In re the Guardianship & Conservatorship of K.M.W.

777 P.2d 1274, 13 Kan. App. 2d 640, 1989 Kan. App. LEXIS 537
CourtCourt of Appeals of Kansas
DecidedJuly 28, 1989
DocketNo. 63,441
StatusPublished

This text of 777 P.2d 1274 (In re the Guardianship & Conservatorship of K.M.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Guardianship & Conservatorship of K.M.W., 777 P.2d 1274, 13 Kan. App. 2d 640, 1989 Kan. App. LEXIS 537 (kanctapp 1989).

Opinion

Lewis, J.:

Kenneth M. Carpenter appeals from an order of the district court of Sedgwick County which reduced by 50 percent the amount of attorney fees which he had previously been allowed by the district court of Shawnee County.

This litigation has its roots in a petition filed in Sedgwick County alleging that K.M.W., a resident of Sedgwick County, was a disabled person who was hospitalized in the VA hospital in Topeka and requesting appointment of a guardian and conservator for him. The petitioner, Andrea M. Ramsay, asked that she be appointed as guardian and conservator and further asked that an attorney or guardian ad litem be appointed to represent K.M.W. throughout the proceedings.

Although the record does not reflect it, the Sedgwick County District Court appointed Carpenter as the attorney or guardian ad litem for K.M.W. Carpenter filed a motion pursuant to K.S.A. 59-3016(b) asking that the place of the hearing on the petition for guardianship and conservatorship be changed from Sedgwick County to Shawnee County. His motion was duly served on all interested parties and, upon its hearing, the Sedgwick District Court changed the place of hearing on the petition to Shawnee County pursuant to K.S.A. 59-3016.

At the noticed time, the district court of Shawnee County heard the petition for the appointment of a guardian and conservator, made the necessary findings of fact, appointed Andrea M. Ramsay as guardian and conservator, allowed her a fee, taxed certain costs as court costs, and required Carpenter to petition the court for his attorney fees.

Subsequent to the Shawnee County District Court order, Carpenter filed his “Petition for Approval of Fees” with that court, [642]*642wherein he alleged he performed 6.25 hours of service in the matter and asked for a fee of $437.50. Carpenter gave no notice of the hearing on his petition for attorney fees to Ramsay or to anyone else. In due time and without notice, the Shawnee County District Court allowed Carpenter attorney fees in the amount of $437.50.

After Ramsay became aware of the award of attorney fees, she brought the matter before the district court of Sedgwick County and inquired as to whether she was authorized to pay the fee allowed by the Shawnee County court. After some deliberation, the Sedgwick County District Judge, apparently without notice to Carpenter or anyone else, decided that the attorney fees allowed were excessive; he cut them in half, and authorized Ramsay to pay Carpenter $218.75.

Carpenter, upon discovering that his fees had been cut in half, filed a “Petition to Compel Payment of Attorney’s Fees” in Sedgwick County. This petition cited the Shawnee County court action and asked that the guardian and conservator be compelled to pay the remaining $218.75 of the attorney fees allowed by the Shawnee County court. In February 1989, Judge Helsel, of the Sedgwick County District Court, heard the petition to compel filed by Carpenter, denied it, and ordered that no further attorney fees be paid to Carpenter for his services in the matter. This appeal followed to determine whether Carpenter is entitled to the additional $218.75.

We first note that the issue presented on this appeal is rather narrow. The only issue briefed and presented to this court is whether the court-appointed guardian and conservator should be compelled to pay the attorney fees ordered by the Shawnee County District Court. We are not asked to determine if the requested fees are reasonable, whether the Shawnee County District Court abused its discretion in allowing the fees in the first place, or whether the Sedgwick County District Court abused its discretion in concluding the fees allowed were excessive.

While we are aware of the narrowness of the issue before us, we pause to note that an expenditure of 6.25 hours in preparing for and representing an individual in a guardianship and conservatorship action does not appear to be at all excessive, nor does the hourly rate charged shock our conscience. With these [643]*643comments, we offer nothing further concerning the propriety of the legal fees involved and proceed to decide the issues presented on this appeal.

After a review of the matter, we have concluded that the guardian and conservator cannot be compelled to obey an order allowing attorney fees under the circumstances presented. We have no choice but to affirm the decision of the Sedgwick County District Court to that effect.

The proceedings which give rise to this dispute are guardianship and conservatorship proceedings which are governed by chapter 59 of the Kansas Statutes Annotated. We first note that, pursuant to K.S.A. 59-2203, the specific venue statute of application in this case, venue for guardianship proceedings may be had in the county of the residence of the proposed ward, or in the county where he may be found. On the other hand, venue for conservatorship proceedings is limited to the county in which the proposed ward resides.

Further, K.S.A. 1988 Supp. 59-3009, which is a procedural statute as opposed to one specifically dealing with venue, makes the same distinction as to where an action for guardianship may be filed as compared to one for conservatorship:

“Any person may file in the district court of the county of the residence or presence of the proposed ward a verified petition for the appointment of a guardian. Any person may file in the district court of the county of the residence of the proposed conservatee a verified petition for the appointment of a conservator.”

It is obvious in an action dealing strictly with guardianship that it is proper either in the county of residence of the proposed ward or in the county where the proposed ward may be found. However, in the case of an action for the appointment of a conservator, the only proper venue for a conservatee who is a resident of this state is the county in which that proposed conservatee resides regardless of where he may be physically located. In the case now before this court, the action was brought for the appointment of both a guardian and a conservator. Since the conservator action could only be filed in Sedgwick County, it follows that the proper venue in this case was in Sedgwick County.

Although procedures exist in probate court to transfer venue in certain cases (see K.S.A. 59-3017), this is not what was done in the case at bar. The change of place of hearing only from one [644]*644county to another is accomplished under K.S.A. 59-3016, which reads as follows:

“After the petition provided for in K.S.A. 59-3009 or 59-3027, and amendments to these sections, is filed, the district court may at any time, on its own motion or upon the written request of any person, change the place of hearing on such petition:

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Related

Osment v. Trout
131 P.2d 640 (Supreme Court of Kansas, 1942)

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Bluebook (online)
777 P.2d 1274, 13 Kan. App. 2d 640, 1989 Kan. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-conservatorship-of-kmw-kanctapp-1989.