IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF V. N., AN ALLEGEDLY INCAPACITATED PERSON | |
| SUPREME COURT NO. 20080024 | |
| WARD COUNTY NO. 07-P-0138 | |
APPEAL FROM THE ORDER OF THE DISTRICT COURT
OF WARD COUNTY
HONORABLE RICHARD L. HAGAR PRESIDING
BRIEF OF APPELLANT
| Matthew H. Olson ND ID #6182 | |
| Carol K. Larson ND ID #4406 | |
| PRINGLE & HERIGSTAD, P.C. | |
| PO Box 1000 | |
| Minot, ND 58702-1000 | |
| (701) 852-0381 | |
| Attorneys for Petitioners/Appellant | |
TABLE OF CONTENTS
Paragraph
| Table of Authorities.... | i | |||
| Statement of the Issues.. | 1 | |||
| Statement of the Case.... | 3 | |||
| Statement of the Facts.... | 5 | |||
| Law and Argument | 16 | |||
| I. | The District Court erred when it determined that S.F., as | |||
| guardian, was not entitled to receive reasonable sums | ||||
| for services and for room and board furnished to the ward... | 17 | |||
| A. | Standard of Review.. | 18 | ||
| B. | The District Court abused its discretion by | |||
| determining that S.F., as guardian, was not | ||||
| entitled to receive reasonable sums for services | ||||
| and for room and board furnished to the ward | 22 | |||
| Certificate of Service. | 30 | |||
¶i
TABLE OF AUTHORITIES
Paragraph
| NORTH DAKOTA CASES: | ||
| Amerada Hess Corp. V. State ex rel. Tax Comm'r. | ||
| 2005 ND 155, 704 N.W.2d 8. | 21 | |
| In re Allmaras, 2007 ND 130, 737 N.W.2d 612... | 19,26 | |
| In re Elkin, 2007 ND 107, 735 N.W.2d 842.... | 20 | |
| NORTH DAKOTA STATUTES: | ||
| N.D.C.C. §1-02-02. | 21 | |
| N.D.C.C. §1-02-03. | 21 | |
| N.D.C.C. §1-02-05. | 21 | |
| N.D.C.C. §1-02-07. | 21 | |
| N.D.C.C. §30.1-28-12. | 11, 23, 25, 27 | |
| N.D.C.C. §30.1-29-25(1)(b).. | 26 | |
¶1
STATEMENT OF THE ISSUES
¶2 The Trial Court erred when it determined that S.F., as guardian of V.N., would not be entitled to receive reasonable sums for services and for room and board furnished to the ward.
¶3
STATEMENT OF THE CASE
¶4 This case was initiated when S.F. petitioned the court to be appointed guardian and conservator of V.N. App. P. 7. On October 5, 2007, a hearing was held regarding the petition. On October 8, 2007, the district court issued an Order appointing S.F. as guardian and Mark Westereng as conservator of V.N. App. P. 13-14. On October 24, 2007, the district court, in response for a request for reconsideration and clarification, issued a "Second Order." App. P. 15. On November 15, 2007, the district court issued an Order Appointing Guardian and Conservatorship. App. P. 19. S.F. appeals from said Orders. App. P. 3.
¶5
STATEMENT OF THE FACTS
¶6 V.N., the ward in this action, has four adult children: (1) S.F., who resides in San Antonio, T.X.; (2) A.R., who resides in Minot, N.D.; (3) A.A.V.N., who resides in Bothell, W.A.; and (4) V.K.R., who resides in Minot, N.D.
¶7 On July 27, 2007, S.F. made a motion for temporary guardianship and conservatorship over her mother, V.N. App. P. 4. On that same day, an order was issued appointing S.F. as temporary guardian and conservator of V.N. App. P. 5-6.
¶8 On August 22, 2007, S.F. petitioned the district court to be appointed guardian and conservator of V.N. App. P. 7. On September 5, 2007, L.K., a granddaughter of V.N. and the daughter of V.K.R., cross petitioned to become the guardian and conservator of V.N. A.A.V.N. and A.R. both filed a "Waiver of Notice and Nomination of Guardian," in which they both nominated S.F. as guardian of V.N. App. P. 11-12.
¶9 On October 5, 2007, a hearing was held regarding the petition. L.K. withdrew her cross petition the day of the hearing; thus, only S.F. was petitioning the court to be appointed guardian and conservator. Tr. P. 11. Thus, three of the children of V.N. - A.A.V.N., A.R., and S.F. - were in favor of S.F. being nominated guardian. V.K.R., the fourth and final child of V.N., did not petition the court nor did she attend the hearing.
¶10 On October 8, 2007, the district court issued an Order, in which the district court appointed S.F. as guardian of V.N. App. P. 13. The district court, due to alleged anger and mistrust between the family members, appointed Mark Westereng, the public administrator, as conservator of V.N. App. P. 16.
¶11 The Order dated October 8, 2007 states:
The Court ... appoints Ms. [S.F.], daughter of Ms. [V.N], as Guardian. Ms. [S.F.], as Guardian, shall have the powers and duties set out in accordance with § 30.1-28-12 of the NDCC. It is directed that those powers and duties be specifically delineated in the documentation giving said authority to the Guardian. The Guardian shall not be entitled to any remuneration for her duties as Guardian.
App. P. 13. (emphasis added).
¶12 On October 24, 2007, the district court, in response for a request for reconsideration and clarification, issued a "Second Order." The Second Order dated
October 24, 2007 states:
¶13 The Court has, in its Order of October 8th, 2007, made the decision to allow Ms. [S.F.] the opportunity to exercise care for her mother. This decision was based upon a showing by Ms. [S.F.] at the hearing that she had a great need to give her mother a better life now. She expressed a great deal of compassion for her mother, a heartfelt concern for her mother's well being, and an overriding necessity to meet all of her needs. This included all of the physical, emotional and psychological needs of Ms. [V.N.] The Court was convinced by Ms. [S.F.] that you cannot place a monetary value on such an expression of concern and compassion. Ms. [S.F.] made it clear that assets and financial gain played no part in her Petition to the Court for Guardianship. This is a Finding of Fact...
