In re Estate of Pond

• Decision Date: 27 September 2016
• Docket Number: A16A0899
• Citation: In re Estate of Pond, 338 Ga.App. 696, 791 S.E.2d 592 (Ga. App. 2016)
• Parties: Estate of Milton Theophilus Pond, II.
• Court: Georgia Court of Appeals

338 Ga.App. 696

791 S.E.2d 592

Estate of Milton Theophilus Pond, II.

A16A0899

Court of Appeals of Georgia.

September 27, 2016

J. Hamrick Gnann Jr., Daryl J. Walker, Savannah, for Appellant.

John E. Pirkle, Hinesville, Milton Theophilus Pond, for Appellee.

Dillard, Judge.

The probate court granted Milton Pond guardianship of his 21–year–old son, M.P., who is a person with autism.¹Yolanda Pond, Milton's former wife and M.P.'s mother, appeals that decision, arguing that the court erred in finding that it had personal jurisdiction over M.P., granting guardianship to Milton absent clear and convincing evidence in his favor, and applying the incorrect standard of proof for selection of a guardian.For the reasons set forth infra , we affirm.

The record shows that M.P., Milton and Yolanda's adult son, was diagnosed with autism when he was three years old.In 1997, Yolanda was granted physical custody of M.P., and since that time, he has lived with his mother during each school year in Fayetteville, North Carolina, and with his father and stepmother during the summer in Savannah, Georgia.But in 2015, when M.P. was 20 years old, he refused to return to North Carolina after spending the summer with his father in Georgia.And on August 25, 2015, Milton filed a petition for guardianship of M.P.² in Chatham County, Georgia, asserting that guardianship was necessary because M.P. “lacks sufficient capacity to make or communicate significant responsible decisions concerning his ... health or safety.”In the petition, Milton claimed that, while M.P. “can make some of his own decisions at times, ... he needs ongoing guidance.”Specifically, Milton indicated that his reasons for seeking guardianship of his son were that M.P. needed ongoing training for independent living with daily assistance, safety supervision while cooking, assistance with physical medical and mental-health decisions, as well as assistance with other quality-of-life decisions.

Thereafter, the trial court ordered that M.P. be evaluated by a doctor in connection with Milton's request for guardianship.In addition, upon Milton's request, the court appointed an attorney/guardian ad litem to represent M.P. in this matter.Subsequently, in compliance with the court's order, the doctor evaluated M.P. and submitted a detailed report, in which he concluded that M.P. was incapacitated by reason of autism-spectrum disorder and met the standard necessary for granting a guardianship.Then, shortly after the doctor submitted his report, Yolanda, proceeding pro se , filed an objection to Milton's guardianship petition, contending that she had raised their son for 20 years, detailing some of the activities that he had participated in while living with her in North Carolina, and claiming that M.P. only lived in Georgia with his father during the summer.

Next, M.P.'s attorney submitted a report, in which he agreed with Milton that, due to M.P.'s autism, he cannot make or communicate significant responsible decisions for his own health and safety.The attorney further reported that he had met with M.P. outside of Milton's presence, and during the meeting, M.P. was “adamant that he wanted to remain with his father so that he could participate in outside activities.”According to the attorney, M.P. stated that, when he was living in North Carolina with his mother, he was “unable to participate in activities and spent most of his time at home alone.”Although M.P.'s statements conflicted with those of his mother, the attorney found him to be “very credible.”As a result, M.P.'s attorney concluded that it would be in M.P.'s best interests for his father to be appointed as his guardian.

Having then obtained counsel, Yolanda filed an amended objection to the guardianship petition, contending that the (Georgia) probate court lacked personal jurisdiction over M.P. because he was domiciled in North Carolina.Nevertheless, after holding a hearing on the matter, the probate court rejected those arguments and appointed Milton as M.P.'s guardian, noting that he was “suitable and available to serve.”This appeal by Yolanda follows.

