FILED MARCH 23, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Guardianship of ) No. 32979-8-111 ) PAULA A. FOWLER. ) ) ) ) PAULA A. FLOWER and ) JOSEPH VALENTE, ) ) UNPUBLISHED OPINION Respondents, ) ) v. ) ) LIN O'DELL, ) ) Appellant. )
PENNELL, J. -Lin O'Dell served as Paula Fowler's limited guardian. Ms. O'Dell
appeals the superior court's findings of fact, conclusions oflaw, arid order on show cause
that found Ms. O'Dell violated several statutes and standards of practice and ordered her
to (1) pay investigative fees, and (2) disgorge excessive service fees of $2,591.50. Ms.
O'Dell appeals, arguing the superior court's order violated her due process rights. We ; I 1 affirm.
I i 1 _, l No. 32979-8-111 In re Guardianship ofFowler
FACTS
In 2007, Ms. O'Dell was appointed as limited guardian of Ms. Fowler and her
estate. In 2013, at a hearing to consider the guardian's proposed annual report,
accounting and budget, the court noted concerns with Ms. O'Dell's performance. The
court subsequently entered an order to show cause, detailing 13 suspected violations of
fiduciary duties, standards of practice, and state statutes. The order required Ms. O'Dell
to respond and provide the court with additional information. Ms. O'Dell timely
responded, providing the court with what it characterized as "voluminous material."
Report of Proceedings (RP) (Dec. 31, 2013) at 7, 12; Clerk's Papers (CP) at 277. Upon
receiving Ms. O'Dell's submission, the court appointed Joseph Valente as investigator
and special master to review the matter and answer specified questions.
Mr. Valente reviewed the guardianship file, including Ms. O'Dell's recent
submission of materials and declarations from Ms. O'Dell and Ms. Fowler. He also
followed up directly with Ms. O'Dell for additional information. Mr. Valente then filed a
comprehensive report in response to the court's order. His report did not agree with all
the allegations set forth in the show cause order. However, the report did include several I
II findings that were critical of Ms. O'Dell. Mr. Valente recognized that serving as Ms.
Fowler's guardian had "been a nightmare for [Ms. O'Dell]." CP at 363. Fortunately, Mr. l f 2 No. 32979-8-111 In re Guardianship of Fowler
Valente concluded Ms. O'Dell's violations of statutes and standards of practice had "no
direct impact" on Ms. Fowler, outside the imposition of some excessive fees. Id. Ms.
O'Dell filed a written response to Mr. Valente's report, disputing his findings.
On March 4, 2014, the court held a review hearing at which Ms. O'Dell, Mr.
Valente, and Ms. Fowler addressed the court. At no time prior to or during the hearing
did Ms. O'Dell request an evidentiary hearing.
At some point after the hearing, the court issued proposed findings of fact and
conclusions of law. 1 Ms. O'Dell then filed a detailed written objection claiming, among
other things, that the court's procedure violated due process because no witnesses were
called and there had not been opportunity for cross-examination.
Shortly after receiving Ms. O'Dell's objection, the court held a presentment
hearing. Ms. O'Dell, Mr. Valente, and Ms. Fowler all addressed the court. During her
remarks, Ms. O'Dell criticized the court's procedures and claimed she had not been given
a sufficient opportunity to respond to Mr. Valente's report. The court disagreed with Ms.
O'Dell's procedural concerns, though it noted the court bore some responsibility for
failing to promptly "raise specific issues" in the guardianship. RP (Nov. 20, 2014) at 46.
1 The record on appeal does not include the court's proposed findings or the date of its submission to the parties.
3 No. 32979-8-III In re Guardianship ofFowler
Ultimately the court entered final written findings and conclusions which were consistent
with the recommendations in Mr. Valente's report. The court ordered (1) Ms. O'Dell pay
$3,000.00 to Mr. Valente for his services as investigator and special master, (2) Ms.
