Matter of the Guardianship of Cade E. R., No. 03-0859 (Wis. App. 1/21/2004)

• Decision Date: 21 January 2004
• Docket Number: No. 03-0859.,No. 03-0860.,03-0859.,03-0860.
• Parties: In the Matter of the Guardianship of Cade E. R.: Michael H. and Jackie H., Appellants, v. Jeffrey G. N. and Paula M. N., Respondents. In the Matter of the Guardianship of Madeline R.: Michael H. and Jackie H., Appellants, v. Jeffrey G. N. and Paula M. N., Respondents.
• Court: Wisconsin Court of Appeals

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In the Matter of the Guardianship of Cade E. R.:

Michael H. and Jackie H., Appellants, v. Jeffrey G. N. and Paula M. N., Respondents.

In the Matter of the Guardianship of Madeline R.:

Michael H. and Jackie H., Appellants, v. Jeffrey G. N. and Paula M. N., Respondents.

Court of Appeals of Wisconsin.

No. 03-0859.

No. 03-0860.

Dated and Filed: January 21, 2004.

APPEALS from orders of the circuit court for Outagamie County: MICHAEL GAGE, Judge. Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. PER CURIAM.

Michael H. and Jackie H. appeal orders removing them as guardians and appointing successor guardians for Cade E. R. and Madeline R. They claim that the trial court misinterpreted Wis. Stat. § 880.16(2),¹ governing the removal of a guardian. They further argue that the trial court erroneously exercised its discretion when it failed to address the doctrines of judicial estoppel and equitable estoppel. Because the court correctly applied the law and its decision to deny equitable relief reflects a reasonable exercise of discretion, we affirm the orders.

¶ 2. This case arises out of the tragic deaths of the parents of Madeline R., born January 3, 1997, and Cade E. R., born August 30, 2000. The parents were killed in a traffic accident in August 2001. Michael H. and Jackie H. were appointed to serve as the children's guardians. In January 2002, Michael and Jackie sought to resign as guardians for Madeline. Their resignation papers each stated: "Because I care for my own three children, in addition to acting as guardian for the ward's one and one half year old brother, I am unable to dedicate the necessary amount of time to meet Madeline's needs."

¶ 3. Jeffrey G. N. and Paula M. N. were appointed as successor guardians for Madeline in April 2002. In May, Jeffrey and Paula sought to be appointed guardians for Cade as well. Following a trial to the court over several days, the court appointed Jeffrey and Paula as successor guardians for Cade.²

¶ 4. The court's lengthy opinion from the bench reveals its struggle in considering the competing factors in this guardianship proceeding. The court concluded that case law established that "the best interest of the wards are of paramount consideration" with due regard to the guardian's discretion. The court referred to the unanimous expert opinion at trial that separating the siblings, particularly after the death of their parents, was psychologically harmful. The court found that the greater long-term best interests of the children would be served by restoring the sibling relationship. In addition, the court agreed with expert testimony stating that because of age and developmental factors, it would be less harmful for Cade to move to another household than it would be for Madeline.

¶ 5. The court specifically found that "the long-term gain of reestablishing and preserving the sibling relationship will in the course of Cade's lifetime outweigh the cost of terminating the attachments within the [H.] household." The court attached weight to Dr. Allen Hauer's testimony, finding that "he articulated clearly and persuasively a rationale applicable to the case, giving decisive weight to the value of establishing and preserving the sibling unity in a single household." The court weighed the advantages and disadvantages presented in each household and found that it was in the children's best interest to appoint Jeffrey and Paula to be Cade's successor guardians. The court found, under Wis. Stat. § 880.16, no grounds to remove Jeffrey and Paula as Madeline's guardians, but that grounds had been established to remove Michael and Jackie as Cade's guardians.

¶ 6. Michael and Jackie appeal. They argue that the trial court misinterpreted Wis. Stat. § 880.16(2)³ by applying a "best interest" standard not found in the statute. They further argue the term "trust" refers to a fiduciary relationship and there is no evidence that Michael and Jackie breached a fiduciary responsibility. They point to expert testimony showing no harm to Cade resulting from their guardianship. In addition, they contend guardianship law does not contain a best interest test for removal of a guardian. We are unpersuaded.

