Townsend v. Massey

• Court: Wisconsin Court of Appeals
• Writing for the Court: LUNDSTEN
• Citation: Townsend v. Massey, 338 Wis.2d 114, 808 N.W.2d 155, 2011 WI App 160 (Wis. App. 2011)
• Decision Date: 10 November 2011
• Docket Number: No. 2010AP3159.,2010AP3159.
• Parties: In the Matter of the GUARDIANSHIP OF WILLA L.Jennifer J. Townsend, Petitioner–Respondent, v. Thomas Massey and Rebecca Massey, Respondents–Appellants.

2011 WI App 160

338 Wis.2d 114

808 N.W.2d 155

In the Matter of the GUARDIANSHIP OF WILLA L.Jennifer J. Townsend, Petitioner–Respondent,

v.Thomas Massey and Rebecca Massey, Respondents–Appellants.

No. 2010AP3159.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 9, 2011.Opinion Filed Nov. 10, 2011.

On behalf of the respondents-appellants, the cause was submitted on the briefs of Terry L. Moore of Herrick & Hart, S.C., Eau Claire.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Steven L. Miller of Miller & Miller, River Falls.

Before LUNDSTEN, P.J., VERGERONT and BLANCHARD, JJ.

LUNDSTEN, P.J.

[338 Wis.2d 116] ¶ 1 This appeal concerns a guardianship proceeding in which Willa L., the mother of Jennifer Townsend and Rebecca Massey, was found to be in need of permanent guardianship due to a degenerative brain disorder. Jennifer Townsend was appointed permanent guardian, and she was granted certain powers, including the power to supervise contact for 90 days between Willa and Jennifer's sister and the sister's husband, Rebecca and Thomas Massey. In a subsequent proceeding, Townsend's powers were extended and modified. The Masseys appeal, challenging the validity of the guardianship powers that give Townsend the power to restrict their contact with Willa. We affirm the circuit court.

Background

¶ 2 Jennifer Townsend petitioned for guardianship of her mother, Willa L. The petition alleged that the guardianship was necessary because Willa suffers from “dementia and memory loss,” rendering her unable “to make reasonable decisions regarding her care and safety.” The petition also alleged that Willa is unable “to refuse communication or visits from potentially abusive family members.”

¶ 3 On May 26, 2010, after a hearing, the court appointed Townsend as temporary guardian. The written order found that there was a reasonable likelihood that Willa was incompetent, appointed Townsend as temporary guardian, and granted Townsend the authority to “control communication and visitation” between Willa and “family members.”

¶ 4 In July 2010, the court held a hearing on permanent guardianship. Rebecca Massey, another of Willa's children, appeared at this hearing with her husband, Thomas Massey. Neither the Masseys nor anyone else contested the need for a guardianship. The hearing addressed who should be the permanent guardian and whether and to what extent the guardian should have the power to restrict contact between Willa and the Masseys. There was testimony that Willa at times suffered “great stress” from her contact with Rebecca. Willa's guardian ad litem explained that there was reason to believe that phone contact with Rebecca has the potential to cause “more distress than is good for [Willa]” and that “inadvertences on the part of the Masseys ... have in the past caused [Willa] great anxiety.” The guardian ad litem recommended that the court impose contact restrictions, and also stated that Willa requested, in effect, that Townsend be her guardian.

¶ 5 On July 22, 2010, the court issued a written permanent guardianship order finding Willa incompetent and appointing Townsend as permanent guardian. The order provided, among other things, that Townsend, as guardian, had the power to “supervise” and record telephone communications and to “control, supervise and prohibit” personal contact between Willa and the Masseys for a period of 90 days.

¶ 6 On October 4, 2010, Townsend moved to modify and extend the contact-related powers of the guardianship, citing events subsequent to the July hearing. Townsend filed an amended motion on the same topic on October 6, 2010. The Masseys responded with their own set of requests. The circuit court held an evidentiary hearing. On November 18, 2010, the court issued a written order that modified the July order and granted Townsend ongoing power to control or supervise the Masseys' contact with Willa.

¶ 7 The Masseys filed a notice of appeal on December 27, 2010. We discuss additional facts as necessary below.

Discussion

¶ 8 The Masseys complain about the May 2010 temporary guardianship order, the July 2010 permanent guardianship order, and the November 2010 modification order. For the reasons discussed below, we do not reach the merits of the Masseys' arguments.

