Kuelbs v. Hill

• Court: Arkansas Court of Appeals
• Writing for the Court: WAYMOND M. BROWN
• Citation: Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47 (Ark. App. 2010)
• Decision Date: 12 May 2010
• Docket Number: No. CA 09–231.,CA 09–231.
• Parties: Kristin KUELBS, Donald Hill, and Edwardena Hill, Appellants v. Kimberly HILL, Appellee.

2010 Ark. App. 427

379 S.W.3d 47

Kristin KUELBS, Donald Hill, and Edwardena Hill, Appellants

v.Kimberly HILL, Appellee.

No. CA 09–231.

Court of Appeals of Arkansas.

May 12, 2010.

Justin Bryum Hurst, Donald C. Hill, Hot Springs, for appellants.

Tylar Charles Marshall Tapp III, Hot Springs, for appellee.

WAYMOND M. BROWN, Judge.

[Ark. App. 1]Appellant Donald Hill and appellee Kimberly Hill filed competing petitions for guardianship or conservatorship of their adult sister, Kristin Kuelbs.¹ The circuit judge appointed an attorney ad litem for Kristin and ordered Dr. Paul Deyoub to evaluate Kristin's psychological condition. Dr. Deyoub determined that Kristin was incapacitated due to mental illness and needed a guardian of her person and her estate, neither of whom should be a family member. In accordance with the doctor's recommendation, the court named social worker Valerie Swearingen as the guardian of Kristin's person and First National Bank of Hot Springs as the guardian of Kristin's estate. Donald, who is a licensed attorney, appeals from that order [Ark. App. 2]on behalf of himself and Kristin, asserting that the circuit court erred by 1) appointing an attorney ad litem for Kristin; 2) failing to dismiss Kimberly's guardianship petition; 3) failing to strike Dr. Deyoub's testimony; 4) granting Kimberly's motion for a protective order; 5) appointing First National Bank as the guardian of Kristin's estate; and 6) failing to recuse. Donald also appeals from an order directing him to pay $625 of the attorney ad litem's fees. For the reasons set forth below, we dismiss Donald's appeal from the attorney-fee order and affirm the remainder of the circuit court's rulings.

I. Background facts

In 2001, Kristin Kuelbs suffered head injuries in an automobile accident. In 2006, her sister Kimberly and two other siblings, Jeff and Carol, asked a Wisconsin court to order an examination of Kristin, claiming that she had poured hot coffee over one sister's head and that she had talked about shooting her sisters and her mother and killing herself. A Wisconsin facility conducted a three-month evaluation and determined in February 2007 that Kristin could function in a less-restrictive environment. Based on representations by Kristin's brother Donald that he would allow Kristin to live with him in Arkansas and would assist with her medical needs, the Wisconsin court dismissed the matter. Kristin then moved to Garland County, Arkansas, to live with Donald and gave Donald her power of attorney.

On November 20, 2007, Kimberly, a Minnesota resident, filed a petition in Garland County Circuit Court asking to be appointed as Kristin's guardian. Kimberly alleged that Kristin suffered from craniocerebral trauma as the result of her accident; that she was paranoid, [Ark. App. 3]combative, and out of control; that she lacked the capacity to care for herself; and that the guardianship petition was supported by all of Kristin's siblings “with the exception of one whom [it] is believed absconded with many of [Kristin's] funds.” Kristin responded through her attorney, Justin Hurst, asking that the petition be denied. Her response also contained a “counter-petition for appointment of a conservator” filed by Hurst on behalf of Donald. The counter-petition alleged that Kristin was physically incapacitated due to her accident; that Kristin consented to Donald's appointment as conservator; and that the other siblings had attempted to “swindle” Kristin's assets. Attached to the pleading was Kristin's affidavit accusing her family members of taking over $200,000 of her money and consenting to Donald's appointment as conservator. The court eventually disqualified Hurst from representing Kristin and appointed Michelle Strause as Kristin's attorney ad litem.

Thereafter, Kristin and Donald, acting through their separate attorneys, filed motions to dismiss Kimberly's guardianship petition. Kristin asserted that she wanted to live with Donald and that she was not mentally incapacitated. Donald claimed that the Wisconsin court had actually appointedhim as Kristin's guardian (a claim that would later prove false) and that Kimberly's petition contained certain procedural flaws. Following a hearing, the court, without expressly ruling on the motions to dismiss, ordered Kristin to undergo a psychological evaluation performed by Dr. Paul Deyoub. Near this same time, Donald, who had obtained his law license, entered an appearance as Kristin's attorney. The court accepted his appearance but retained Michelle Strause as Kristin's attorney ad litem.

