Sears v. Hampton

143 So. 3d 151, 2013 WL 6150787, 2013 Ala. LEXIS 165
CourtSupreme Court of Alabama
DecidedNovember 22, 2013
Docket1120578
StatusPublished
Cited by3 cases

This text of 143 So. 3d 151 (Sears v. Hampton) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sears v. Hampton, 143 So. 3d 151, 2013 WL 6150787, 2013 Ala. LEXIS 165 (Ala. 2013).

Opinions

BOLIN, Justice.

This appeal involves the transfer of a guardianship and conservatorship pursuant to § 26-2B-302, Ala.Code 1975.

Facts and Procedural History

On July 14, 2010, the State of Kentucky entered an order finding that 74-year-old Shirley Day was in need of a guardian and a conservator. The Kentucky court appointed her adult daughter, Rhonda S. Sears, to serve in both capacities.1 Subsequently, Sears applied to the Kentucky court to transfer the guardianship and con-servatorship to Alabama, where she and Day were residing, and on January 11, 2012, the Kentucky court issued a provisional order transferring the guardianship and conservatorship.

On April 25, 2012, Sears, pursuant to the Alabama Uniform Adult Guardianship and [153]*153Protective Proceedings Jurisdiction Act, § 26-2B-101 et seq., Ala.Code 1975 (“the Act”), applied to the Montgomery Probate Court for a provisional order accepting the transfer from Kentucky of the guardianship and conservatorship. In accordance with § 26-2B-302, Sears sought to continue as conservator and guardian. Pursuant to § 26-2B-802(b), Sears was to provide notice of the transfer to the persons required to have notice.2

On May 8, 2012, the Montgomery Probate Court set a hearing for June 15, 2012, on Sears’s petition to accept the transfer. That same day, the probate judge appointed Valerie Cain as a guardian ad litem to represent Day in the transfer proceeding. On June 8, 2012, Cain requested a continuance of the hearing, which the probate court granted. Sears’s attorney also sought a continuance, which the probate court granted. On September 14, 2012, Cain submitted a report to the probate court questioning expenditures from Day’s estate and requesting a $4,110 guardian ad litem fee. Although nothing in the report indicated any inappropriate actions regarding Sears’s actions in caring for Day, Cain recommended that both the conserva-torship and the guardianship be transferred but that, rather than Sears, “the [Montgomery] county guardian and conservator be appointed.” On September 17, 2012, the probate court held a hearing, and on September 20, 2012, it granted the petition to transfer and appointed James F. Hampton as guardian of Day and conservator of Day’s estate. Day was removed from Sears’s home and placed in an apartment home. The probate court also approved Cain’s guardian ad litem fee to be paid from Day’s estate.

On October 30, 2012, Sears timely filed a notice of appeal from the probate court’s order in the Montgomery Circuit Court on the ground that the probate court’s order violated § 26-2B-302. On November 9, 2012, Sears filed a motion entitled “Motion For Injunctive Relief’ in which she asked the circuit court to enter an order in compliance with § 26-2B-302. On November 13, 2012, Hampton requested that the circuit court appoint Cain as Day’s guardian while he remain as conservator of her es[154]*154tate. On November 21, 2012, the circuit court held a hearing on Sears’s November 9, 2012, motion, at the end of which the court denied Sears’s requested relief and set the matter for further proceedings. On December 19, 2012, the circuit court appointed Cain as Day’s guardian. On January 9, 2013, the circuit court entered a written order denying Sears’s November 9, 2012, motion. On February 19, 2013, Sears filed a notice of appeal from the circuit court’s order with this Court. On August 1, 2013, this Court’s clerk’s office entered an order in accordance with Oliver v. Shealey, 67 So.3d 73 (Ala.2011). In Oliver, this Court held that Rule 3, Ala. R.App. P., applies to circuit courts and that if an appeal from the probate court is incorrectly filed in the circuit court, then the circuit court has to return the case to the probate court for that court to take the necessary clerical steps to docket the appeal and file the record and briefs in the appropriate appellate court. Because a circuit court’s appellate jurisdiction over an order of a probate court is confined to the seven circumstances enumerated in § 12-22-21, Ala.Code 1975, and an appeal from a motion to transfer under § 26-2B-302 is not one of those circumstances, Sears’s appeal from the probate court’s order to the circuit court was improper and has now, pursuant to Rule 3, Ala. R.App. P., been filed in this Court.3 Any orders issued by the circuit court are void. See Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala.2011)(“When a circuit court lacks subject-matter jurisdiction, all orders and judgments entered in the case, except an order of dismissal, are void ab initio.”).

Standard of Review

“ ‘This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’” Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005) (quoting Scott Bridge Co. v. Wright, 883 So.2d 1221,1223 (Ala.2003)).

“When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052 (Ala.1996). “When a court construes a statute, ‘[wjords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). The function of this Court is “ ‘to say what the law is, not to say what it should be.’ ” Ex parte Achenbach, 783 So.2d 4, 7 (Ala.2000) (quoting DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998)).

Discussion

At the outset, the distinction should be made between a guardianship and a conservatorship. A guardianship concerns the control over the health, support, edu[155]*155cation, or maintenance of an incapacitated person, whereas a conservatorship is usually limited to control over the property and finances of a protected person. Here, the State of Kentucky appointed Sears as both guardian over the person and conservator of the property of Shirley Day.

In 2011, the legislature adopted the Act. Sections 26-2B-301 and -302, Ala. Code 1975, concerning transfers of existing guardianships and conservatorships from Alabama to other states and transfers of existing guardianships and conservator-ships from other states to Alabama, were meant to uniformly address problems with interstate transfers and to streamline the process in the best interests of the incapacitated adult or protected person and his or her resources. “Such a transfer is often appropriate when the incapacitated or protected person has moved or has been placed in a facility in another state, making it impossible for the original court to adequately monitor the proceeding.” Comments to § 26-2B-301. Section 26-2B-302 provides:

“(a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to Section 26-2B-301, the guardian or conservator must petition the court in this state to accept the guardianship or con-servatorship. The petition must include the following:
“(1) a certified copy of the other state’s provisional order of transfer;

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Bluebook (online)
143 So. 3d 151, 2013 WL 6150787, 2013 Ala. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-hampton-ala-2013.