November 2, 2016

Decided: November 29, 2016

For Appellant: David Duke, Duke Law Firm, Billings, Montana.

For Appellee: Michael Usleber, Terry L. Seiffert, Attorneys at Law, Billings, Montana.

Justice Michael E Wheat delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 The parties in this case are involved in two court proceedings: a guardianship proceeding in the Thirteenth Judicial District Court, Yellowstone County (hereinafter Yellowstone District Court), and a partnership removal proceeding in the Eighteenth Judicial District Court, Gallatin County (hereinafter Gallatin District Court). It is an order in the Yellowstone District Court proceeding that is the subject of this appeal, but the Gallatin District Court proceeding will be referenced when necessary.

¶ 3 A.H.E. is 90 years old and is incapacitated, suffering from dementia and blindness. She is the mother of son Ian and daughter Cindy. In 2006, A.H.E. and her husband, who died in 2010, established a limited partnership named StarFire L.P. A.H.E. owns a 96.34% interest in StarFire and Cindy and Ian each own 1.83% interest. A.H.E. has lived with and been cared for by Ian since January 2011. Until December 2014, A.H.E. received approximately $3,300/month in pension, social security and rental property income from StarFire. After December 2014, as discussed below, A.H.E. stopped receiving rental income from StarFire and receives approximately $2,350/month in social security and pension.

¶ 4 On October 24, 2014, StarFire brought an action against Ian in the Gallatin District Court seeking to remove Ian as a general partner of StarFire. On October 29, 2014, Ian, acting pro se, petitioned the Yellowstone District Court to be appointed temporary and permanent guardian and conservator of A.H.E. Ian alleged that Cindy was financially exploiting their mother through control of StarFire. He claimed that Cindy was attempting to remove him as an equal general partner and that she intended to sell A.H.E.'s assets and retain the funds. Following a hearing in late November 2014, the Yellowstone District Court appointed Ian as his mother's permanent guardian and Joyce Wuertz, an independent accountant, as A.H.E.'s conservator.

¶ 5 In December 2014, the Gallatin District Court issued an order acknowledging a $60,000 sale of StarFire property to the Amsterdam School District and ordered that the funds be placed with the Gallatin District Court. The court also prohibited Ian and Cindy from withdrawing any funds from StarFire's bank accounts without each other's written consent or approval by the court. In a January 2015 order, the Gallatin District Court issued an order declining to consider pending motions in the injunction case until newly-appointed Wuertz had the opportunity to develop her positions in the Yellowstone District Court guardianship proceeding. In March 2015, Wuertz attempted to resolve the disputes between the siblings; however, no stipulation or agreement could be established. Consequently, for several months Wuertz was without funds to pay StarFire's expenses or the full expenses for A.H.E.'s care.

¶ 6 In April 2016 Ian, acting pro se, moved to have Wuertz removed as conservator. Ian asserted, among other things, that Wuertz was ineffective in securing relevant records necessary to her duties as conservator and that she failed to properly evaluate A.H.E.'s assets or take a “position on behalf of A.H.E. regarding income.” Wuertz moved to have the Motion to Remove Conservator dismissed on the grounds that Ian's motion did not make a prima facie case under § 72-5-414, MCA. Ian objected to Wuertz's motion and on May 10, 2016, the Yellowstone District Court denied Ian's motion to remove Wuertz. Ian appeals. We affirm.

¶ 7 Ian argues that the Yellowstone District Court erred by denying his motion to remove the conservator. However, we do not review a district court's denial of a request to remove a conservator for error. We review such a decision for an abuse of discretion. See § 72-5-423, MCA (“[A] conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees.”); In re Baird , 2009 MT 81, ¶ 11, 349 Mont. 501, 204 P.3d 703 (Removal of a trustee is an exercise of discretion by the court.). See also In re Guardianship of Saylor , 2005 MT 236, ¶ 17, 328 Mont. 415, 121 P.3d 532. A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. In re Estate of Hannum , 2012 MT 171, ¶ 18, 366 Mont. 1, 285 P.3d 463.

¶ 8 Section 72-5-414, MCA, governs removal of a conservator for cause and states:

The court may remove a conservator for good cause, upon notice and hearing, or may accept the resignation of a conservator. After the conservator's death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of the predecessor.

¶ 9 Section 72-38-706, MCA, cited by both Ian and Wuertz in their appellate briefs, is applicable as well and governs removal of a trustee. It provides:

(1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

(2) The court may remove a trustee if:

(a) the trustee has committed a serious breach of trust;

(b) lack of cooperation among cotrustees substantially impairs the administration of the trust;

(c) because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively and impartially, the court

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