FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 25, 2024
In the Court of Appeals of Georgia A24A0847. IN RE: SUZANNE PEAVY WALBERT, PROPOSED WARD.
MCFADDEN, Presiding Judge.
This case involves competing petitions for appointment of a guardian and
conservator filed by the children of proposed ward Suzanne Walbert. Catherine Peek,
Walbert’s daughter, and Peek’s husband filed a petition in probate court seeking the
appointment of a neutral guardian and conservator for Walbert. Loryn Walker and
Robert Holly, Walbert’s daughter and son, filed a separate petition seeking to have
themselves appointed as Walbert’s guardians and conservators. After a hearing on the
competing petitions and caveats thereto, the probate court entered an order
appointing a neutral guardian and a neutral conservator for Walbert. Walker and Holly appeal, claiming that the probate court made findings of fact
based on evidence that was not presented at the final hearing; but they have failed to
identify any such findings in the court’s final order. The appellants further assert that
the probate court’s final order does not include required findings to support the grant
of certain powers to the guardian; but they have not shown that such findings were
required to be set forth in the order and the court is presumed to know the law.
Finally, Walker and Holly claim that the probate court erred in denying their motion
to disqualify Walbert’s appointed attorney; but they have shown no abuse of
discretion. So we affirm the judgment below.
1. Findings unsupported by evidence presented at the hearing
Walker and Holly claim that the probate court’s final order includes findings
of fact based on evidence that was not introduced at the final hearing. But they have
not identified any such findings in the final order. Instead, they point to statements
made by the probate court judge during the hearing, none of which were included in
the final order.
Citing case law for the proposition that a trial court cannot rely on evidence
presented at prior hearings unless the court has given the parties advance notice of
2 such evidence, see Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), the
appellants claim that at the outset of the final hearing, the judge improperly stated her
intent to rely on evidence from earlier hearings. But their claim misconstrues the
judge’s statements which simply indicated that the court was going to limit the time
for witness examinations “in an effort to achieve judicial economy on matters that
have been pre-litigated in hearings of the past.” It is unclear what previously litigated
matters the court was referring to, and the appellants have not identified any, but the
court certainly possessed the “inherent power to efficiently administer the cases upon
its docket[.]” Francis v. NR Deed, LLC, 359 Ga. App. 707, 708 (2) (858 SE2d 99)
(2021) (citation and punctuation omitted). Moreover, and contrary to the appellants’
claim, the court never stated that its time limitations on witness examinations meant
that the court would instead rely on evidence from past hearings to make findings of
fact that were unsupported by any evidence presented at the final hearing.
Walker and Holly also point to the judge’s oral statements at the end of the
hearing about a 2021 durable power of attorney showing Walbert’s intent to change
2014 and 2017 powers of attorney. But the court did not state that the 2021 document
had in fact revoked the earlier documents, instead noting that there were questions
3 about the validity of the 2021 document and “an absence of a properly executed 2021
intent[.]” Moreover, none of these statements were made in the court’s final order,
which included no such findings about the 2021 document showing an intent to revoke
the earlier documents. Indeed, the appellants acknowledge in their brief that the court
did not find in the final order that the 2021 document had revoked the earlier one. So
“even if [the statements] did amount to an oral ruling on [the matter], the written
order [omitting] such a ruling would control.” State v. Mondor, 306 Ga. 338, 351 (3)
(830 SE2d 206) (2019). “[U]ntil an oral pronouncement is memorialized, the trial
judge has broad discretion to amend, alter, or completely change [her] decision, and
any discrepancy between the oral pronouncement and the written ruling will be
resolved in favor of the written judgment.” Mondy v. Magnolia Advanced Materials,
303 Ga. 764, 772 (815 SE2d 70) (2018). Given the failure of the appellants to show that
any findings of fact in the final written order were unsupported by evidence presented
at the hearing, this claim of error provides no basis for reversal.
2. Health care directive
Walker and Holly contend that the probate court erred by failing to make
findings required by OCGA § 31-32-6 (c) before it granted authority to the guardian
4 that usurped their authority as health care agents under a 2017 health care directive.
That code section provides “that no order usurping the authority of a health care
agent known to the proposed guardian shall be entered unless . . . it is shown by clear
and convincing evidence that the health care agent is acting in a manner inconsistent
with the power of attorney.” OCGA § 31-32-6 (c). The appellants contend that the
final order must be reversed because it did not include an express finding that there
was clear and convincing evidence showing that they had acted in a manner
inconsistent with the health care directive.
Although the code section “specifies the criterion [a] court must consider in
determining whether to [enter an order usurping a health care agent’s authority], it
does not state that [such an] order . . . must include written findings of fact or
conclusions of law. We have no authority to read such a requirement into the statute.”
Royster v. State of Ga., 346 Ga. App. 333, 336 (2) (814 SE2d 455) (2018) (citation and
punctuation omitted) (involving sex offender registry statute). See also Garmon v.