A. The Appeal Is Not Timely With Respect To The May 2010 And July 2010 Orders

¶ 9 The Masseys' notice of appeal was filed December 27, 2010, which was 215 days after the May 2010 order, 158 days after the July 2010 order, and 39 days after the November 2010 order. It is undisputed that the 90–day time limit for filing an appeal applies and, therefore, on its face the appeal is timely only with respect to the November 2010 order. See Wis. Stat. § 808.04(1) ¹ (“An appeal to the court of appeals must be initiated ... within 90 days of entry [of a final judgment or order] if notice is not given....”).

¶ 10 The Masseys' brief-in-chief makes several arguments and statements regarding all three orders and the related proceedings, but ignores whether the appeal is timely with respect to each of the three orders. In her responsive brief, Townsend argues that the appeal is not timely with respect to either the May 2010 or July 2010 orders. The Masseys' reply brief asserts that the July 2010 order was non-final and so is reviewable as a non-final order leading up to the November 2010 order. The Masseys do not separately discuss the timeliness of the May 2010 order, but rather appear to similarly assume that it is non-final and may be reviewed if the July 2010 order was non-final. Thus, the appealability of the May and July orders hinges on the proposition that the July 2010 order was non-final. However, as we explain below, the July 2010 order was final.

¶ 11 A notice of appeal from a final order must be timely filed to give this court jurisdiction over the appeal. Wis. Stat. RuleE 809.10(1)(e). Whether an order is final presents a question of law that we review de novo. Sanders v. Estate of Sanders, 2008 WI 63, ¶ 21, 310 Wis.2d 175, 750 N.W.2d 806. On this topic, our supreme court has explained:

[A] document constitutes the final document for purposes of appeal when it satisfies each of the following conditions: (1) it has been entered by the circuit court, (2) it disposes of the entire matter in litigation as to one or more parties, and (3) it states on the face of the document that it is the final document for purposes of appeal.

Tyler v. RiverBank, 2007 WI 33, ¶ 26, 299 Wis.2d 751, 728 N.W.2d 686. “The test of finality is not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered. This must be established by looking at the document itself, not to subsequent events.”

Fredrick v. City of Janesville, 92 Wis.2d 685, 688, 285 N.W.2d 655 (1979).

¶ 12 Turning to the July 2010 guardianship order, that order was titled “Determination and Order on Petition for Guardianship Due to Incompetency,” and included the statement: “This is a final judgment/order for purposes of appeal.” Among other things, the order contained the court's finding of Willa's incompetency, appointed Townsend as guardian, and ordered that certain of Willa's rights were removed and other of Willa's rights were transferred to the guardian. The order's section titled “Powers to be transferred to Guardian” referred to an attached addendum. That addendum stated additional findings, and granted the guardian “additional specific powers” that included the following:

2. The Guardian has the power to supervise telephone communication between [Willa] and Rebecca and/or Thomas Massey, including telephone communication initiated by [Willa].

3. All telephone communication with [Willa] shall be recorded for ninety (90) days. An extension or other modification of this authority may be granted by the Court.

4. The Guardian has the power to control, supervise and prohibit personal contact and visitation between [Willa] and Rebecca and/or Thomas Massey, including personal contact initiated by [Willa].

5. Personal contact between [Willa] and Rebecca and/or Thomas Massey shall be supervised by a neutral, non-family member for ninety (90) days. Continued supervised visits may be granted by the Court upon motion of the Guardian.

¶ 13 The Masseys' argument that this order was not final begins with a mischaracterization. The Masseys broadly assert that the July guardianship order was “effective for only 90 days.” That is not correct. The only expiration dates in the order relate to the provisions authorizing the recording of conversations and the limiting of personal contact.

¶ 14 The Masseys next argue that the contact powers were left unsettled by the July guardianship order and were only “finally determined” in the November modification order. The Masseys believe that this scenario renders the July guardianship order non-final. We disagree.

¶ 15 We first observe that the Masseys' arguments are insufficiently developed. To the extent we can discern what the Masseys' arguments are, the arguments have no merit. For example, the Masseys seem to argue that we should view the July guardianship order in light of the subsequent modification proceeding. But, as noted above, finality is determined “by looking at the document itself, not to subsequent events.” See id. at 688, 285 N.W.2d 655.

¶ 16 The Masseys appear to argue that it matters that the circuit court stated at the time of the July order that it might later extend or modify the order. If the Masseys mean to make this argument, it is unavailing. The court's observation is nothing more than a recognition that the guardianship order in this case, like guardianship orders generally, might be altered in the future. We agree with Townsend that there is no rule preventing guardianship matters from generating a series of final orders. See Wis. Stat. § 54.63 (providing for further proceedings to address...