¶14 The Court found Ms. V.N.'s well being, in the care of her daughter, Ms. [S.F.], to be an overriding concern. Accordingly, this is Ms. [S.F.'s] opportunity to put forth her expression into one of clear action for the benefit of her mother without any personal gain beyond the knowledge and satisfaction she should derive from her actions alone.
¶15 Ms. [S.F.] wants to get into her mother's bed in the morning when she is waking so as to talk about the day to come. Ms. [S.F.] wants to brush her mother's hair. Ms. [S.F.] wants to make breakfast for her mother each morning. Ms. [S.F.] wants to daily rub analgesic heat salve on her mother's back to help with her stiffness. Ms. [S.F.] wants to take her mother on a daily, or at least a weekly, outing. No personal remuneration is require to accomplish these actions of love and caring. This is also a Finding of Fact. Room, board and services provided by Ms. [S.F.] and at Ms. [S.F.]'s home, to include Ms. [S.F.]'s family members, shall not be recoverable as an expense to Ms. [V.N.]'s estate.
App. P. 15-16 (Second Order dated October 24, 2007). The Order Appointing Guardian and Conservator dated November 14, 2007 states "Room, board and services provided by Ms. [S.F.] and at Ms. [S.F.]'s home, to include Ms. [S.F.]'s family members, shall not be recoverable as an expense to Ms. [V.N.]'s estate." App. P. 21.
¶16
LAW AND ARGUMENT
¶17 I. The District Court erred when it determined that S.F., as guardian, was not entitled to receive reasonable sums for services and for room and board furnished to the ward.
¶18 A. Standard of Review
¶19 "The district court has discretionary authority regarding the management of a protected person's estate, and the court's decisions on those matters will only be reversed on appeal for an abuse of discretion." In re Allmaras, 2007 ND 130, ¶ 12, 737 N.W.2d 612. "A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law." Id. (emphasis added).
¶20 "The interpretation and application of a statute is a question of law which is fully reviewable on appeal." Id. at ¶ 13. In In re Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842, the North Dakota Supreme Court stated:
¶21 The primary objective in interpreting a statute is to determine legislative intent. Amerada Hess Corp. v. State ex rel. Tax Comm'r, 2005 ND 155, ¶12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We construe statutes to give effect to all of their provisions, so that no part of the statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4).
¶22 B. The District Court abused its discretion by determining that S.F., as guardian, was not entitled to receive reasonable sums for services and for room and board furnished to the ward.
¶23 Section 30.1-28-12(10) of the North Dakota Century Code states:
The guardian is entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
(Emphasis added).
¶24 Here, in the district court's Order dated October 8, 2007, the court stated: "Guardian shall not be entitled to any remuneration for her duties as Guardian." App. P. 13 (emphasis added). In the Second Order dated October 24, 2007 and in the Order Appointing Guardian and Conservator dated November 14, 2007, the district court ordered: "Room, board and services provided by Ms. [S.F.] and at Ms. [S.F.]'s home, to include Ms. [S.F.]'s family members, shall not be recoverable as an expense to Ms. [V.N.]'s estate." App. P. 16 & 21 (emphasis added).
¶25 The district court abused its discretion when it misinterpreted and misapplied N.D.C.C. § 30.1-28-12, for the district court completely foreclosed S.F., the guardian of V.N., to a right which she is entitled. N.D.C.C. § 30.1-28-12 states that a guardian is "entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and conservator." (Emphasis added).
¶26 The district court appointed Mark Westereng, a public administrator, as the conservator of V.N. estate. App. P. 22. As conservator, he "is to expend or distribute funds 'reasonably necessary for the support, education, care, or benefit of the protected person,' taking into account various factors including the size of the estate, the probable duration of the conservatorship, and the protected person's accustomed standard of living." In re Allmaras, 2007 ND 130, ¶ 17 (quoting N.D.C.C. § 30.1-29-25(1)(b)). Mark Westereng is totally disinterested, for he is the public administrator and not related to V.N., the ward. Thus, S.F., as guardian, would not have unfettered access to V.N.'s estate. Instead, the monies S.F. would be "entitled to receive...for services and for room and board furnished to the ward" would either have to be approved by court or agreed upon between S.F. and Mark Westereng.
¶27 It is true, as put forth in the district court's orders, that S.F. did not petition to be named guardian for pecuniary gain, but this does not mean that Guardian should not be reimbursed for reasonable sums of money for services or for room and board furnished to the ward. S.F. and her family should not bear the entire financial burden of caring for V.N. As set forth in N.D.C.C. § 30.1-28-12, Guardian is absolutely "entitled to receive reasonable sums for services and for room and board furnished to the ward." Thus, the district court abused its discretion when it foreclosed S.F., as guardian, from seeking such "reasonable sums for services and for room and board furnished to the ward."
¶28 S.F. requests the district court Order be reversed and that she be "entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and conservator."
¶29 Respectfully submitted this 27th day of March, 2008.
| PRINGLE & HERIGSTAD, P.C. | |||||||
| /s/ Matthew H. Olson | |||||||
| Matthew H. Olson #6182 | |||||||
| Carol K. Larson #4406 | |||||||
| Attorneys for Guardian | |||||||
| PO Box 1000 | |||||||
| Minot, ND 58702-1000 | |||||||
| (701) 852-0381 | |||||||