HENDERSON, Justice
(on reassignment).
PROCEDURAL HISTORY/ISSUES
Harlan Jacobsen (Harlan) commenced this proceeding by filing a Petition for Guardianship over the Person and Estate of Jennie Jacobsen on July 24, 1989.
Virginia Solberg (Virginia) also filed a Petition for Appointment of Guardianship on November 7, 1989, asking the court to appoint her and an independent third party as co-guardians of the person and estate of Jennie Jacobsen.
On December 4, 1989, Harlan moved to amend his Petition, requesting that the [635]*635court appoint Harlan and an independent third party as co-guardians of the person and estate of Jennie Jacobsen. A trial was subsequently held concerning this matter. Motions were then filed by Virginia and Harlan for attorney’s fees and a hearing was held on February 6, 1990.
On February 13, 1990, the trial court entered its Findings of Fact and Conclusions of Law. Virginia was designated Guardian of the person and First Dakota National Bank of Yankton, South Dakota (Bank) was designated Guardian of the Estate of Jacobsen. Both Harlan and Virginia were denied attorney’s fees on April 4, 1990. On appeal, Harlan presents two issues:
(1) Was the appointment of Virginia as guardian of the person, and Bank as guardian of the estate of Jennie Jacobsen, an abuse of the trial court’s discretion?
(2) Should Harlan have been awarded reimbursement of attorney’s fees and expenses from the Jennie Jacobsen estate?
Bank also appeals the appointment of Virginia as Guardian over the Person of Jennie Jacobsen. Appeal No. 17112.
We affirm in part, reverse in part and remand.
FACTS
Jennie Jacobsen (Jennie) was born on August 30, 1896. She is legally blind and suffers from arthritis. Jennie also suffers from cerebral arteriosclerosis, making her forgetful and confused.
Jennie was married to Alfred Jacobsen (Alfred) who died on January 5, 1978. They had three children; Virginia, Harlan and Marlow Jacobsen. At the time of her husband’s death, Jennie was living on the family farm in Yankton County. During this time, the entire family agreed that it would be in Jennie’s best interests for a family member to move in with her. Kevin Solberg, Virginia’s son, assumed this duty from 1979 to 1981, when he left to start college. At that time, in 1981, Jennie moved in with Virginia and her husband. She has lived there ever since.
Due to her declining health, it became increasingly difficult for Jennie to carry on her daily affairs. Therefore, in 1979, while still mentally alert, Jennie executed a Power of Attorney naming Virginia her Attorney in Fact. Virginia understood that her only responsibility as Attorney in Fact was to assist her mother, not to manage her assets.
The trial court determined that the best interests of Jennie would be served by appointing Virginia as guardian. The trial court based this decision on the fact that Jennie had been living with Virginia and her husband for the past ten years and maintains a loving relationship with them. This helped the trial court to determine that Virginia and her husband provide Jennie with constant supervision and a comfortable environment. On the other hand, the trial court found that Harlan has shown no interest in his mother or the management of her affairs prior to 1989. Further, the trial court made no findings as to waste or mismanagement of estate assets.
However, the record belies this decision by the trial court. A review of the record clearly reveals Virginia’s admitted financial indiscretions and improper self-dealing. The following are but a few examples:
(1) Using Jennie’s money, she made an unsecured, unmemorialized $23,000 loan to her son Kevin for the purchase of a tractor, knowing Kevin was insolvent and jailed for writing bad checks.
(2) Virginia and her husband, Ray, for many years leased Jennie’s property for $6,000 per year but never paid any money to Jennie. When asked why no payments were made, Virginia said “We are keeping that as an insurance policy that we get paid for taking care of her.” ... “We just knock off $6,000 off whatever she owes us for staying with us.” When asked what Jennie owes them for staying with them, Virginia said “We haven’t decided that yet.”
(3) Virginia took $10,000 out of her mother’s bank accounts in 1986 and 1987 to “partially reimburse” them for her care. This was done at the same time she was [636]*636withholding the cash lease payments referred to in (2), supra.
(4) In 1978, Virginia borrowed $24,000 from Jennie, without a note or collateral, to enable her and her husband to purchase forty acres of farmland. Those funds apparently have not been repaid.
(5) Virginia failed to explain how nine years’ of social security income to Jennie did not accumulate into any type of savings, especially considering that the living expenses were minimal.
(6) Virginia failed to account for farm expenses paid from Jennie’s bank accounts on Yankton County farming operations.
