In re Estate of Kevin Lee Hanson

• Decision Date: 14 September 2020
• Docket Number: A20A1109
• Citation: In re Estate of Kevin Lee Hanson, 357 Ga.App. 199, 848 S.E.2d 204 (Ga. App. 2020)
• Court: Georgia Court of Appeals
• Parties: IN RE ESTATE OF KEVIN LEE HANSON.

357 Ga.App. 199

848 S.E.2d 204

IN RE ESTATE OF KEVIN LEE HANSON.

A20A1109

Court of Appeals of Georgia.

September 14, 2020

Reconsideration Denied October 20, 2020

Certiorari Denied June 1, 2021

Chan Law Firm, Ophelia W. Chan, Stephanie B. Carman, for appellant.

Levenson & Associates, Louis Levenson, Lori J. Christman, George L. Lott, for appellee.

Rickman, Judge.

In the second appearance of this case before this Court, Kimberly Babbitt again appeals a Georgia probate court's determination that it had jurisdiction to enter orders for a nontemporary guardianship and a conservatorship over non-Georgia property of Kevin Hanson, a Florida resident, her life partner and the father of her three children, who received a traumatic brain injury when a bridge collapsed in Miami. See In re Estate of Hanson , 353 Ga. App. 61, 834 S.E.2d 615 (2019). In a case of first impression under the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act (the "UAGCPJA"), see OCGA § 29-11-1 et seq., we hold that the probate court plainly erred in concluding that it had such jurisdiction. We therefore reverse and remand with direction.

"[W]hether a trial court lacked subject-matter jurisdiction is an issue of law that we review de novo for plain legal error." (Citation and punctuation omitted.) Delgado v. Combs , 314 Ga. App. 419, 425-426 (1), 724 S.E.2d 436 (2012).

It is undisputed that at the time then 38-year-old Kevin was injured, he and Babbitt lived together, unmarried, in Hillsborough County, Florida with Kevin's four children;¹ Kevin's parents — the Hansons — also resided in Florida.

With that background, the basic facts, as set forth in the earlier appeal and as supplemented herein, show the following:

Kevin ... was catastrophically injured in Miami on March 15, 2018. Kevin was treated first in Florida and was then transported to Atlanta for treatment at the Shepherd Center [on April 3, 2018]. On June 26, 2018, while Kevin remained in Georgia, [Kevin's] parents filed a petition in the Probate Court of Fulton County seeking to be appointed as Kevin's emergency co-guardians and co-conservators. The trial court granted the petition on June 29, 2018, to last "for 60 days, or until the effective date of the appointment of a permanent guardian/conservator."

Hanson , 353 Ga. App. at 61, 834 S.E.2d 615. The Hansons did not notify Babbitt or the minor children of the emergency petition.

On July 3, 2018, the Hansons filed a petition seeking to be appointed permanent co-guardians for Kevin and co-conservators of his property (hereinafter sometimes referred to as the "petition for permanent orders"). One week later, Babbitt and the children moved to intervene in the probate court proceedings, seeking to set aside the court's emergency order and to dismiss the emergency petition. The probate court denied the motion. Prior to the expiration of the first emergency appointment, the Hansons filed a second emergency petition.

Babbitt and the children moved to dismiss the petition for permanent orders arguing, in part, that under the UAGCPJA,² jurisdiction belonged in Florida. The probate court denied the motion. Babbitt also filed her own petition for appointment of an emergency guardian and/or emergency conservator, and Babbitt and the children filed a caveat to the second emergency petition, asserting improper jurisdiction based in part on the ground that a petition for guardianship and conservatorship was pending in Hillsborough County, Florida. Following a hearing, the probate court dismissed Babbitt's caveat for lack of standing, dismissed her emergency petition, and granted the Hansons’ second emergency motion.

On October 3, 2018, Kevin was transported back to Florida for additional medical treatment in Sarasota. Nine days later, the probate court held a hearing on the petition for permanent orders. On October 15, 2018, the trial court entered an order naming the Hansons as the permanent co-guardians of Kevin and co-conservators of his property, including property located in Florida; Babbitt appealed and argued, among other things, that the trial court lacked jurisdiction. On the initial appeal, this Court held that the probate court failed to consider the factors necessary to establish that it had jurisdiction under the UAGCPJA; we therefore vacated the court's decision and remanded the case for additional findings. Hanson , 353 Ga. App. at 62 (1), 834 S.E.2d 615.