State, 317 Ga. App. 634, 635 (2) (732 SE2d 289) (2012) (requirement that a trial court
consider certain factors in making a ruling does not necessarily mean that the court
must expressly articulate specific findings on those factors in its ruling); American
5 Mgmt. Svcs. East v. Fort Benning Family Communities, 313 Ga. App. 124, 128 (1) (b)
(720 SE2d 377) (2011) (statute concerning injunctions “does not require an express
finding by a trial court [showing] a particular category listed in” the statute). So
reversal is not mandated by the absence of an express declaration, as to the evidence
that the health care agent was acting in a manner inconsistent with the health care
directive, that it was clear and convincing.
Furthermore, “[t]he trial judge is presumed to know the law and presumed to
faithfully and lawfully perform the duties devolving upon [her] by law.” Infinite Energy
v. Ga. PSC, 257 Ga.
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FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 25, 2024
In the Court of Appeals of Georgia A24A0847. IN RE: SUZANNE PEAVY WALBERT, PROPOSED WARD.
MCFADDEN, Presiding Judge.
This case involves competing petitions for appointment of a guardian and
conservator filed by the children of proposed ward Suzanne Walbert. Catherine Peek,
Walbert’s daughter, and Peek’s husband filed a petition in probate court seeking the
appointment of a neutral guardian and conservator for Walbert. Loryn Walker and
Robert Holly, Walbert’s daughter and son, filed a separate petition seeking to have
themselves appointed as Walbert’s guardians and conservators. After a hearing on the
competing petitions and caveats thereto, the probate court entered an order
appointing a neutral guardian and a neutral conservator for Walbert. Walker and Holly appeal, claiming that the probate court made findings of fact
based on evidence that was not presented at the final hearing; but they have failed to
identify any such findings in the court’s final order. The appellants further assert that
the probate court’s final order does not include required findings to support the grant
of certain powers to the guardian; but they have not shown that such findings were
required to be set forth in the order and the court is presumed to know the law.
Finally, Walker and Holly claim that the probate court erred in denying their motion
to disqualify Walbert’s appointed attorney; but they have shown no abuse of
discretion. So we affirm the judgment below.
1. Findings unsupported by evidence presented at the hearing
Walker and Holly claim that the probate court’s final order includes findings
of fact based on evidence that was not introduced at the final hearing. But they have
not identified any such findings in the final order. Instead, they point to statements
made by the probate court judge during the hearing, none of which were included in
the final order.
Citing case law for the proposition that a trial court cannot rely on evidence
presented at prior hearings unless the court has given the parties advance notice of
2 such evidence, see Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), the
appellants claim that at the outset of the final hearing, the judge improperly stated her
intent to rely on evidence from earlier hearings. But their claim misconstrues the
judge’s statements which simply indicated that the court was going to limit the time
for witness examinations “in an effort to achieve judicial economy on matters that
have been pre-litigated in hearings of the past.” It is unclear what previously litigated
matters the court was referring to, and the appellants have not identified any, but the
court certainly possessed the “inherent power to efficiently administer the cases upon
its docket[.]” Francis v. NR Deed, LLC, 359 Ga. App. 707, 708 (2) (858 SE2d 99)
(2021) (citation and punctuation omitted). Moreover, and contrary to the appellants’
claim, the court never stated that its time limitations on witness examinations meant
that the court would instead rely on evidence from past hearings to make findings of
fact that were unsupported by any evidence presented at the final hearing.
Walker and Holly also point to the judge’s oral statements at the end of the
hearing about a 2021 durable power of attorney showing Walbert’s intent to change
2014 and 2017 powers of attorney. But the court did not state that the 2021 document
had in fact revoked the earlier documents, instead noting that there were questions
3 about the validity of the 2021 document and “an absence of a properly executed 2021
intent[.]” Moreover, none of these statements were made in the court’s final order,
which included no such findings about the 2021 document showing an intent to revoke
the earlier documents. Indeed, the appellants acknowledge in their brief that the court
did not find in the final order that the 2021 document had revoked the earlier one. So
“even if [the statements] did amount to an oral ruling on [the matter], the written
order [omitting] such a ruling would control.” State v. Mondor, 306 Ga. 338, 351 (3)
(830 SE2d 206) (2019). “[U]ntil an oral pronouncement is memorialized, the trial
judge has broad discretion to amend, alter, or completely change [her] decision, and
any discrepancy between the oral pronouncement and the written ruling will be
resolved in favor of the written judgment.” Mondy v. Magnolia Advanced Materials,
303 Ga. 764, 772 (815 SE2d 70) (2018). Given the failure of the appellants to show that
any findings of fact in the final written order were unsupported by evidence presented
at the hearing, this claim of error provides no basis for reversal.