(7) Virginia permitted her son Kevin to use Jennie’s machinery without compensation. She permitted Kevin to live on the Yankton County farm property rent free and, at the same time, actually paid Kevin’s utility bills with Jennie’s money.
(8) While knowing that her son Kevin did not have good farming skills or abilities or any capital of his own, Virginia “leased” (apparently on a share-crop basis) Jennie’s property to Kevin in preference to another farmer who had such skills and capital.
(9) Despite his horrendous farming practices, Virginia continued to “lease” the Yankton County property to Kevin.
(10) Virginia failed to demand rent and to market crops and thus permitted a bank to levy on Jennie’s crops. Additionally, she failed to take legal action to pursue Jennie’s share of government program payments and crops that the bank arguably converted.
(11) Virginia used Jennie’s money for the purchase of machinery by her husband Ray and son Kevin. One piece of equipment, a combine, was destroyed by fire and no insurance had been purchased for it.
(12) Virginia failed to make a reasonable accounting of Jennie’s monies since she has become incompetent.
(13)Virginia executed forms with the ASCS office by which her mother relinquished any claim to government program payments and permitted them to be paid to her husband Ray, even though there had been no payment of rent to Jennie for the eight prior years. The government program payments that Ray received on the land exceeded $5,500.
DECISION
I. We hold that the evidence establishes that the trial court clearly abused its discretion in appointing Virginia Solberg as guardian of the person. However, the appointment of the Bank as guardian of the estate of Jacobsen was not an abuse of the trial court’s discretion.
Subject to statutory restrictions, the selection of the person to be appointed guardian is a matter which is committed largely to the discretion of the appointing court.1 30 Am.Jur.2d, Guardian and Ward, § 27 page 29 (1968).
Free access — add to your briefcase to read the full text and ask questions with AI
HENDERSON, Justice
(on reassignment).
PROCEDURAL HISTORY/ISSUES
Harlan Jacobsen (Harlan) commenced this proceeding by filing a Petition for Guardianship over the Person and Estate of Jennie Jacobsen on July 24, 1989.
Virginia Solberg (Virginia) also filed a Petition for Appointment of Guardianship on November 7, 1989, asking the court to appoint her and an independent third party as co-guardians of the person and estate of Jennie Jacobsen.
On December 4, 1989, Harlan moved to amend his Petition, requesting that the [635]*635court appoint Harlan and an independent third party as co-guardians of the person and estate of Jennie Jacobsen. A trial was subsequently held concerning this matter. Motions were then filed by Virginia and Harlan for attorney’s fees and a hearing was held on February 6, 1990.
On February 13, 1990, the trial court entered its Findings of Fact and Conclusions of Law. Virginia was designated Guardian of the person and First Dakota National Bank of Yankton, South Dakota (Bank) was designated Guardian of the Estate of Jacobsen. Both Harlan and Virginia were denied attorney’s fees on April 4, 1990. On appeal, Harlan presents two issues:
(1) Was the appointment of Virginia as guardian of the person, and Bank as guardian of the estate of Jennie Jacobsen, an abuse of the trial court’s discretion?
(2) Should Harlan have been awarded reimbursement of attorney’s fees and expenses from the Jennie Jacobsen estate?
Bank also appeals the appointment of Virginia as Guardian over the Person of Jennie Jacobsen. Appeal No. 17112.
We affirm in part, reverse in part and remand.
FACTS
Jennie Jacobsen (Jennie) was born on August 30, 1896. She is legally blind and suffers from arthritis. Jennie also suffers from cerebral arteriosclerosis, making her forgetful and confused.
Jennie was married to Alfred Jacobsen (Alfred) who died on January 5, 1978. They had three children; Virginia, Harlan and Marlow Jacobsen. At the time of her husband’s death, Jennie was living on the family farm in Yankton County. During this time, the entire family agreed that it would be in Jennie’s best interests for a family member to move in with her. Kevin Solberg, Virginia’s son, assumed this duty from 1979 to 1981, when he left to start college. At that time, in 1981, Jennie moved in with Virginia and her husband. She has lived there ever since.
Due to her declining health, it became increasingly difficult for Jennie to carry on her daily affairs. Therefore, in 1979, while still mentally alert, Jennie executed a Power of Attorney naming Virginia her Attorney in Fact. Virginia understood that her only responsibility as Attorney in Fact was to assist her mother, not to manage her assets.
