Marsh v. Marsh-Letts

566 N.W.2d 783, 5 Neb. Ct. App. 899, 1997 Neb. App. LEXIS 107
CourtNebraska Court of Appeals
DecidedJuly 15, 1997
DocketNo. A-96-1050
StatusPublished
Cited by12 cases

This text of 566 N.W.2d 783 (Marsh v. Marsh-Letts) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marsh v. Marsh-Letts, 566 N.W.2d 783, 5 Neb. Ct. App. 899, 1997 Neb. App. LEXIS 107 (Neb. Ct. App. 1997).

Opinion

Mues, Judge.

INTRODUCTION

Glennda Susan Marsh-Letts, daughter of a protected person, Lucille Marsh, appeals from an order of the county court granting Lucille’s petition to remove Ronald Schwab as her conservator and further appointing a successor conservator. On appeal, Glennda asserts that the county court erred in finding good cause to remove Schwab and further that she received no notice of the proceedings.

STATEMENT OF CASE

On October 3, 1994, Schwab was appointed conservator for Lucille in an action initiated by Glennda. During the appointment proceedings, Glennda was represented by attorney Joseph Casson. On June 9, 1995, Lucille filed an application for appointment of conservator in which she nominated Melvin W. Broman to be her permanent conservator. A copy of this application was served on Casson, who thereafter appeared at all subsequent proceedings and filed all pleadings as attorney of record for Schwab.

On February 15, 1996, following several demurrers, an amended petition to terminate conservatorship or to remove the [901]*901existing conservator and nominate an alternate conservator was filed. Schwab filed an answer, and the matter came on for hearing on September 16. Lucille was present with her attorney, and Schwab was present with his attorney, Casson. Evidence was adduced and will be set forth below as necessary to this opinion. By order dated September 16, 1996, the court granted Lucille’s application to remove Schwab and further appointed Broman as successor conservator. Specifically, the court stated in its order:

Irreconcilable differences have arisen between Mr. Schwab and Mrs. Marsh. There is no evidence that Mr. Schwab has done anything to necessitate his removal for cause other than the fact that an extreme personality conflict exists between the two parties so that Mrs. Marsh is unwilling to function such as to allow Mr. Schwab to effectively represent her interests. She is emotionally unstable and suffering from mental deficiency such that she cannot relate to Mr. Schwab in a reasonable manner. This makes it nearly impossible for the legal relationship to continue.

It is from this order which Glennda, represented by Casson, now appeals.

ASSIGNMENTS OF ERROR

Glennda asserts that the trial court erred in (1) removing the conservator without good cause as required by Neb. Rev. Stat. § 30-2644 (Reissue 1995), (2) proceeding to trial on the amended petition to remove absent notice to all interested parties as required by Neb. Rev. Stat. § 30-2634(d) (Reissue 1995), (3) entering an order appointing a successor conservator absent notice as required by § 30-2644, and (4) entering an order appointing a successor conservator when such was not in conformity with the prayer of the amended petition.

STANDARD OF REVIEW

Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 1995), are reviewed for error on the record. In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996); In re Conservatorship of Estate of Martin, 228 Neb. 103, 421 N.W.2d [902]*902463 (1988). When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997). On questions of law, an appellate court has an obligation to reach its own conclusions independent of those reached by the lower court. In re Guardianship of Zyla, supra.

DISCUSSION

In her first assigned error, Glennda asserts that the trial court erred in removing Schwab as conservator without good cause as required by § 30-2644. That section provides in relevant part, “The court may remove a conservator for good cause, upon notice and hearing . . . .” As previously stated, the county court removed Schwab based upon its findings of “[i]rreconcilable differences” and an “extreme personality conflict” between Schwab and Lucille. In pronouncing its judgment, the court stated:

[T]he Court will change conservators but I will stress it both in writing and orally today that there is no evidence that Mr. Schwab has done anything that would necessitate his removal, other than the fact that there is a huge personality conflict.... Basically because Mr. Schwab is not willing to knuckle under to her [Lucille] and he’s trying to protect her [Lucille’s] estate, she [Lucille] doesn’t want him to do it the way he is running it.

In this appeal, Glennda contends that “[i]rreconcilable differences” and a “personality conflict” are insufficient to constitute good cause for removal of a conservator. According to Glennda, these findings by definition relate to Schwab’s inability to satisfy Lucille’s personal needs, rather than his ability to manage her property, the latter being the primary responsibility of a conservator under Nebraska law. See §§ 30-2646 and 30-2813. Stated another way, Glennda contends that removal of a conservator for causes unrelated to his or her appointed duties is error.

The term “good cause” for the purpose of removal of a conservator is not defined under the Nebraska Probate Code, nor has it been defined by case law in Nebraska. It does, however, [903]*903appear elsewhere in the Nebraska Probate Code. For example, § 30-2437 provides that an order in formal testacy proceedings may be modified or vacated for “good cause” shown. As in § 30-2644, “good cause” is not defined in § 30-2437. In defining the term for the purpose of that section, the court in DeVries v. Rix, 203 Neb. 392, 403, 279 N.W.2d 89, 95 (1979), noted:

Webster’s Third New International Dictionary defines “good cause” as “a cause or reason sufficient in law; one that is based on equity or justice or that would motivate a reasonable man under all the circumstances.” (Emphasis supplied.)
The meaning of good cause must be determined in light of all of the surrounding circumstances.

Similarly, Black’s Law Dictionary 692 (6th ed. 1990) defines “good cause” in part as follows: “It is a relative and highly abstract term, and its meaning must be determined not only by verbal context of statute in which term is employed but also by context of action and procedures involved in type of case presented.”

Thus, the meaning of “good cause” to remove a conservator necessarily requires an examination of a conservator’s purpose and duties. A conservator is defined in § 30-2209(6) as “a person who is appointed by a court to manage the estate of a protected person.” The term “estate” refers to the property of the protected person. See § 30-2209(12).

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Bluebook (online)
566 N.W.2d 783, 5 Neb. Ct. App. 899, 1997 Neb. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-marsh-letts-nebctapp-1997.