Miller, Matter of

• Decision Date: 01 August 1980
• Docket Number: No. 50442,50442
• Citation: 616 P.2d 287,5 Kan.App.2d 246
• Parties: In the Matter of the Guardianship and Conservatorship of Frederick J. MILLER.
• Court: Kansas Court of Appeals

Page 287

616 P.2d 287

5 Kan.App.2d 246

In the Matter of the Guardianship and Conservatorship of Frederick J. MILLER.

No. 50442.

Court of Appeals of Kansas.

Aug. 1, 1980.

Petition for Review Granted Sept. 12, 1980.

Syllabus by the Court

1. Subject matter jurisdiction is vested by statute and cannot ordinarily be established by consent, waiver or estoppel.

2. When a court is without jurisdiction of the subject matter, its only permissible course of action is to dismiss the case.

3. K.S.A. 59-3009 provides subject matter jurisdiction to appoint a guardian for any incapacitated person who is within Kansas, even though a foreign jurisdiction has previously exercised jurisdiction by appointing a guardian or conservator, or both, and continues to exercise such jurisdiction.

4. Generally, a party is bound by a judgment entered on stipulation or consent and may not appeal from a judgment in which he or she has acquiesced except for questions concerning subject matter jurisdiction.

5. Subject matter jurisdiction and comity are not equivalent concepts.

6. Subject matter jurisdiction is the power to decide concerning the general question involved and not the exercise of that power.

7. Judicial comity is a principle in accordance with which the courts of one state or jurisdiction give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect.

8. In considering the application of full faith and credit, the state of the forum has at least as much leeway to disregard the custody or guardianship decree of a sister state, to qualify it, or to depart from it, as does the state where it is rendered.

9. Under the facts and circumstances set forth in this opinion, the court may allow attorney fees to an attorney who files a petition for a guardianship at the request of a proposed ward pursuant to K.S.A. 59-3032.

10. In reviewing an allegation that the trial judge abused her discretion, we consider the facts as they appeared to the trial judge at the time the disputed decision was made.

11. A fiduciary having control over estate assets in a foreign jurisdiction may not on appeal assert lack of jurisdiction over the estate assets as a defense on appeal when the fiduciary himself implicitly imparted to the Kansas court the authority to make an order indirectly affecting the foreign jurisdiction's control over them.

12. In an action for the appointment of a guardian pursuant to K.S.A. 59-3009, it is held: Under the facts and circumstances set forth herein, the trial court did not err in granting attorney fees to an attorney who at the request of the proposed ward filed a petition for the appointment of a guardian for the proposed ward.

Charles R. Hay of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, for appellant, Rex S. Miller.

Eric W. Severson, pro se.

Patrick Nichols, Topeka, guardian ad litem for appellee, Frederick J. Miller.

Before FOTH, C. J., and ABBOTT and SPENCER, JJ.

ABBOTT, Judge:

Rex S. Miller, the Nebraska guardian and conservator for Frederick J. Miller appeals from a judgment awarding attorney fees to Eric W. Severson, who petitioned for the appointment of a Kansas guardian and conservator for Frederick J. Miller. At the time the petition was filed, Severson was aware that Frederick Miller had a guardian and conservator in Nebraska. Laboring under a number of theories, the Nebraska guardian and conservator challenges jurisdiction, alleges that the principles of comity preclude exercise of jurisdiction, and challenges the award of attorney fees.

By way of background, Frederick Miller was a dentist in the United States Air Force and is a retired Air Force officer. On June 27, 1961, he was committed as a voluntary patient to the Omaha Veterans Administration Hospital. Rex Miller, the son of Frederick Miller and his first wife, had been appointed in Nebraska as guardian and conservator for Frederick Miller, and continues to serve in that capacity. At some time after his voluntary commitment to the Omaha VA facilities, Dr. Miller was transferred to the Veterans Administration Hospital in Knoxville, Iowa, and remained there until December 20, 1966, when he was transferred to the Topeka VA Hospital. The second wife of Frederick Miller and their two adult daughters live in Topeka, and they were instrumental in having him transferred to Topeka.

