Sweeney v. Summers

• Decision Date: 11 October 1977
• Docket Number: No. 27342,27342
• Citation: 571 P.2d 1067,194 Colo. 149
• Parties: Hugh E. SWEENEY, Conservator of the Estate of Edythe G. Walker, Protected Person, Petitioner-Appellant, v. Jane Walker SUMMERS, personal representative of the Estate of Lee H. Walker,aka Lee Howell Walker, Deceased, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 1067

571 P.2d 1067

194 Colo. 149

Hugh E. SWEENEY, Conservator of the Estate of Edythe G Walker, Protected Person, Petitioner-Appellant, v. Jane Walker SUMMERS, personal representative of the Estate of Lee H. Walker,aka Lee Howell Walker, Deceased Respondent-Appellee.

No. 27342.

Supreme Court of Colorado, En Banc.

Oct. 11, 1977.

W. David McClain, Edwin A. Williams, Samuel J. Eaton, Stephen W. Miller, Denver, for petitioner-appellant.

Ernest O. Tullis, Colorado Springs, for respondent-appellee.

KELLEY, Justice.

The primary question before us is whether section 15-11-203, C.R.S.1973, of the Colorado Probate Code is constitutional. The subsidiary question, if the first is answered in the affirmative, is whether the court abused its discretion. We hold that it is constitutional and that the court acted properly under the circumstances. We therefore affirm.

Lee Walker died testate on November 4, 1974, leaving real property ¹ to his sister, the respondent, with whom he was tenant in common, and the residue of his estate to his wife. His widow, Edythe G. Walker, had suffered a debilitating stroke in 1972 which rendered her physically and mentally incompetent.

Hugh E. Sweeney, the petitioner, was appointed conservator of the estate and affairs of Edythe Walker, a protected person. Sweeney is the son of Edythe Walker. Pursuant to section 15-14-416(2), C.R.S.1973, Sweeney filed a petition for instructions concerning his fiduciary responsibility in regard to electing to take against Walker's will, section 15-11- 203. He contended that an election against the will was in the protected person's best interests, as it was necessary in order to provide adequate support for her during her probable life expectancy.

The probate court held two hearings on Sweeney's petition. The parties stipulated that Edythe Walker was mentally incompetent and that it was highly improbable that she would ever recover, either physically or mentally. The parties further stipulated that Edythe Walker's age was 65 at the date of the hearing and that her statutory life expectancy was 12.31 years. ²

Applying the statutory tests, the court entered an order which held that under the circumstances it was not necessary to allow the election in order to provide adequate support for the widow. It is this order which is under review.

I.

Section 15-11-203, C.R.S.1973, ³ the statute under attack, states:

"The right of election of the surviving spouse may be exercised only during his lifetime by him. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his probable life expectancy." (Emphasis added.)

The petitioner contends that the italicized language of this section is an unconstitutional denial of equal protection under the Fourteenth Amendment because it sets up a classification which wrongfully distinguishes between a competent surviving spouse and an incompetent surviving spouse. ⁴ He argues that since adequacy of support is not a prerequisite condition to a competent spouse's election under the statute, such a requirement as to an incompetent spouse constitutes a denial of equal protection under the Fourteenth Amendment. He further contends that in treating incompetent spouses differently than competent spouses, section 15-11-203 adversely singles out a class of persons whom the state purportedly seeks to protect and that the classification is not rationally related to the state's interest. We are not persuaded by the appellant's arguments.

The equal protection clause of the Fourteenth Amendment does not deny a state the power to treat classes of persons differently as long as the classifications are based on reasonable differences and are not arbitrary. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); People v. Gould, Jr., 188 Colo. 113, 532 P.2d 953 (1975).

A somewhat similar argument to that of the petitioner was made in Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1972) where the husband, who was the non-custodial parent, claimed that the statute giving the custodial parent the right to determine the child's upbringing, " 'including his education, health care, and religious training,' " denied him the equal protection of the law. This court in Rhoades said:

"This argument is totally without merit. A legislative classification, where, as here, the class created is not a suspect one, need only be 'reasonable, not arbitrary, (resting) upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989. Here it is obvious that the legislature considered that the best interest of the child would be served by having these crucial decisions made by the parent who has the most constant and intense contact with the child the custodial parent."

The crucial decisions in matters concerning the affairs of protected persons have been delegated by section 15-14-402, C.R.S.1973, infra, exclusively to the trial court and not to the conservator. Note specifically subsections (a) and (b). ⁵

The challenged class in the instant proceeding is that of "protected persons," as distinguished from those who have the legal capacity to manage their own property and affairs. Sections 15-14-101, et seq., C.R.S.1973, and sections 15-14-401, et seq., C.R.S.1973.

A brief reference to the statutory provisions will suffice to indicate the concern of the General Assembly for the "protected person" and the public policy of this state in reference to this class of citizens. A "protected person," by definition, "is a minor or other person for whom a conservator has been appointed or other protective order has been made." ⁶

Also in the definitional section we find this:

"(3) A 'protective proceeding' is a proceeding under the provisions of section 15-14-401 to determine that a person cannot effectively manage or apply his estate to necessary ends, either because he lacks the ability or is otherwise inconvenienced, or because he is a minor, and to secure administration of his estate by a conservator or other appropriate relief."

The statutory scheme provides that protective proceedings are initiated by petition and, after notice and hearing, the court may appoint a conservator. The conservator of Edythe G. Walker was thus appointed by the court. ⁷ Relevant to the provision for appointment is section 15-14-401(3) which, in pertinent part, provides:

"Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that a person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, . . . ; and that the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds." (Emphasis added.)

The statutory scheme then continues with a significant provision. Section 15-14-402, C.R.S.1973, reads:

"(1) After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:

"(a) Exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated ;

"(b) Exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state shall be managed, expended, or distributed to or for the use of the protected person or any of his dependents." (Emphasis added.)

It is conceded by the petitioner that the equal protection clause does not preclude creation of distinct classes; that it requires only that such classifications be reasonably related to some legitimate state interest. He further concedes the state has a legitimate interest in incompetent persons by quoting the following passage from Shapter v. Pillar, 28 Colo. 209, 63 P. 302 (1900):

"It falls to the state to take care of those who, by reason of mental incapacity, cannot take care of themselves. Ex Parte Cranmer, 12 Ves. 445."

In Shapter the court observed:

"In the absence of any statutory provision on the subject, a court of chancery, under the rules of common law, would undoubtedly have authority to protect the estate of those who by reason of mental infirmities, were unable to do so, and to accomplish this end, could appoint a proper person for that purpose."

It thus appears the class created by the statute here is grounded in the common law and is therefore not suspect nor arbitrary, but rests upon some ground of difference having a fair and substantial relation to the object of the legislation. The scheme of the statute does not deprive incompetent spouses of any fundamental (constitutional) rights and there is a rational basis to support it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Bensing v. United States, 551 F.2d 262 (10th Cir. 1977).

Where, as here, neither a suspect classification nor the infringement of fundamental rights is involved, an alleged statutory discrimination will not be invalidated if any state of facts reasonably may be conceived to justify it. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Johnson v. Division of Employment, Colo., 550 P.2d 334 (1976); Mosgrove v. Town of Federal Heights, Colo., 543 P.2d 715 (1975)....