The trial court determined that the best interests of Jennie would be served by appointing Virginia as guardian. The trial court based this decision on the fact that Jennie had been living with Virginia and her husband for the past ten years and maintains a loving relationship with them. This helped the trial court to determine that Virginia and her husband provide Jennie with constant supervision and a comfortable environment. On the other hand, the trial court found that Harlan has shown no interest in his mother or the management of her affairs prior to 1989. Further, the trial court made no findings as to waste or mismanagement of estate assets.
However, the record belies this decision by the trial court. A review of the record clearly reveals Virginia’s admitted financial indiscretions and improper self-dealing. The following are but a few examples:
(1) Using Jennie’s money, she made an unsecured, unmemorialized $23,000 loan to her son Kevin for the purchase of a tractor, knowing Kevin was insolvent and jailed for writing bad checks.
(2) Virginia and her husband, Ray, for many years leased Jennie’s property for $6,000 per year but never paid any money to Jennie. When asked why no payments were made, Virginia said “We are keeping that as an insurance policy that we get paid for taking care of her.” ... “We just knock off $6,000 off whatever she owes us for staying with us.” When asked what Jennie owes them for staying with them, Virginia said “We haven’t decided that yet.”
(3) Virginia took $10,000 out of her mother’s bank accounts in 1986 and 1987 to “partially reimburse” them for her care. This was done at the same time she was [636]*636withholding the cash lease payments referred to in (2), supra.
(4) In 1978, Virginia borrowed $24,000 from Jennie, without a note or collateral, to enable her and her husband to purchase forty acres of farmland. Those funds apparently have not been repaid.
(5) Virginia failed to explain how nine years’ of social security income to Jennie did not accumulate into any type of savings, especially considering that the living expenses were minimal.
(6) Virginia failed to account for farm expenses paid from Jennie’s bank accounts on Yankton County farming operations.
(7) Virginia permitted her son Kevin to use Jennie’s machinery without compensation. She permitted Kevin to live on the Yankton County farm property rent free and, at the same time, actually paid Kevin’s utility bills with Jennie’s money.
(8) While knowing that her son Kevin did not have good farming skills or abilities or any capital of his own, Virginia “leased” (apparently on a share-crop basis) Jennie’s property to Kevin in preference to another farmer who had such skills and capital.
(9) Despite his horrendous farming practices, Virginia continued to “lease” the Yankton County property to Kevin.
(10) Virginia failed to demand rent and to market crops and thus permitted a bank to levy on Jennie’s crops. Additionally, she failed to take legal action to pursue Jennie’s share of government program payments and crops that the bank arguably converted.
(11) Virginia used Jennie’s money for the purchase of machinery by her husband Ray and son Kevin. One piece of equipment, a combine, was destroyed by fire and no insurance had been purchased for it.
(12) Virginia failed to make a reasonable accounting of Jennie’s monies since she has become incompetent.
(13)Virginia executed forms with the ASCS office by which her mother relinquished any claim to government program payments and permitted them to be paid to her husband Ray, even though there had been no payment of rent to Jennie for the eight prior years. The government program payments that Ray received on the land exceeded $5,500.
DECISION
I. We hold that the evidence establishes that the trial court clearly abused its discretion in appointing Virginia Solberg as guardian of the person. However, the appointment of the Bank as guardian of the estate of Jacobsen was not an abuse of the trial court’s discretion.
Subject to statutory restrictions, the selection of the person to be appointed guardian is a matter which is committed largely to the discretion of the appointing court.1 30 Am.Jur.2d, Guardian and Ward, § 27 page 29 (1968). Therefore, the standard of review on appeal for this case is: Did the trial court abuse its discretion in appointing Virginia guardian over the person of Jennie or by appointing the Bank guardian over the estate of Jennie? The term “abuse of discretion” refers to a discretion exercised to an end or purpose not justified by and clearly against reason and evidence. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). Only a “clear” abuse of discretion warrants reversal. Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982). We find that, considering the totality of the circumstances, the trial court clearly abused its discretion.
Harlan asserts the trial court abused its discretion by appointing Virginia as the guardian of their mother. The thrust of his argument is that Virginia has mishandled Jennie’s assets over the past [637]*637five years in her capacity as Attorney in Fact, exemplified by what we have outlined above. He believes this behavior is grounds for reversal. However, the trial court failed to make findings relating to Harlan’s theory, stating it “makes no finding as to waste or mismanagement of estate assets.” Essentially, Harlan is asking this Court to find the facts in this case. Ordinarily, the request for review would not properly be before this Court. Findings on waste or mismanagement of the estate are necessary to permit meaningful appellate review.
