In re Guardianship of Winn

372 S.W.3d 291, 2012 WL 2453720, 2012 Tex. App. LEXIS 5207
CourtCourt of Appeals of Texas
DecidedJune 28, 2012
DocketNo. 05-10-01224-CV
StatusPublished
Cited by36 cases

This text of 372 S.W.3d 291 (In re Guardianship of Winn) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Guardianship of Winn, 372 S.W.3d 291, 2012 WL 2453720, 2012 Tex. App. LEXIS 5207 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By

Justice MURPHY.

William Winn, Jr. (Father) challenges guardianship orders appointing Kimberly N. Winn (Mother) as a permanent guardian of their adult son, William Ace Kekai-mana Winn (Ward). We affirm.

BACKGROUND

Father and Mother were involved in contentious divorce litigation in Collin County when their son reached the age of eighteen in April 2009. Mother applied to the probate court at that time for appointment as their son’s permanent guardian. In her verified application, Mother alleged Ward suffered from bipolar disorder and at times had the capacity to make “certain” decisions, but at other times he was “completely incapacitated.” She also attached to her application a letter from Arnold W. Mech, M.D., the physician treating Ward for over a year, describing Ward’s condition and treatment and opining that Ward “would benefit from a guardianship due to his intermittent incapacity.” Mother sought appointment as guardian of Ward’s person only and asked “that there be no limitation of the powers granted in the Court’s Order of Appointment.”

The constable’s return of service shows Father was served with citation, Mother’s application, and notice that he had until the Monday after the expiration of ten days from service to answer the application. Father did not file an answer or appear in the proceeding.

The trial court appointed an attorney ad litem for Ward, who filed an answer generally denying the allegations. A separate attorney for Ward filed an answer stating that Ward was “generally agreeable” to the appointment “subject to input by [Ward] as to the enumerated powers to be granted [Mother].”

A court-appointed investigator also filed a report stating he had met with Mother and Ward and had formed the opinion Ward had a good understanding of a guardianship and the role Mother would serve and that he felt the guardianship would be beneficial. The investigator stated in his report that he had spoken by telephone with Father and reported that Father did not feel Ward was incapacitated to the point of needing a guardian but felt Mother would be the most appropriate person if the fact finder determined otherwise. The probate court signed an order on July 7, 2009 appointing Mother as the Ward’s permanent guardian.

Almost three months after the appointment, Father filed a statutory bill of review, motion to set aside the guardianship order, application to restore capacity, and alternative motion to modify guardianship. Father asserted Mother was attempting to use the guardianship to enhance her position in the divorce proceeding, and he attached copies of Mother’s request to take judicial notice of adjudicative facts she had filed in the divorce proceeding following the probate court’s appointment of Mother as Ward’s permanent guardian.

[294]*294The probate court conducted a hearing on Father’s statutory bill of review and motions on March 30, 2010 and signed an order on May 7, 2010 denying Father’s requests. The probate court did not make findings of fact or conclusions of law in response to Father’s requests. Following a September 13, 2010 hearing on Father’s motion for reconsideration or for new trial, which the court denied, the court signed an October 21, 2010 nunc pro tunc guardianship order submitted by Father’s attorney, which deleted the word “total” from the court’s findings of Ward’s incapacity. Specifically, the trial court recited in the nunc pro tunc order that, after considering Father’s “Motion to Modify Order,” it had made a clerical error. The court made no other changes to the order.

DISCUSSION

Issues

Father raises eight issues in his appellate brief, contending (1) the probate court erred by ordering a guardianship “by submission (without a record)” in violation of section 644(a)(2) of the Texas Probate Code, (2) the probate court’s order granted more relief than requested in the pleadings, (3) the probate court erred by hearing Father’s request for restoration of capacity prior to hearing the statutory bill of review under probate code section 657, (4) the probate court altered the burden of proof by hearing the motion for restoration prior to the bill of review, (5) & (6) there was no evidence or insufficient evidence supporting the guardianship and finding of incapacity, (7) the evidence supported a restoration of capacity, and (8) the probate court’s “nunc pro tunc” order removing “total” from its finding of incapacity was an impermissible substantive change to the guardianship order.

Adult Guardianship

Section 677 of the probate code provides that the court “shall appoint a guardian for a person other than a minor according to the circumstances and considering the best interests of the ward.” Tex. Prob.Code Ann. § 677(a) (West 2003). Before appointing a guardian, the court “must find by clear and convincing evidence” (1) the proposed ward is an incapacitated person, (2) it is in the best interest of the ward to have the court appoint a guardian, and (3) the rights of the ward or the ward’s property will be protected by the appointment of a guardian. Id. § 684(a). An “[incapacitated person” is defined, in relevant part, as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” Id. § 601(14)(B) (West Supp.2011). The court must find by a preponderance of the evidence that the ward is totally without capacity as provided by the code, or “lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual’s property.” Id. § 684(b)(4). The court may not grant an application to create a guardianship for such an adult proposed ward if applicant fails to prove incapacity by evidence of “recurring acts or occurrences within the preceding six-month period and not by isolated instances of negligence or bad judgment.” Id. § 684(c).

Statutory Bill of Review

Under section 657 of the probate code, any “person interested, including a ward,” may file a bill of review to have the probate court correct error in any “decision, order, or judgment” rendered by the court. Id. § 657. The applicant is required to [295]*295allege and prove substantial errors1 by the trial court. McDonald v. Carroll, 783 S.W.2d 286, 288 (Tex.App.-Dallas 1989, writ denied). Error on the face of the record is not required because petitioner may prove the error on the trial. Id.

Issue One: “Submission” of Mother’s Application

In his first issue, Father contends the probate court erred by ordering a guardianship “by submission (without a record)” in violation of section 644(a)(2) of the Texas Probate Code. Section 644(a)(2) provides that an application for appointment of a guardian may not be considered by submission. Tex. Prob.Code Ann. § 644(a)(2). The term “submission” is not defined in the statute.

As a preliminary matter, Father did not plead in his bill of review that the trial court’s substantial error was the absence of a reporter’s record; rather, he asserted the error was the finding of “total” incapacity and the appointment of a guardian.

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Bluebook (online)
372 S.W.3d 291, 2012 WL 2453720, 2012 Tex. App. LEXIS 5207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guardianship-of-winn-texapp-2012.