2. Health care directive
Walker and Holly contend that the probate court erred by failing to make
findings required by OCGA § 31-32-6 (c) before it granted authority to the guardian
4 that usurped their authority as health care agents under a 2017 health care directive.
That code section provides “that no order usurping the authority of a health care
agent known to the proposed guardian shall be entered unless . . . it is shown by clear
and convincing evidence that the health care agent is acting in a manner inconsistent
with the power of attorney.” OCGA § 31-32-6 (c). The appellants contend that the
final order must be reversed because it did not include an express finding that there
was clear and convincing evidence showing that they had acted in a manner
inconsistent with the health care directive.
Although the code section “specifies the criterion [a] court must consider in
determining whether to [enter an order usurping a health care agent’s authority], it
does not state that [such an] order . . . must include written findings of fact or
conclusions of law. We have no authority to read such a requirement into the statute.”
Royster v. State of Ga., 346 Ga. App. 333, 336 (2) (814 SE2d 455) (2018) (citation and
punctuation omitted) (involving sex offender registry statute). See also Garmon v.
State, 317 Ga. App. 634, 635 (2) (732 SE2d 289) (2012) (requirement that a trial court
consider certain factors in making a ruling does not necessarily mean that the court
must expressly articulate specific findings on those factors in its ruling); American
5 Mgmt. Svcs. East v. Fort Benning Family Communities, 313 Ga. App. 124, 128 (1) (b)
(720 SE2d 377) (2011) (statute concerning injunctions “does not require an express
finding by a trial court [showing] a particular category listed in” the statute). So
reversal is not mandated by the absence of an express declaration, as to the evidence
that the health care agent was acting in a manner inconsistent with the health care
directive, that it was clear and convincing.
Furthermore, “[t]he trial judge is presumed to know the law and presumed to
faithfully and lawfully perform the duties devolving upon [her] by law.” Infinite Energy
v. Ga. PSC, 257 Ga. App. 757, 759 (1) (572 SE2d 91) (2001) (citation and punctuation
omitted). So despite the lack of an express finding in the order, there is no reversible
error since the probate court is presumed to know and follow the law. See In the
Interest of A. L. L., 211 Ga. App. 767, 770 (5) (440 SE2d 517) (1994) (even though trial
court’s order failed to state the applicable clear and convincing standard, there is no
reversible error because the court is presumed to know the law).
3. Motion to disqualify
6 Walker and Holly complain that the probate court erred in denying their motion
to disqualify Walbert’s appointed counsel because counsel failed to represent
Walbert’s desires and instead improperly acted as a guardian ad litem by
recommending that appointment of a neutral guardian was in Walbert’s best interests.
The appellants cite OCGA § 29-9-2 (b), which provides that “[a] person who is
appointed as counsel for a ward, proposed ward, or alleged incapacitated person is not
eligible to be appointed as guardian ad litem for the same individual[.]”
As an initial matter, it is undisputed that counsel was not also appointed as
guardian ad litem for Walbert, and instead a separate person was appointed to that
role. As for the contention that counsel failed to advocate for Walbert and instead
usurped the role of the guardian ad litem, we find no reversible error. Counsel stated
in her place to the court that she had consulted with Walbert and had advocated only
pursuant to Walbert’s instructions and desires. As counsel explained: “[M]y role did
not change from attorney to guardian ad litem just because I said something was in my
client’s best interest. . . . I’ve been zealously advocating for what I believe my client[]
and I have discussed and what I think she would like for me to do, based on all I
know.”
7 The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. This [c]ourt will not interfere with a trial court’s ruling absent abuse of that discretion. In ruling on a motion to disqualify counsel, the trial court sits as the trier of fact, resolving conflicts in the evidence and assessing witness credibility.
Samnick v. Goodman, 354 Ga. App. 805, 806 (841 SE2d 468) (2020) (citations and
punctuation omitted). See also Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d
775) (2005) (disqualification of counsel is an extraordinary remedy and should be
granted sparingly).
Here, in denying the motion to disqualify, the probate court was authorized to
find counsel’s statements credible and to conclude that counsel was advocating for her
client’s wishes and that disqualification would be a substantial hardship. “Courts
should approach motions to disqualify with caution due to the consequences that
could result if the motion is granted, such as the inevitable delay of the proceedings
and the unique hardship on the client including the loss of time, money, . . . and
specialized knowledge of the disqualified attorney.” Reid v. Samsung SDI Co., 366 Ga.
App. 570, 574 (883 SE2d 584) (2023) (citation and punctuation omitted). We thus
find no abuse of discretion and “affirm the denial of [the] motion to disqualify . . .
[c]ounsel, because there [has been no showing of an] actual conflict of interest or
8 actual impropriety.” Kamara v. Henson, 340 Ga. App. 111, 116 (2) (796 SE2d 496)
(2017).
Judgment affirmed. Mercier, C. J., and Rickman, J., concur.