In the Matter of Mabel a O
| Decision Date | 09 May 2000 |
| Docket Number | 99-0384 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IIIIn the Matter of the Conservatorship & Guardianship of Mabel A.O.: Barney O. II, Appellant, v. Conservatorship of Mabel A.O., Mary Scrivner, conservator, and Karen Roloff, Respondents.In the Matter of the Conservatorship & Guardianship of Mabel A.O.:Mabel A.O.,Appellant, v. Conservatorship of Mabel A.O., Mary Scrivner, conservator, and Karen Roloff, Respondents.In the Matter of the Conservatorship & Guardianship of Mabel O.A.: Martha J. Crunk,Appellant, v. Conservatorship of Mabel A.O., Mary Scrivner, conservator, and Karen Roloff, Respondents |
| Court | Wisconsin Court of Appeals |
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III
No. 99-0384 In the Matter of the Conservatorship & Guardianship of Mabel A.O.:
Barney O. II, Appellant,
v.
Conservatorship of Mabel A.O., Mary Scrivner, conservator, and Karen Roloff,
Respondents.
No. 99-0490 In the Matter of the Conservatorship & Guardianship of Mabel A.O.:Mabel A.O.,Appellant,
v.
Conservatorship of Mabel A.O., Mary Scrivner, conservator, and Karen Roloff,
Respondents.
No. 99-0610 In the Matter of the Conservatorship & Guardianship of Mabel O.A.:
Martha J. Crunk,Appellant,
v.
May 9, 2000
APPEALS from a judgment and orders of the circuit court for Vilas County: JAMES B. MOHR, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
1. PER CURIAM.
This case arises from conservatorship and guardianship proceedings of Mabel A.O. In 1995, Martha Crunk filed a petition for guardianship of her mother, Mabel, that was later converted to a conservatorship.
2. Mabel appeals a judgment and orders approving the final account and requiring the conservatorship to pay attorney fees. Mabel argues that (a) her temporary guardian is not entitled to an award of attorney fees because her appointment did not comply with statutory procedure; (b) if the appointment did comply with statutory procedure, the statute is unconstitutional; (c) her conservator is not entitled to attorney fees due to the attorney's conflict of interest; and (d) the judgment fails to credit Mabel with $3,202.58 paid by the conservator.
3. Martha appeals the judgment and orders assessing remedial sanctions of $20,425 against Martha and $10,256.46 jointly and severally against Martha and her brother Barney O. Martha argues that (a) the trial court improperly found Martha and Barney in contempt and (b) none of the attorney fees incurred by the temporary guardian or the conservator should have been paid by Mabel's estate.
4. Barney O., Mabel's son, also appeals the judgment and orders assessing remedial sanctions for contempt. He joins in Martha's brief and makes essentially the same arguments that she does. We reject their arguments and affirm the judgment and orders.1
5. Mabel, born in 1919, suffers from Alzheimer's Dementia. She has four children, Barney O., David O., Martha Crunk and Karen Roloff. David is not involved in these proceedings. In 1995, Martha filed a petition in Vilas County alleging that her mother was in need of a guardian because she was incompetent. Mabel objected and hired attorney John Danner to contest the petition.
6. The parties reached a compromise and Martha withdrew her petition. Pursuant to their compromise, the court proceeded on Mabel's counterclaim and ordered a conservatorship. Because the compromise called for a neutral third party to marshal Mabel's assets and assist her as needed, the court appointed Mary Scrivner, an accountant, as conservator. The trial court found that Mabel stated that it was her desire to treat her children equally.
7. The trial court determined Barney and Martha thwarted Mabel's intentions. Barney had transferred Mabel's home without authority to do so, requiring the court to void the conveyance. In 1996, while the petition for guardianship was pending, Barney sold securities belonging to Mabel using a power of attorney that had been revoked eighteen months earlier, and then refused to turn over the remaining stock certificates.
8. The trial court found Barney in contempt for failing to comply with the court's order to turn over Mabel's remaining stock certificates. The court found that in order to obtain Mabel's securities from Barney, the conservatorship had to retain counsel in Illinois, resulting in $4,638.25 attorney fees and $1,307.16 stock reissue expense. The court stated: "[Barney] is responsible for those fees, that they were expended solely because [Barney] refused to follow the directions of the court, and then after expending the money, [he] voluntarily turned over the stock certificates that caused these fees."