¶ 7. Although the phrase "best interest" is not used in Wis. Stat. § 880.16(2), we are satisfied that the trial court did not err when it referred to the best interest of the child. In construing a statute, we are to give effect to legislative intent by looking first to the statutory language. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 939, 480 N.W.2d 823 (Ct. App. 1992). The entire section of a statute and related sections are to be considered in its construction or interpretation; we do not read statutes out of context. In determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute and related sections. Id. "The cardinal rule in interpreting statutes is that the purpose of the whole act is to be sought and is favored over a construction which will defeat the manifest object of the act." Id.

¶ 8. "[T]he overriding concern in a guardianship proceeding is the best interests of the ward." In re Tina Marie, 215 Wis. 2d 523, 528, 573 N.W.2d 207 (Ct. App. 1997); see also Wis. Stat. § 880.33. "[T]he trial court must be vigilant in assuring that a guardian properly protects the ward's interests." Tina Marie, 215 Wis. 2d at 528.

¶ 9. The promotion of the child's welfare is of paramount concern, and the courts have a superintending control, "but will not interfere with the guardian's control unless there is a failure in some particular showing a purpose to serve a selfish interest, an inclination to be indifferent to the interests of the ward, or some act detrimental to the ward's welfare." In re Bagley, 203 Wis. 89, 95, 233 N.W. 563 (1930). A general guardian of the person of an infant has responsibilities relating to the care, training, education, and general upbringing of the ward. He stands in loco parentis. "No person has a legal right to serve as a guardian. Rather, guardianship status is a privilege, with a concomitant duty, conferred upon the guardian by the trial court in the exercise of its discretion." Tina Marie, 215 Wis. 2d at 528-29.

¶ 10. We reject Michael and Jackie's contention that the term "trust" refers solely to a fiduciary relationship. Webster's Third New Int'l Dictionary 2456 (unabr. 1998) defines trust: "[5.c.] care, custody ." Consequently, there is no need for the court to find a breach of a fiduciary relationship to remove a guardian of a person. Because case law establishes that the "overriding concern" of guardianships is the "best interests" of the ward, Tina Marie, 215 Wis. 2d at 528, and "[t]he promotion of the welfare of the child is of paramount concern," Bagley, 203 Wis. at 95, we conclude the court was entitled to consider the child's best interest. Accordingly, we conclude the court properly applied Wis. Stat. § 880.16(2).

¶ 11. Michael and Jackie argue, in effect that under the law as stated in Bagley, 203 Wis. 2d at 95, the court should not "interfere with the guardian's control unless there is a failure in some particular showing a purpose to serve a selfish interest, an inclination to be indifferent to the interests of the ward, or some act detrimental to the ward's welfare."⁴ The court acknowledged this legal requirement when it found that the separation of the siblings was detrimental to their welfare. The record supports the court's finding.

¶ 12. Michael and Jackie further argue that expert testimony established no harm resulting to Cade from their guardianship. This argument is based upon their interpretation of the evidence, a matter to be determined by the trier of fact whose determination will not be disturbed where more than one reasonable inference can be drawn from credible evidence. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274 N.W.2d 647 (1979). Here, the court found that despite the capable care and diligence Michael and Jackie demonstrated, the anticipated harm to Cade due to separation from Madeline outweighed the advantages of Michael and Jackie's guardianship. We conclude that it was not error for the court to consider the harm anticipated to Cade due to separation from Madeline.

¶ 13. Next, Michael and Jackie contend that the trial court erroneously failed to apply and address the doctrine of judicial estoppel. They argue that Jeffrey and Paula took inconsistent positions in the successor guardianship proceedings involving Madeline and Cade. They point to testimony that they would not have agreed to change guardianship of Madeline if they could not remain Cade's guardians.⁵

¶ 14. The record supports the trial court's discretionary decision. As an equitable remedy, the application of judicial estoppel is addressed to trial court...