In re J.S.M.
| Decision Date | 13 April 2021 |
| Docket Number | DA 20-0402 |
| Citation | 2021 MT 86,484 P.3d 939 |
| Parties | In the MATTER OF the GUARDIANSHIP OF: J.S.M., A Minor Child, Diana R. Merideth and Kenneth M. Merideth, Petitioners, Appellees and Cross Appellants, In the Matter of the Guardianship of: J.S.M., A Minor Child, Carol Merideth, Petitioner and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Kevin S. Brown, Erin E. Harris, Paoli & Brown, P.C., Livingston, Montana
For Appellee: Sherine D. Blackford, Monica E. Payne, Blackford Carls P.C., Bozeman, Montana
¶1 Carol Merideth appeals the Sixth Judicial District Court's order awarding temporary guardianship of her two stepchildren to their paternal grandparents, Diana Merideth and Kenneth Merideth. Diana and Kenneth cross-appeal the court's failure to make the guardianship order a permanent one and its award to Carol, in the same order, of a right to visitation with the children at certain established times. We affirm.
¶2 J.S.M. is the ten-year-old son of Joshua Merideth and Allison Merideth. J.S.M. has a sister, six-year-old G.R.M.1 Josh and Allison separated in 2016; their divorce became final in 2019, at which time the court entered a parenting plan calling for the children to reside with Josh, with Allison to have restricted parenting time. At the time of hearing on this matter, Allison had not had any contact with the children for approximately two years; she now resides in Iowa with her other two children. Josh married Carol in March 2020. Two and a half months later, on June 6, 2020, he died of cancer
. From the time Josh and Allison separated, the children spent significant time with their grandmother Diana, who provided care and parenting responsibilities when Josh was working and undergoing cancer treatment.
¶3 Two days after Josh's death, Diana and Kenneth filed a petition for guardianship and requested an emergency order for temporary guardianship. The District Court entered an order two days later appointing Diana and Kenneth temporary guardians and setting a hearing the following week. That same day, Carol filed her own petition in a separate action seeking temporary guardianship and conservatorship. Carol attached to her petition the Last Will and Testament ("Will") that Josh executed approximately a week before he died, appointing Carol as the children's guardian and conservator. The District Court consolidated the two actions, continued the hearing, and entered an interim order directing that the children reside with Kenneth or Diana during the weekdays and with Carol on the weekends.2
¶4 The District Court held an evidentiary hearing on the petitions on July 8, 2020. Allison, Diana, and Carol all testified, and the parties each called additional witnesses in support of their respective petitions. Diana and Kenneth filed with the court Allison's written consent to their appointment as the children's guardians and conservators. Allison testified at the hearing to the circumstances of her disappearance from the children's lives and, consistent with her written consent, said that she wished to engage in reunification counseling with a licensed reunification counselor but to have the children under Kenneth and Diana's guardianship. Allison affirmed that her parental rights had never been terminated.
¶5 Diana testified to her extensive relationship with the children and to the parenting responsibilities she has assumed since Josh and Allison's separation. Diana testified that, if appointed guardian, she would be supportive of the children's relationship with Carol. Kenneth and Diana also called the children's therapist, Sara Gentry. Carol testified to her relationship with Josh and the children and to their plans for her to adopt the children. Carol called several additional witnesses, who testified to their familiarity with Josh and Carol's relationship and with the role she played in the children's lives.
¶6 At the conclusion of the hearing, the court took the matter under advisement. It ordered in the meantime that the children would continue to reside with Kenneth or Diana during the weekdays and with Carol on weekends, except that Kenneth would have the children every Sunday morning for two hours and Carol would have them every Wednesday evening for two hours. The court advised the parties that they did not need to submit proposed findings, reminding them that it was considering only the issue of a temporary guardianship, and indicated that it needed to consider the legal issues the parties had raised before entering its decision.
