In re Guardianship of Williams, 2004-CA-01886-COA.
| Decision Date | 30 May 2006 |
| Docket Number | No. 2004-CA-01887-COA.,No. 2004-CA-01888-COA.,No. 2004-CA-01886-COA.,2004-CA-01886-COA.,2004-CA-01887-COA.,2004-CA-01888-COA. |
| Citation | 930 So.2d 491 |
| Parties | In re The GUARDIANSHIP OF Dae'Tavious Levar WILLIAMS. Dave Anderson, Appellant, v. Laura Hoover, Appellee. In re The Guardianship of Kiyanna Teleshia Anderson. Dave Anderson, Appellant, v. Laura Hoover, Appellee. In re The Guardianship of Claira Shameka Williams. Dave Anderson, Appellant, v. Laura Hoover, Appellee. |
| Court | Mississippi Court of Appeals |
Bryant Wandrick Clark, Robert George Clark, attorneys for appellants.
Dennis C. Sweet, Jackson, attorney for appellees.
Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
SOUTHWICK, J., for the Court.
¶ 1. The unmarried mother of three minor children died soon after the birth of her last child. The mother's sister was appointed guardian of the person and the estate of all the children even though they had always lived with their father. The deceased's sister and mother arranged for a malpractice suit to be brought on the children's behalf against various medical providers. After the suit was settled, the children's father sought to be named as their sole guardian. Instead, he was appointed as co-guardian and the guardianship by the children's aunt continued. The father appeals, arguing that there is no reason to continue the aunt as a co-guardian. We agree, reverse, and remand.
FACTS
¶ 2. A guardianship for each of the three children was filed as a separate action. Three separate final judgments were entered. The appeals from the separate judgments have been consolidated.
¶ 3. In December 1998, Lakesha Monea Williams died at age twenty due to complications from the birth of her third child. The children's father, Dave Anderson, has maintained custody of all the children. Anderson and Williams were not married, but there is evidence that the parents had lived together with the children since the birth of the oldest child, who was seven when her mother died. Physical custody of the children is not at issue here.
¶ 4. After Williams's death, her sister and her mother hired an attorney to pursue a wrongful death and medical malpractice claim against the hospital and physicians who treated Williams. The mother of the deceased, Velma Williams, brought the suit as next friend of the children. From the testimony at the guardianship settlement hearing, we accept that Ms. Williams and the children's aunt, Laura Hoover, were far more assertive than the father in arranging for the litigation and pursuing it to completion. Anderson made some contacts with the children's attorney after the litigation commenced and testified that he was told that he need not and in fact could not bring a separate suit on the children's behalf.
¶ 5. Apparently after a tentative settlement, Laura Hoover filed three separate petitions to be appointed general guardian of the three children on November 18, 2002, in Holmes County Chancery Court. After a hearing, Hoover was appointed general guardian of the children on December 19, 2002. She was authorized to bring a wrongful death suit on behalf of the three wards. In each of the petitions, Hoover stated that notice should be given to David Anderson of her desire to be appointed guardian for the children. Anderson would later allege, though, that notice was not given.
¶ 6. The settlement was approved by the chancellor for $1,230,000. After attorneys' fees and expenses, plus a reimbursement to the court-appointed guardian for Lakesha Williams' funeral costs, there was about $665,000 to be divided among the three children. According to statements in the record, those funds are subject to the oversight of the chancellor and cannot be expended by whoever is guardian without court order.
¶ 7. About eight months after Hoover was named as guardian, Anderson filed motions to remove her and to have himself become the sole guardian of the person and estate of his children. The chancellor denied the motion to remove Hoover but appointed Anderson and Hoover as "co-guardians" of the estates on September 19, 2003.
¶ 8. Anderson appeals, alleging that he should be named as sole guardian in the absence of any basis on which to find that he is unsuitable. He also alleges that the initial appointment of Hoover was defective because he had not received notice of the action.