O'Dell disgorge to the guardianship estate $2,591.50, and (3) dismissal of the
Washington limited guardianship.
Ms. O'Dell appeals.
ANALYSIS
Ms. O'Dell contends the superior court erred by failing to hold an evidentiary
hearing to resolve disputed issues of fact she established in her declaration and in
response to the show cause order. According to Ms. O'Dell, the court essentially
employed a summary judgment procedure to rule against her without following CR 56(c).
We review the superior court's disposition for abuse of discretion. In re Guardianship of
Cornelius, 181 Wn. App. 513,528,326 P.3d 718 (2014).
No statute or court rule requires a trial or evidentiary hearing prior to termination '.I
of a guardianship. Both RCW 11.88.120(1) and the former RCW 11.88.120(1) and (4)
( 1991) provide that a court, for good reason, may modify or terminate a guardianship and
grant relief "as it deems just and in the best interest of the incapacitated person."
Supplementing this, the legislature has given courts "full and ample power and authority
4 No. 32979-8-III In re Guardianship of Fowler
... to administer and settle ... [a]ll matters concerning the estates and assets of
incapacitated ... persons." RCW l l.96A.020(l)(a); see In re Guardianship of McKean,
136 Wn. App. 906, 913-14, 151 P.3d 223 (2007). RCW 1 l.96A.020(2) grants the court
"full power and authority to proceed ... in any manner and way that to the court seems
right and proper."
Perhaps recognizing the lack of statutory support, Ms. O'Dell couches her
argument in terms of due process. She claims the fundamental principles of due process
required the court to hold an evidentiary hearing prior to terminating the guardianship and
imposing approximately $5,000 in costs and fees. We do not dispute that Ms. O'Dell was
entitled to due process prior to imposition of the superior court's final order. However,
due process is a flexible concept that does not demand a strict set of procedures in every
situation. Mathews v. Eldridge, 424 U.S. 319,334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
To comport with due process, a court procedure must provide notice and a meaningful
opportunity to be heard. Morrison v. Dep 't ofLabor & Indus., 168 Wn. App. 269, 273,
277 P.3d 675 (2012).
No due process violation occurred here. Prior to issuance of the final order, the
court provided Ms. O'Dell with detailed written notice of its concerns. Not only did Ms.
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FILED MARCH 23, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Guardianship of ) No. 32979-8-111 ) PAULA A. FOWLER. ) ) ) ) PAULA A. FLOWER and ) JOSEPH VALENTE, ) ) UNPUBLISHED OPINION Respondents, ) ) v. ) ) LIN O'DELL, ) ) Appellant. )
PENNELL, J. -Lin O'Dell served as Paula Fowler's limited guardian. Ms. O'Dell
appeals the superior court's findings of fact, conclusions oflaw, arid order on show cause
that found Ms. O'Dell violated several statutes and standards of practice and ordered her
to (1) pay investigative fees, and (2) disgorge excessive service fees of $2,591.50. Ms.
O'Dell appeals, arguing the superior court's order violated her due process rights. We ; I 1 affirm.
I i 1 _, l No. 32979-8-111 In re Guardianship ofFowler
FACTS
In 2007, Ms. O'Dell was appointed as limited guardian of Ms. Fowler and her
estate. In 2013, at a hearing to consider the guardian's proposed annual report,
accounting and budget, the court noted concerns with Ms. O'Dell's performance. The
court subsequently entered an order to show cause, detailing 13 suspected violations of
fiduciary duties, standards of practice, and state statutes. The order required Ms. O'Dell
to respond and provide the court with additional information. Ms. O'Dell timely
responded, providing the court with what it characterized as "voluminous material."
Report of Proceedings (RP) (Dec. 31, 2013) at 7, 12; Clerk's Papers (CP) at 277. Upon
receiving Ms. O'Dell's submission, the court appointed Joseph Valente as investigator
and special master to review the matter and answer specified questions.