¶7 The District Court entered Findings of Fact, Conclusions of Law, and an Order Appointing Temporary Guardians and Conservators on July 27, 2020. It found that the children have a very close bond with Diana and Kenneth. It found also that the children have developed a bond with Carol, enjoy spending time with her, and have enjoyed getting to know Carol's boys, who are young adults. The court found that the "longstanding and trusted relationship that the grandparents have had with the children over a very long period of time weighs heavily in favor of the grandparents being granted temporary guardianship and conservatorship." It determined that it was in the children's best interests to appoint Diana and Kenneth as their temporary guardians and conservators.
¶8 In its conclusions of law, the court held that Carol's testamentary appointment was void because Allison is living and has not been adjudicated incapacitated. "As the children's living natural parent," the court stated,
¶9 The District Court found that the current schedule imposed under its Temporary Order—allowing the children to spend time with both of their grandparents and with Carol—is consistent with the best interests of the children. The order thus appointed Diana and Kenneth as Temporary Guardians and Conservators of the children with all the powers and duties as set forth in §§ 72-5-231 and 72-5-427, MCA. It directed Diana and Kenneth to ensure that the children continued to engage in counseling with their current therapist and to comply with her recommendations and plan for therapy. The order directed that Carol have the children on alternating weekends from 6:00 p.m. on Fridays through 6:00 p.m. on Sundays, with the exception that Kenneth have the children for a period of two hours on Sunday mornings and that Carol have them for two hours encompassing dinnertime each Wednesday. The order provided that the children will be entitled to attend family reunions with their grandparents, even if this conflicts with the weekend schedule. Finally, the court ordered Diana and Kenneth to comply with Allison's request for reunification counseling with the children, so long as Allison complies with all recommendations made by the reunification counselor and the children's counselor and complies with all court orders.
¶10 A district court's order granting a temporary guardianship is immediately appealable. M. R. App. P. 6(4)(a) ; In re Guardianship & Conservatorship of A.M.M. , 2015 MT 250, ¶ 22, 380 Mont. 451, 356 P.3d 474 (citing In re Klos , 284 Mont. 197, 201, 943 P.2d 1277, 1279 (1997) ). "Subject to statutory restrictions, the selection of the person to be appointed guardian [or conservator] is committed largely to the discretion of the trial court." In re A.M.M. , ¶ 16. This Court will interfere with such an appointment only "in the case of a clear abuse of discretion." In re A.M.M. , ¶ 16 (citing In re Guardianship of Nelson , 204 Mont. 90, 94, 663 P.2d 316, 318 (1983) ). We review a district court's conclusions of law related to the appointment of a guardian to determine if they are correct. Fischer v. Fischer , 2007 MT 101, ¶ 8, 337 Mont. 122, 157 P.3d 682 (citing In re Guardianship of D.T.N. , 275 Mont. 480, 483, 914 P.2d 579, 580 (1996) ).
¶11 1. Was Carol entitled to a statutory priority for appointment as temporary guardian by virtue of Josh's testamentary appointment?
¶12 Montana's Uniform Probate Code, Title 72, chapter 5, part 2, MCA, governs the appointment of a guardian for a minor child whose parent has died. A person becomes the minor's guardian "by acceptance of a testamentary appointment or upon appointment by the court." Section 72-5-201(1), MCA.
¶13 Josh executed his Will on May 29, 2020. Josh's Will appointed his wife Carol as the testamentary guardian for his minor children and stated that he did not wish for the children to be placed in the custody of their biological mother or with any members of Josh's family. Carol argues that she accepted Josh's testamentary appointment, and it entitles her to statutory priority to be appointed as the children's guardian and conservator. Diana and Kenneth respond that, because the children's natural mother is living and her rights have not been terminated, the testamentary appointment has no effect, and the District Court properly appointed a guardian after considering the children's best interests.
¶14 Section 72-5-211, MCA, provides in pertinent part that "a testamentary appointment becomes effective upon filing the guardian's acceptance in the court in which the will is probated if before acceptance both parents are dead or the surviving parent is adjudged incapacitated."3 Because Allison is living and has not been adjudicated to be incapacitated, the District Court turned to § 72-5-222(1), MCA. That section allows the court to appoint a guardian for a minor child "if all parental rights of custody have been terminated or if parental rights have been suspended or limited by circumstances or prior court order." The District Court concluded, based upon clear and convincing evidence, that Allison's parental...
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