9. In addition, the trial court found that Martha would not cooperate with the conservator; that Martha claimed the house belonged to the children, not Mabel, and that Martha refused to memorialize a loan that she had obtained from Mabel. Because Martha refused to obey the court's orders to memorialize the loan, and to cooperate with turning Mabel's property over to the conservator, the court found Martha in contempt of court. The court found that Martha was responsible to repay $20,425, reflecting the loan balance.
10. Mabel's daughter, Karen, had been given health care power of attorney. In May 1997, due to Mabel's deteriorating mental health, Karen placed her mother in an assisted living environment close to Karen's Illinois home. In December, Karen recommenced the Vilas County guardianship proceedings, and the court appointed a guardian ad litem for Mabel. A doctor at the facility where Mabel was living indicated to the court that the children were causing major problems and making it impossible for Mabel to adjust. The court appointed Karen temporary guardian. It also entered a restraining order against Martha for harassment.
11. Shortly after Karen was appointed temporary guardian, Barney had his associate, Monica Sadler, C.A., remove Mabel from the assisted living facility through an emergency exit and take her to Barney's Illinois residence to live. This was done without approval of the staff or the guardian. Barney refused to cooperate with the pending Vilas County guardianship proceedings and filed for guardianship in Illinois. The Illinois court dismissed the guardianship petition. Karen's appointment as temporary guardian in Wisconsin subsequently expired by operation of law. See Wis. Stat. 880.15(1).2
12. Sadler brought another guardianship proceeding in Illinois that was eventually approved. As a result, the Wisconsin proceedings were dismissed, but the trial court was required to approve the final account and close out the existing conservatorship, order payment of outstanding estate obligations and transfer the remaining assets to the Illinois guardian.
13. The court found that in her role as temporary guardian, Karen legitimately incurred attorney fees on behalf of Mabel defending the Illinois guardianship proceeding. As a result, the court ordered that Karen was entitled to reimbursement from Mabel's estate. Also, under Wis. Stat. 785.01(1), as remedial sanctions for contempt, the court required Barney to reimburse the estate for Karen's attorney fees. It further required Barney and Martha to reimburse the estate for expenses incurred in attempting to obtain Mabel's assets. Additionally, the court entered judgment against Martha for her default on the loan. The court approved the final account of the conservatorship subject to payment of all its expenses and approved sale of securities to pay outstanding debts of the estate. Mabel, Martha and Barney appeal the judgment and orders.
I.Mabel's appeal3
A.Karen's attorney fees
1.Objections to statutory procedure
14. Mabel argues that because Karen was unlawfully appointed, she is not entitled to recover her expenses incurred as Mabel's temporary guardian. Mabel alleges a number of statutory violations. She contends that the order appointing Karen was obtained ex parte and that the petition for temporary guardianship was not served until two days after the order was entered. In addition, she complains that the letters of guardianship and an order for the competency exam were also issued ex parte on the same day the petition was filed.
15. We reject Mabel's arguments because they fail to recognize the distinctions between the procedure for appointing a temporary guardian under Wis. Stat. 880.15 and the procedure for appointing a "permanent" guardian under Wis. Stat. 880.12.4 Mabel's arguments present questions of statutory construction, an issue of law we review without deference to the trial court. See In re Estate of Warner, 161 Wis.2d 644, 651, 468 N.W.2d 736 (Ct. App. 1991). We construe a statute according to the ordinary and accepted meaning of its language. See id.
16. The record establishes that the appropriate statutory procedure was followed. To appoint a temporary guardian, Wis. Stat. 880.15(1) provides: "If, after the consideration of a petition for temporary guardianship, the court finds that the welfare of ... an alleged incompetent requires the immediate appointment of a guardian of the person or of the estate, or of both, it may appoint a temporary guardian for a period not to exceed 60 days unless further extended for 60 days by order of the court." The court may extend the appointment just once. See id. The petitioner shall provide notice of the petition to the alleged incompetent "before or at the time the petition is filed or as soon thereafter as possible" and include notice of the right to counsel and the right for reconsideration or modification of the temporary guardianship. Wis. Stat. 880.15(1s).
17. Accordingly, Mabel's contention that the statutory procedure "forbids an ex parte temporary guardianship order entered without advance notice to the defendant" is wrong. The plain language of Wis. Stat. 880.15 provides for an immediate appointment of a temporary guardian when the alleged incompetent's welfare requires one. The record establishes that a guardian ad litem was appointed for Mabel the same day that the petition and letters of temporary guardianship were filed. Copies of the petition, letters and various orders were served on Mabel within forty-eight hours of...
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