At the outset, we note that in reviewing an order on a petition for guardianship, we will not set aside the probate court's findings “unless they are clearly erroneous[,][a]nd [when] such findings are supported by any evidence, they will be upheld on appeal.”³The probate court's application of the law, however, is subject to de novoreview.⁴With these guiding principles in mind, we turn now to Yolanda's specific claims of error.

1.Yolanda first argues that the probate court erred in finding that it had personal jurisdiction over M.P. for purposes of ruling on Milton's guardianship petition.⁵We disagree.

We first note that, in reviewing a lower court's ruling on the existence of personal jurisdiction, this Court resolves all disputed issues of fact “in favor of the party asserting the existence of personal jurisdiction, bearing in mind that it is the movants who bear the burden of proving that Georgia courts lack personal jurisdiction over them.”⁶And under OCGA § 29–4–1 (a), a court“may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.”Furthermore, guardianship petitions must be filed

in the court of the county in which the proposed ward is domiciled or is found, provided that the court of the county where the proposed ward is found shall not have jurisdiction to hear any guardianship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing a petition for the appointment of a guardian.⁷

As to determining a person's domicile, OCGA § 19–2–1 provides:

(a) The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state.If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile.

(b) The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence.Declaration of an intention to change one's domicile is ineffectual for that purpose until some act is done in execution of the intention.

As our Supreme Court has explained, “[t]here must be a concurrence of actual residence and the intention to remain[ ] to acquire a domicile.”If a person actually removes to another place , with the intention of remaining there for an indefinite time as a place of fixed domicile, such place becomes his domicile.”⁸Indeed, there must be “either the tacit or the explicit intention to change one's domicile before there is a change of legal residence.”⁹Nevertheless, a person who is “mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile.”¹⁰Lastly, we note that the question of domicile is “a mixed question of law and fact, and is ordinarily one for [the fact-finder], and should not be determined by the court as a matter of law except in plain and palpable cases.”¹¹

In the casesub judice , the undisputed evidence shows that M.P., who is no longer a minor, has an actual residence in Chatham County, Georgia, with his father, and he has explicitly expressed an intention to stay there.Specifically, according to Milton, M.P. refused to return to North Carolina in August 2015, after spending the summer in Savannah.Additionally, M.P.'s attorney reported that M.P. was “adamant” that he wanted to remain in Georgia with his father, and the attorney found M.P. to be credible.Under such circumstances, even if M.P. was previously domiciled in North Carolina, there was ample evidence to support the probate court's finding that M.P. had changed his domicile to Chatham County, Georgia, by the time of this proceeding because he had moved to Chatham County, where he had an actual residence, and he explicitly expressed his intention to remain there.¹²

Nevertheless, Yolanda argues that M.P. lacked the mental capacity to change his domicile from North Carolina to Georgia.And in support of this contention, she notes that the doctor's report found that M.P. was “naive[,] suggestible, and vulnerable to the influence of others,” and that she and her sister had trouble communicating with M.P. when he was in his father's care (and testified to this effect before the probate court).We find this argument unavailing.Although the probate court, in granting the guardianship petition, necessarily found that M.P. “lacks sufficient capacity to make or communicate significant responsible decisions concerning his ... health or safety,”¹³ there was evidence to support the court's conclusion that M.P. was not so mentally incapacitated that he was incapable of changing his domicile.In fact, during the hearing, Yolanda's counsel represented to the probate court that she“in no way contends that [M.P.] is incompetent in terms of what we usually think of as an incompetent person.”Instead, her position was just that M.P. “labors under a significant disability due to his autism.”

Additionally, in expressing his “adamant” desire to remain in Georgia to his attorney, M.P. was able to articulate some of the reasons underlying his decision.Specifically, M.P. indicated that he wanted to stay with his father so that he could participate in outside activities, explaining that, in North Carolina, he was unable to participate in such activities and spent most of his time at home alone.And when M.P.'s attorney was specifically asked by the probate court about M.P.'s mental ability to change his domicile, the attorney responded that M.P. “very clearly intended to move to Savannah, Georgia,”“he was very lucid ... that he wanted to be [t]here,” and his decision to move was voluntary.Indeed, based on his interview with M.P.,...