In the Matter of Guardianship and Conservatorship of Vjvn

2008 ND 106, 750 N.W.2d 462, 2008 N.D. LEXIS 109, 2008 WL 2278987
CourtNorth Dakota Supreme Court
DecidedJune 5, 2008
Docket20080024
StatusPublished
Cited by4 cases

This text of 2008 ND 106 (In the Matter of Guardianship and Conservatorship of Vjvn) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Guardianship and Conservatorship of Vjvn, 2008 ND 106, 750 N.W.2d 462, 2008 N.D. LEXIS 109, 2008 WL 2278987 (N.D. 2008).

Opinion

KAPSNER, Justice.

[¶ 1] S.F. appeals an order appointing S.F. as the guardian of V.N., but denying S.F. compensation for guardianship services. We reverse and remand the order of the district court.

I

[¶ 2] V.N., the ward in this action, has four adult children: S.F., who resides in San Antonio, Texas; A.R., who resides in Minot, North Dakota; A.A.V.N., who resides in Bothell, Washington; and V.K.-R., who resides in Minot, North Dakota. V.N. also has a granddaughter, L.K., who is the daughter of V.K.-R.

[¶ 3] On July 27, 2007, S.F. made a motion for temporary guardianship and conservatorship of her mother, V.N. The district court granted the motion, appointing S.F. as V.N.’s temporary guardian and conservator. On August 20, 2007, S.F. petitioned the district court to appoint her the permanent guardian and conservator of V.N. On September 5, 2007, L.K., V.N.’s granddaughter, cross-petitioned to become the guardian and conservator of V.N. A.A.V.N. and A.R. each filed a Waiver of Notice and Nomination of Guardian, in which each nominated S.F. as guardian of V.N.

[¶ 4] On October 5, 2007, a hearing was conducted on S.F.’s petition for guardianship and conservatorship. At the hearing, L.K. withdrew her cross-petition for guardianship and conservatorship, making S.F. the only party petitioning to be appointed guardian and conservator. At the time the hearing was conducted, three of V.N.’s children, A.A.V.N., A.R., and S.F., were in favor of S.F. being nominated guardian. V.K.-R., V.N.’s fourth child, did not petition the district court nor did she attend the hearing. A guardian ad litem, a physician, and a visitor provided reports to the district court before the permanent guardianship and conservatorship appointments were ordered. The reports of the guardian ad litem and visitor noted anger and mistrust between family members, but recommended that a family member, rather than a third party, serve as V.N.’s guardian.

[¶5] On October 8, 2007, the district court issued an order granting S.F.’s petition in part, appointing S.F. as guardian and a public administrator, Mark Wester-eng, as conservator of V.N. This order provided S.F. was not entitled to any compensation for her services as V.N.’s guardian and denied her request to serve as V.N.’s conservator. The October 8, 2007, order stated:

The Court ... appoints [S.F.], daughter of [V.N.], as Guardian. [S.F.], as Guardian, shall have the powers and duties set out in accordance with § 30.1-28-12 of the NDCC. It is directed that those powers and duties be specifically delineated in the documentation giving said authority to the Guardian. The Guardian shall not be entitled to any remuneration for her duties as Guardian.

[¶ 6] On October 10, 2007, S.F. submitted a request for reconsideration and clarification in which S.F. requested the district court reconsider its appointment of Westereng as conservator, and the district court permit S.F. reasonable compensation for her services as V.N.’s guardian. In response to S.F.’s request for reconsideration and clarification, the district court issued a second order on October 24, 2007, which denied S.F.’s request to be appointed conservator and denied compensation *464 for her expenses as guardian. On October 24, the district court also received letters from V.N.’s fourth child, V.K.-R., and granddaughter, L.K., alleging S.F. should not serve as V.N.’s guardian because of alleged abuse, the potential for S.F. to commit financial misconduct, and other family problems existing in S.F.’s home in Texas. V.K.-R. and L.K. requested the district court reverse the guardianship order and return V.N. to North Dakota. The district court, noting both the guardian ad litem and visitor had expressed concerns about anger and mistrust between the family members, reaffirmed its intention to appoint Mark Westereng as conservator of V.N. and to deny S.F. compensation for services as guardian. The October 24, 2007, order stated:

The Court has, in its Order of October 8th, 2007, made the decision to allow [S.F.] the opportunity to exercise care for her mother. This decision was based upon a showing by [S.F.] at the hearing that she has a great need to give her mother a better life now. She expressed a great deal of compassion for her mother, a heartfelt concern for her mother’s well being, and an overriding necessity to meet all of her needs. This included all of the physical, emotional and psychological needs of [V.N.]. The Court was convinced by [S.F.] that you cannot place a monetary value on such an expression of concern and compassion. [S.F.] made it clear that assets and financial gain played no part in her Petition to the Court for Guardianship. The Court found [V.N.’s] well being, in the care of her daughter, [S.F.], to be an overriding concern. Accordingly, this is [S.FJ’s opportunity to put forth her expression into one of clear action for the benefit of her mother without any personal gain beyond the knowledge and satisfaction she should derive from her actions alone.
No personal remuneration is required to accomplish these actions of love and caring. This is also a Finding of Fact. Room, board and services provided by [S.F.] and at [S.FJ’s home, to include [S.FJ’s family members, shall not be recoverable as an expense to [V.NJ’s estate.

(Emphasis in original).

[¶ 7] On November 15, 2007, the district court issued an order appointing S.F. guardian and Westereng conservator of V.N. and denying S.F. compensation for services rendered or expenses paid as guardian.

[¶ 8] S.F. appeals from this order, arguing she is entitled to compensation as guardian under N.D.C.C. § 30.1-28-12(10).

II

[¶ 9] “The district court has discretionary authority regarding the management of a protected person’s estate, and the court’s decisions on those matters will only be reversed on appeal for an abuse of discretion.” Estate of Allmaras, 2007 ND 130, ¶ 12, 737 N.W.2d 612 (citation omitted). “A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law.” Id. (citation omitted). Questions of statutory interpretation and application are questions of law, which are fully reviewable on appeal. Guardianship of Shatzka, 2003 ND 147, ¶5, 669 N.W.2d 95 (citation omitted). While the record is replete with facts disputed by V.N.’s family members, the facts and allegations made by V.N.’s family are not determinative of the issue raised in this appeal. This appeal turns solely on questions of law: whether N.D.C.C. § 30.1-28-12(10) provides that the guardian of a protected person is entitled to reasonable compensation *465 for expenses incurred as guardian and whether the district court may preemptively order the guardian shall not receive compensation.

[¶ 10] When this Court interprets statutes

“[o]ur duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03.

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Related

Guardianship/Conservatorship of V.A.M.
2015 ND 247 (North Dakota Supreme Court, 2015)
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2011 ND 10 (North Dakota Supreme Court, 2011)
State v. Martin
2011 ND 6 (North Dakota Supreme Court, 2011)

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Bluebook (online)
2008 ND 106, 750 N.W.2d 462, 2008 N.D. LEXIS 109, 2008 WL 2278987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-guardianship-and-conservatorship-of-vjvn-nd-2008.