Mr. Valente reviewed the guardianship file, including Ms. O'Dell's recent
submission of materials and declarations from Ms. O'Dell and Ms. Fowler. He also
followed up directly with Ms. O'Dell for additional information. Mr. Valente then filed a
comprehensive report in response to the court's order. His report did not agree with all
the allegations set forth in the show cause order. However, the report did include several I
II findings that were critical of Ms. O'Dell. Mr. Valente recognized that serving as Ms.
Fowler's guardian had "been a nightmare for [Ms. O'Dell]." CP at 363. Fortunately, Mr. l f 2 No. 32979-8-111 In re Guardianship of Fowler
Valente concluded Ms. O'Dell's violations of statutes and standards of practice had "no
direct impact" on Ms. Fowler, outside the imposition of some excessive fees. Id. Ms.
O'Dell filed a written response to Mr. Valente's report, disputing his findings.
On March 4, 2014, the court held a review hearing at which Ms. O'Dell, Mr.
Valente, and Ms. Fowler addressed the court. At no time prior to or during the hearing
did Ms. O'Dell request an evidentiary hearing.
At some point after the hearing, the court issued proposed findings of fact and
conclusions of law. 1 Ms. O'Dell then filed a detailed written objection claiming, among
other things, that the court's procedure violated due process because no witnesses were
called and there had not been opportunity for cross-examination.
Shortly after receiving Ms. O'Dell's objection, the court held a presentment
hearing. Ms. O'Dell, Mr. Valente, and Ms. Fowler all addressed the court. During her
remarks, Ms. O'Dell criticized the court's procedures and claimed she had not been given
a sufficient opportunity to respond to Mr. Valente's report. The court disagreed with Ms.
O'Dell's procedural concerns, though it noted the court bore some responsibility for
failing to promptly "raise specific issues" in the guardianship. RP (Nov. 20, 2014) at 46.
1 The record on appeal does not include the court's proposed findings or the date of its submission to the parties.
3 No. 32979-8-III In re Guardianship ofFowler
Ultimately the court entered final written findings and conclusions which were consistent
with the recommendations in Mr. Valente's report. The court ordered (1) Ms. O'Dell pay
$3,000.00 to Mr. Valente for his services as investigator and special master, (2) Ms.
O'Dell disgorge to the guardianship estate $2,591.50, and (3) dismissal of the
Washington limited guardianship.
Ms. O'Dell appeals.
ANALYSIS
Ms. O'Dell contends the superior court erred by failing to hold an evidentiary
hearing to resolve disputed issues of fact she established in her declaration and in
response to the show cause order. According to Ms. O'Dell, the court essentially
employed a summary judgment procedure to rule against her without following CR 56(c).
We review the superior court's disposition for abuse of discretion. In re Guardianship of
Cornelius, 181 Wn. App. 513,528,326 P.3d 718 (2014).
No statute or court rule requires a trial or evidentiary hearing prior to termination '.I
of a guardianship. Both RCW 11.88.120(1) and the former RCW 11.88.120(1) and (4)
( 1991) provide that a court, for good reason, may modify or terminate a guardianship and
grant relief "as it deems just and in the best interest of the incapacitated person."
Supplementing this, the legislature has given courts "full and ample power and authority
4 No. 32979-8-III In re Guardianship of Fowler
... to administer and settle ... [a]ll matters concerning the estates and assets of
incapacitated ... persons." RCW l l.96A.020(l)(a); see In re Guardianship of McKean,
136 Wn. App. 906, 913-14, 151 P.3d 223 (2007). RCW 1 l.96A.020(2) grants the court
"full power and authority to proceed ... in any manner and way that to the court seems
right and proper."