On remand, the probate court again found that it had jurisdiction and issued a new order again naming the Hansons as the permanent co-guardians of Kevin and co-conservators of his property, including property located in Florida.³ Babbitt again appeals, asserting, among other things, that the court erred in concluding that it had jurisdiction and in denying the motion to intervene.⁴

1. We first hereby deny the Hansons’ motion to dismiss Babbitt's appeal for lack of standing to appeal. At a minimum, denial of a motion to intervene is appealable. See In the Interest of J. M. T. , 275 Ga. App. 526, 527, 621 S.E.2d 535 (2005) (denial of intervention is appealable); Kipp v. Rawson , 193 Ga. App. 532, 535 (4) (a), 388 S.E.2d 409 (1989) (denial of intervention in a guardianship proceeding is appealable). Babbitt also filed her own petition for a guardianship,⁵ which made her a party to the proceedings from which she had a right to appeal a final judgment. See OCGA § 29-4-70 (a) (petitioner for guardianship has a right to appeal); see also Kipp , 193 Ga. App. at 535 (4) (a), 388 S.E.2d 409 (denial of intervention reviewable as part of the timely review of a subsequent final judgment); compare Twitty v. Akers , 218 Ga. App. 467, 468 (1), 462 S.E.2d 418 (1995) (individuals who did not petition for guardianship had no standing to appeal probate court's decision). Finally, this Court considered Babbitt's earlier appeal over the Hansons’ objection to her standing.

2. Babbitt asserts that the probate court erred by finding that it had jurisdiction under the UAGCPJA. We agree.

The UAGCPJA is "a slightly revised version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act" (the "Uniform Act"). Radford, Ga. Guardianship and Conservatorship § 1:30 (2019). Under the well-established rules of statutory construction,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) Johnson v. State , 308 Ga. 141, 144, 839 S.E.2d 521 (2020).

(a) Babbitt first challenges the probate court's reliance on OCGA §§ 29-4-10 (a) and 29-5-10 (a),⁶ statutes not found in the UAGCPJA. We agree that the UAGCPJA alone governs the probate court's jurisdiction.

In enacting the UAGCPJA, the legislature made clear that Article 2 of that Act "provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a conservatorship order for an adult." OCGA § 29-11-11. This language is clear and susceptible to only one meaning. Furthermore, OCGA §§ 29-4-10 (a) and 29-5-10 (a) pertain to the question of venue, not jurisdiction. See generally Hoesch America, Inc. v. Dai Yang Metal Co. , 217 Ga. App. 845, 847 (1), 459 S.E.2d 187 (1995) ("Jurisdiction and venue are very different matters; one concerns the right and power of a court to adjudicate a matter, while the other simply involves the place of the suit."); Sorrells v. Sorrells , 247 Ga. 9, 11 (2), 274 S.E.2d 314 (1981) (considering whether allowing petitions for guardianship of adult state residents to be filed in a county where the ward was "found," as opposed to the ward's domicile, ran afoul of the venue provisions of the 1973 state constitution); Smith v. Young , 187 Ga. App. 191, 192 (1), 369 S.E.2d 798 (1988). We therefore hold that to the extent the probate court concluded that it had jurisdiction because Kevin was "found" in Georgia, it plainly erred.

(b) Babbitt contends the probate court erred in concluding that it had jurisdiction of the Hansons’ petition for permanent orders under the UAGCPJA. We agree.

Article 2 of the UAGCPJA creates a three-tiered approach to jurisdictional issues between states, and under that approach, "the state court that may have jurisdiction would be, in order of priority: 1) the court in the respondent's home state; 2) the court of a state with which the respondent has a significant connection; or 3) a third state that is neither the home state nor a significant-connection state." Radford, Ga. Guardianship and Conservatorship § 4:3 (2019). These tiers are established in four paragraphs of OCGA § 29-11-12, which specify several circumstances under which "[a] court of this state has jurisdiction to appoint a guardian or issue a conservatorship order for a respondent."⁷ OCGA § 29-11-12. Paragraph (1) of OCGA § 29-11-12 is clearly inapplicable because it grants jurisdiction to a court in the respondent's home state, and it is undisputed that Kevin's home state was Florida. The trial court did not rely on Paragraph (3).

Rather, on remand following Babbitt's earlier appeal, the probate court held that it had jurisdiction because Georgia was a significant-connection state for Kevin as provided in subparagraphs (2) (A) and (2) (B). As explained below, pretermitting whether Georgia could be deemed a significant-connection state under these subparagraphs, the record does not show that the other express requirements of ...