Generally, no question is presented for appellate review by the refusal of the trial court to find incidental or evidentiary facts. However, this Court can review where the trial court has failed to find ultimate facts as to evidence which is un-controverted and the inferences are all only one way. Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961); Post v. Hartford St. R. Co., 72 Conn. 362, 44 A. 547 (1899); Coonrod & Walz Const. Co., Inc. v. Motel Enterprises, Inc., 217 Kan. 63, 535 P.2d 971 (1975); Bedlow v. New York Floating Dry-Dock Co., 112 N.Y. 263, 19 N.E. 800 (1889), 2 L.R.A. 629; State v. Mullin, 66 Wash.2d 255, 401 P.2d 991 (1965); 5A C.J.S. Appeal & Error § 1675 (1958). This case is proper for such review due to the overwhelming and uncontroverted evidence present in the record. Review of the record evidence clearly indicates that Virginia Solberg has consistently misappropriated money and property of the ward, Jennie Jacobsen. This evidence militates against an appointment of Virginia Solberg as Guardian of the Person of Jennie Jacobsen.
Considering the totality of the circumstances, the trial court abused its discretion and should have appointed a non-family member as guardian of the person as well as the estate of Jennie. See, generally, regarding abuse of discretion, Gross v. Gross, 355 N.W.2d 4 (S.D.1984); Rykhus v. Rykhus, 319 N.W.2d 167, 170 (S.D.1982); Herndon, 305 N.W.2d at 917; Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961); Root v. Bingham, 26 S.D. 118, 120, 128 N.W. 132, 133 (1910); see also, Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966); Slagle & Co. v. Bushnell, 70 S.D. 250, 16 N.W.2d 914 (1944). This will restrict family animosity. We reverse the decision of the trial court appointing Virginia Guardian of the Person of Jennie.
Harlan also argues briefly that the appointment of the Bank as guardian of the estate of Jennie Jacobsen was an abuse of discretion. We disagree. We believe that appointing a financial institution to professionally manage a rather wealthy estate is not clearly against reason and evidence. There is no evidence in the record to show that the Bank was incompetent to act as guardian of her estate. The Bank would be, and should be, an impartial, independent thinking entity. Therefore, we hold that the trial court did not abuse its discretion in appointing the Bank as guardian over the estate of Jennie.
II. The trial court properly denied Harlan reimbursement of attorney’s fees and expenses from the Jennie Jacobsen estate.
Under South Dakota law, attorney’s fees are allowed in actions only when specifically provided by statute according to SDCL 15-17-7 which reads:
The court may allow attorneys’ fees as costs for or against any party to an action only in the cases if it is specifically provided by statute....
We are unable to find any precise authority allowing attorney’s fees to petitioners in guardianship proceedings. However, attorney’s fees in guardianship proceedings may be authorized pursuant to SDCL 30-26-32 vis-a-vis SDCL 30-25-6.3 Under SDCL 30-25-6, fees are awarded as a necessary expense for the care and management of the [638]*638estate. However, before an award will be made, a two-prong test must be met: (1) the services rendered must be beneficial to the estate, and (2) the services were necessary because of laches, negligence, fraud or failure to defend an interest of the estate, by the personal representative of the estate. Matter of Hadleigh D. Hyde Trust, 458 N.W.2d 802 (S.D.1990); Matter of Estate of Hafferman, 442 N.W.2d 238 (S.D.1989).
At this time, we are unable to award attorney’s fees to Harlan because he did not undertake the care and management of the estate. Absent this criteria, we are of the opinion that the trial court properly denied Harlan’s request.
Appeal No. 17112
By separate appeal, the Bank also challenges the appointment of Virginia as the guardian over the person of Jennie. It argues that the trial court abused its discretion in refusing to appoint an independent, non-family member as guardian. The Bank believes, and vigorously asserts, that Virginia has committed serious breaches of her fiduciary duty in past management over Jennie’s estate. This includes allegations of mismanagement and misappropriation of Jennie’s money. It also believes that Virginia’s appointment will create hostility within the family.
Due to our determination on the merits, heretofore under paragraph one of our decision, Bank’s appeal is, essentially, mooted.
Affirmed in part, reversed in part and remanded for purposes of proper appointment of a Guardian of the Person of Jennie Jacobsen.
MILLER, C.J., and HERTZ, Acting J., concur.
SABERS, J., concurs specially.
WUEST, J., concurs in part and dissents in part.
AMUNDSON, J., not having been a member of the Court at the time this case was considered, did not participate.