Miller was 76 years old when the petition was filed in Shawnee County, and he had been a patient in the Topeka VA Hospital for twelve years. He hired Eric Severson to assist him in being placed in a nursing home and to obtain an additional allowance for him for clothing and spending money. Severson, as petitioner, filed an action pursuant to K.S.A. 59-3001, et seq., in Shawnee County, Kansas, praying for the appointment of a guardian and conservator; and the court appointed Patrick Nichols as guardian ad litem for Miller. Thereafter, Severson did not contact Miller in any way but assumed an adversary position to Miller, although he attempted to pursue what he perceived to be Miller's wishes. The Nebraska guardian and conservator entered his appearance in Kansas and the matter proceeded to trial.

At trial, the VA Hospital administrators and Miller were all of the opinion that Rex Miller was not as responsive to his father's needs as they felt he should be. Evidence was presented that the elder Miller had investment income, a military retirement pension, social security, and a more than moderate savings account. The VA people felt that Miller could function well in a nursing home and should be so placed. Rex Miller was not agreeable. The VA people were also of the opinion that Miller was not receiving an adequate allowance for clothing or sufficient spending money to permit him to participate in programs that they felt would be beneficial to him. Rex Miller had not visited his father since his transfer to Topeka in 1966. Miller himself was not as positive of the need to change guardians when he testified; he did make it clear he wanted out of the VA Hospital and that he did not always have as much money as he would like. He also made it very clear that he wanted either his wife or Rex to be his guardian and conservator, and that he was not dissatisfied with Rex as his guardian and conservator. There is no evidence in the record from any member of Frederick Miller's family that they were unhappy with his care or that they desired a change of guardian.

During Severson's presentation of evidence in support of the petition, the parties requested a recess. They later announced that they had reached a settlement and stipulated that Karen Schuh be appointed guardian of the person of Frederick J. Miller in the State of Kansas, and that Miller be considered for placement outside the VA Hospital. The Nebraska guardianship and conservatorship was to remain open. The Kansas guardian qualified, was appointed, and assumed her duties. The trial court subsequently awarded attorney fees to Severson and to the guardian ad litem and assessed them against the ward's estate. This appeal followed. Although the court's jurisdiction is challenged, the appointment of a Kansas guardian is not otherwise challenged nor is the fee awarded to the guardian ad litem an issue in this appeal. The only complaint is the award of attorney fees to Eric Severson.

The Nebraska guardian and conservator first challenges the jurisdiction of the Kansas court to entertain a guardianship proceeding, since the court relied solely on Miller's presence in Shawnee County for jurisdiction (K.S.A. 59-3009). It is important to note that we are not dealing with jurisdiction as to a conservatorship. A conservatorship proceeding is required to be filed in the "county of the residence of the proposed conservatee." The conservatorship aspect of the proceeding was abandoned as a part of the settlement. Thus, we are concerned here only with the court's jurisdiction of a guardianship proceeding.

The Nebraska guardian and conservator recognizes that he agreed to the appointment of the Kansas guardian, but correctly asserts that his consent may not waive subject matter jurisdiction. Subject matter jurisdiction is vested by statute and cannot ordinarily be established by consent, waiver or estoppel. In re Estate of Freshour, 177 Kan. 492, 280 P.2d 642 (1955); City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P.2d 243 (1947). When a court is without jurisdiction of the subject matter, its only permissible course of action is to dismiss the case. Inland Industries, Inc. v. Teamsters & Chauffeurs Local Union, 209 Kan. 349, 356, 496 P.2d 1327 (1972).

Appellant relies on several cases decided prior to the adoption of K.S.A. 59-3009 which hold that Kansas had no subject matter jurisdiction to appoint a guardian unless the proposed ward is a permanent resident of this state. In Foran v. Healy, 73 Kan. 633, 85 P. 751 (1906), a guardian was appointed for a ward in Lincoln County, Kansas, at which time the ward had been committed to the state asylum for the insane by the Probate Court of Shawnee County, Kansas. Some four months after the guardian was appointed in Lincoln County, a guardian was appointed in Shawnee County. The ward owned real estate and personal property in Lincoln County; his wife and children lived in Lincoln County on a farm owned by the ward and his wife. The farm was subject to a mortgage; foreclosure proceedings were commenced and service was obtained only on the Lincoln County guardian; the land was sold. Some seven years later the ward was restored and unsuccessfully attempted to redeem the real estate. The Supreme Court held that the legislative intent of the commitment statute was in the nature of a police regulation, the purpose of which was to give a county jurisdiction over an insane person who might be found therein in order to protect the public and the insane person. Jurisdiction over the ward in Shawnee County was held to be...