Perhaps recognizing the lack of statutory support, Ms. O'Dell couches her
argument in terms of due process. She claims the fundamental principles of due process
required the court to hold an evidentiary hearing prior to terminating the guardianship and
imposing approximately $5,000 in costs and fees. We do not dispute that Ms. O'Dell was
entitled to due process prior to imposition of the superior court's final order. However,
due process is a flexible concept that does not demand a strict set of procedures in every
situation. Mathews v. Eldridge, 424 U.S. 319,334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
To comport with due process, a court procedure must provide notice and a meaningful
opportunity to be heard. Morrison v. Dep 't ofLabor & Indus., 168 Wn. App. 269, 273,
277 P.3d 675 (2012).
No due process violation occurred here. Prior to issuance of the final order, the
court provided Ms. O'Dell with detailed written notice of its concerns. Not only did Ms.
O'Dell receive notice in the form of the superior court's initial order to show cause, she
5 No. 32979-8-III In re Guardianship of Fowler
also received the more comprehensive report by Mr. Valente. Ms. O'Dell was given
ample opportunity to respond to both documents. She submitted a lengthy written
response to the order to show cause and also responded in writing to Mr. Valente's report.
After the show cause and review hearings, Ms. O'Dell filed a written objection to the
court's proposed findings. She addressed the court orally during hearings held before
each of the court's orders. At no point during this process did Ms. O'Dell request an
evidentiary hearing. 2
We are unmoved by Ms. O'Dell's complaint that the superior court improperly
considered unswom testimony that had not been subject to cross-examination. With the
exception of the declaration from Ms. Fowler, 3 the only factual information considered by
the court came from Ms. O'Dell. Mr. Valente was not a witness. His review was limited
to existing court records and information supplied by Ms. O'Dell. The accuracy and
reliability of the hearings would not have been enhanced by requiring Mr. Valente to
present his findings as a witness, subject to cross-examination.
2 Ms. O'Dell first raised her concerns regarding the court's procedures in her objection to the court's proposed findings. However, even at that late date Ms. O'Dell never requested an evidentiary hearing. 3 Ms. Fowler's declaration is referenced in Mr. Valente's report, but it does not
appear to be part of the record on appeal. In any event, Ms. O'Dell's claims on appeal pertain to the superior court's reliance on Mr. Valente's report, not Ms. Fowler's declaration.
6 No. 32979-8-111 In re Guardianship of Fowler
Because the procedure utilized by the superior court comported with due process,
we affirm the order terminating Ms. Fowler's guardianship and requiring disgorgement of
excessive service fees. Ms. O'Dell separately appeals the provision of court's order
requiring payment of Mr. Valente's fees. Her arguments rest entirely on her due process
claims regarding the perceived need for an evidentiary hearing. Because we disagree
with Ms. O'Dell's position, her argument regarding fees is rejected as well.
APPELLATE ATTORNEY FEES
Mr. Valente asks this court to award attorney fees, citing to RCW 11.96A.150,
which permits us to award attorney fees "in such amount and in such manner as the court
determines to be equitable." We respectfully decline this request. While the court
appreciates Mr. Valente's assistance throughout this case, his participation on appeal was
largely a result of his own volition, in order to secure payment of the fees awarded by the
superior court. See Commissioner's Ruling, In re Guardianship ofFowler, No. 32979-8-
111 (Wash. Ct. App. Apr. 2, 2015). That goal has been accomplished. Meanwhile, at least
some equities weigh in Ms. O'Dell's favor, including the significant financial obligations
imposed by the superior court as well as the difficulties encountered by Ms. O'Dell in
working on Ms. Fowler's case. The court declines to impose further financial burdens on
Ms. O'Dell in the form of attorney fees.
7 No. 32979-8-111 In re Guardianship of Fowler
CONCLUSION
The orders of the superior court are affirmed, and Mr. Valente's request for
appellate fees is denied.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
(..,_,,_,_<"- \Sw.,, 1 , P. c3. 5-;~LUf!e, ~ Lawrence-Berrey, A.CJ./ Siddoway, J.