[Ark. App. 4]Dr. Deyoub conducted a brief evaluation of Kristin, in which he diagnosed her with “Bipolar Disorder, Manic, Severe with Psychotic Features” and concluded that she was incapacitated due to mental illness. The doctor also stated that Kristin needed a guardian of her person and her estate; that the guardian should not be a family member; and that the guardianship should be “limited and defined so that she retains independence in all areas except her estate and her mental health treatment.” Dr. Deyoub testified to his findings at an August 28, 2008 hearing.

On October 8, 2008, the circuit court, relying on Dr. Deyoub's evaluation, appointed social worker Valerie Swearingen as the guardian of Kristin's person for the limited purpose of making medical decisions and appointed First National Bank of Hot Springs as the guardian of Kristin's estate. On October 17, 2008, Donald filed a notice of appeal on Kristin's behalf and on his own behalf, challenging the court's guardianship ruling and several intermediate rulings. We turn now to appellants' arguments for reversal.

II. Appointment of attorney ad litem

Appellants argue that the circuit court erred in appointing an attorney ad litem for Kristin when she had already employed counsel of her own choosing. We review the circuit court's decision to appoint an attorney ad litem for an abuse of discretion.²

Appellants contend first that the appointment of an attorney ad litem violated Kristin's constitutional right to counsel of her own choosing. The right to counsel of choice is [Ark. App. 5]grounded in the Sixth Amendment to the United States Constitution and in article 2, section 10 of the Arkansas Constitution.³ Both constitutional provisions apply by their terms to “all criminal prosecutions.” Consequently, there is some doubt as to their applicability in a civil case.⁴ But even where they do apply, we have recognized that the right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice.⁵

Here, the effective administration of justice may well have warranted a restriction on Kristin's right to choose her own counsel. As the proposed ward, Kristin initially elected Justin Hurst as her counsel. Her choice was not problematic in and of itself, but it became so when Hurst was engaged to represent Donald, who opposed Kristin's need for a guardian, who himself wanted to become her conservator, and who was accused of misappropriating her assets. Given the circumstances in this hotly contested case, the court wisely chose to provide Kristin with her own attorney,who was wholly independent of those competing for her care and custody and who could give Kristin undivided loyalty in this adversarial proceeding. The record reflects that, in fact, the attorney ad litem staunchly represented Kristin by moving to dismiss the guardianship petition and by opposing the need for an additional psychological evaluation. We also note that the court later allowed Donald to [Ark. App. 6]represent Kristin during a significant portion of the case. Accordingly, her right to choose her own counsel was curtailed only slightly.

Next, appellants argue that the court's appointment of the attorney ad litem violated Canon 3(C)(4) of the Arkansas Code of Judicial Conduct, which provides that a judge “shall not make unnecessary appointments.” We disagree that a violation occurred. Given the circumstances described in the preceding paragraph, we find it hard to fault the court for deciding that an attorney ad litem was necessary to protect Kristin's rights. Furthermore, Canon 3(C)(4), when read in its entirety, is directed at assuring that judges make appointments based on merit rather than on nepotism or favoritism.

Appellants contend further that the attorney ad litem's appointment violated Ark. R. Civ. P. 17(b), which provides that

[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent.

(Emphasis added.) Appellants claim that Kristin was “otherwise represented” by legal counsel when the court appointed the attorney ad litem. However, Rule 17(b) involves the appointment of a guardian ad litem as a party rather than an attorney ad litem as legal counsel. The two roles are distinct. ⁶ Thus, no violation of Rule 17(b) occurred.

For these reasons, we conclude that the court did not abuse its discretion by appointing an attorney ad litem.

[Ark. App. 7]III. Motions to dismiss guardianship petition

Appellants argue that the circuit court should have dismissed Kimberly's guardianship petition because the petition offered no proof of Kristin's incompetency and failed to state that Kimberly, a nonresident of the state, had named a resident agent for service of process. Our standard of review is whether the circuit court abused its discretion in denying the motion to dismiss.⁷ We find no abuse of discretion on this point.

We note at the outset that the order appealed from in this case did not grant Kimberly's motion to be appointed guardian. Appellants' arguments are therefore academic for purposes of this appeal.⁸ In any event, appellants' arguments are not persuasive. Arkansas law does not require a...