DISCUSSION
¶ 9. The only allegation of error that we find necessary to address is whether the chancellor should have removed the children's aunt as guardian and allowed their father to be the only guardian.
¶ 10. Anderson argues there is no meaningful evidence to support that he is unsuitable to serve. Hoover alleges that Anderson is unsuitable because of his lack of diligence when his children's possible entitlement to wrongful death benefits arose after the death of their mother. The reason the aunt was continued co-guardian was explained this way in one of the chancellor's orders:
At trial, Dave Anderson testified that he inquired of a lawyer as to whether he could recover for the wrongful death of Lakesha Williams. The lawyer informed him that he could not recover for the wrongful death of Lakesha because they were never married.
Dave Anderson took no action to obtain counsel to represent the children in a wrongful death action of their mother.
Laura Hoover, the maternal aunt, obtained a lawyer and initiated a wrongful death action on behalf of the minor children.
Laura Hoover worked tirelessly to bring the lawsuit to a conclusion. She traveled from the lawyers office; she was deposed; attended the depositions [of] other parties, and did whatever the lawyer required of her.
Dave Anderson was deposed during the litigation of this matter, but he still did not take an active role in the litigation on behalf of his minor children.
Laura Hoover paid $7,500 [of her own money] to bury Lakesha Williams, and she made all of the funeral arrangements.
Although Lakesha Williams and Dave Anderson live[d] together for several years, Dave Anderson did not offer to pay any of the funeral expenses.
Dave Anderson was inconsistent in his testimony, particularly when questioned as whether he was financially providing for his children. Other testimony revealed that Mr. Anderson was receiving aid for dependent children.
¶ 11. The final point in this excerpt from the chancellor's order concerns testimony from Anderson that he was providing financial assistance to the children. The assistance for the minor children was actually through a federal benefits program entitled Temporary Assistance to Needy Families. The chancellor interpreted Anderson's testimony as claiming for himself a personal financial contribution to the children that was untrue.
¶ 12. The children's aunt, Hoover, testified that it was necessary for her to seek appointment as guardian of the children when she realized that Anderson was not going to file suit on their behalf. Anderson gave confusing and perhaps inconsistent testimony as to why he did not pursue the claim. He testified that he contacted an attorney three or four months after Williams's death, but gave what appeared to be two versions of what the attorney told him. Anderson first testified that the attorney told him that since he had not been married to Williams, a recovery for wrongful death was impossible. Later in his testimony, Anderson says that the attorney told him that because a suit was already pending in the matter, that he could not file a suit.
¶ 13. The lawyer to whom Anderson referred was his counsel in a separate chancery matter in which Velma Williams sought grandparent visitation rights. Anderson testified to having participated in the visitation hearing with counsel and was aware of what transpired as a result of that hearing. Anderson also testified that he had only recently been made aware of the settlement and the guardianship. He specifically denied receiving notice of the guardianship when Hoover sought appointment. Anderson testified that he never gave Hoover consent to seek the guardianship, though he did give her consent to pursue a claim on behalf of the children. A transcript of the hearing on acceptance of the settlement offer reveals Anderson's testimony that since Hoover was more knowledgeable about the case, she could function as guardian for purposes of that hearing.
¶ 14. The primary reason that the chancellor made Anderson share the guardianship responsibilities with Hoover is that Hoover pursued the wrongful death suit. Different ways in which his lack of zeal with the litigation reflected itself were stated in the chancellor's findings. He also failed to pay for the expenses for Lakesha Williams's funeral; Hoover paid them. Finally, Anderson was found not to have been candid about his support for the children, testifying that he was financially supporting them when instead it was a governmental benefits program providing support. We categorize these perceived shortcomings as a lack of initiative and specifically a failure to assume responsibility.
¶ 15. Mississippi guardianships are controlled by statute. We find it useful to quote in part the one that is the most significant for our purposes:
The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates.... If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.... But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the...
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