Opinion
No. A-11-191
02-14-2012
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF ELMER JOHN LEITNER. ROGER LEITNER, APPELLEE, v. ELMER JOHN LEITNER, APPELLANT.
G. Peter Burger, of Burger & Bennett, P.C., for appellant.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the County Court for Red Willow County: ANNE PAINE, Judge. Affirmed.
G. Peter Burger, of Burger & Bennett, P.C., for appellant.
No appearance for appellee.
IRWIN, SIEVERS, and MOORE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Roger Leitner, son of Elmer John Leitner, filed a petition in the county court for Red Willow County, Nebraska, requesting that he be appointed permanent guardian and conservator for Elmer. Elmer objected to the petition. After a hearing, the county court found that Elmer was not in need of a guardian, but that he was in need of a conservator. The court appointed Roger as the conservator for Elmer. Elmer appeals from the county court's order. On appeal, he alleges that the county court erred in admitting certain evidence and in finding sufficient evidence to warrant appointment of a conservator. For the reasons set forth below, we affirm the decision of the county court. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
II. BACKGROUND
On November 17, 2010, Roger filed a petition in the county court requesting that he be appointed guardian and conservator for his 95-year-old father, Elmer. In the petition, Roger alleged that Elmer "is incapacitated in that he suffers from the effects of dementia and the appointment [of a guardian and conservator] is necessary and desirable as a means of providing continued care and supervision as [Elmer] lacks sufficient ability to make and communicate responsible decisions" in certain areas of his life. Roger also alleged that an emergency existed warranting the appointment of a temporary guardian and conservator pending the hearing on the petition because Elmer "is being subjected to financial scams via telephone solicitation and other means, and has and continues to attempt to transfer funds to persons or entities unknown for the purpose of obtaining substantial financial rewards."
On the same day that Roger filed his petition, the county court entered an order appointing Roger as temporary guardian and conservator for Elmer pending a formal hearing on Roger's petition. The court also entered an order appointing Rhonda Vetrovsky as the guardian ad litem for Elmer.
On February 1, 2011, a hearing was held on Roger's petition to appoint a permanent guardian and conservator for Elmer. At the hearing, Roger presented evidence to demonstrate that Elmer is currently not capable of managing his own finances because he is easily taken advantage of and manipulated. Such evidence indicated that since approximately July 2010, Elmer had been receiving telephone calls from an individual who identified himself as "George Washington" and who promised to give Elmer such prizes as $1 million and a new car in the future if Elmer would send money to him now. There was evidence that Elmer sent this individual over $4,000 in an effort to claim the prizes offered to him and that in order to send such funds, Elmer cashed in a certificate of deposit worth $10,000. Elmer never received any money or other prizes in exchange for his payments.
Roger presented other evidence to demonstrate that Elmer was not taking care of himself or his home. There was evidence that Elmer had been trying to save money by using a small space heater to heat his home rather than turning on the furnace. However, the small space heater did not provide enough heat and Elmer often shivered under a blanket to stay warm. There was also evidence that Elmer's home was dirty and had been infested with insects. Elmer had been sleeping on a bare mattress, after shoving his dirty sheets under the bed rather than cleaning them.
In contrast, Elmer presented evidence at the hearing to demonstrate that he was capable of managing his own finances and taking care of himself. Elmer's physician, Dr. Mark Serbousek, testified that although Elmer has suffered from various physical ailments in recent months, he has not observed Elmer to be unable to make rational decisions or to manage his business and medical affairs. However, Dr. Serbousek also indicated that he had not conducted any specific testing to determine Elmer's capacity or competence. Elmer testified that he was aware of the property he owned and where his money was located. He testified that he wanted access to his checking account so that he could manage his money and pay his bills. Elmer indicated that sending money to "George Washington" was "one of my big mistakes."
At the close of the hearing, the county court found that Elmer is "unable to manage [his] own affairs" and that "because of mental deficiencies at this time, [he has] property that could be wasted or dissipated unless proper management is provided." The court then approved Roger's request to appoint a conservator for Elmer and appointed Roger as that conservator. The court found insufficient evidence to warrant appointment of a guardian. On February 2, 2011, the county court filed an order appointing Roger as the conservator for Elmer.
Elmer appeals from the county court's order here.
III. ASSIGNMENTS OF ERROR
Elmer asserts, consolidated and restated, that the county court erred in (1) admitting the guardian ad litem's report into evidence over his objection and (2) finding sufficient evidence to warrant appointment of a conservator.
IV. ANALYSIS
1. STANDARD OF REVIEW
An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made in the county court. In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009). When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
2. ADMISSION OF GUARDIAN AD LITEM REPORT
At the February 2011 hearing, Roger called the court-appointed guardian ad litem, Vetrovsky, to testify concerning her findings and recommendations. As a part of this testimony, Roger sought to admit into evidence the formal report authored by Vetrovsky. Elmer objected to the admission of the report into evidence, arguing that the report lacked foundation because Vetrovsky failed to interview or speak with Elmer in forming her ultimate conclusions. The court overruled Elmer's objection and received the report into evidence. The court explained:
[F]requently in these types of cases, the Court . . . appoints a Guardian ad Litem or a visitor to make an investigation into the facts. What the Guardian ad Litem did or did not do to prepare that report certainly goes to the weight given to the report, but . . . I don't believe it goes to the admissibility in these particular circumstances where a Guardian Ad Litem has been appointed by the Court to make an investigation. But certainly I will take into consideration who she interviewed and what her qualifications were to make certain recommendations and conclusions in that report.
On appeal, Elmer asserts that the county court erred in admitting Vetrovsky's report into evidence. Elmer argues that the report did not have a proper factual basis because Vetrovsky failed to interview him prior to writing her report. Elmer's assertion has no merit.
We first note that much of the information included in the guardian ad litem's report is cumulative in nature. The report largely consists of summaries of conversations Vetrovsky had with Roger; Steve Batty, a friend of the Leitner family; and William Burton, an employee at Wells Fargo Bank. Both Roger and Batty testified at the February 2011 hearing, and their testimony reiterated all of the information included by Vetrovsky in her report. In addition, although Burton did not testify at the hearing, there was other evidence presented concerning Elmer's banking history with Wells Fargo Bank and his withdrawal of large sums of money in recent months. Such evidence essentially mirrored the information Vetrovsky learned from her conversation with Burton.
Also included in the report were Vetrovsky's conclusions and recommendations to the court. This section of the report indicated Vetrovsky's belief that Elmer was in need of a guardian and a conservator because he was incapacitated and unable to manage his own finances and that Roger should be appointed Elmer's guardian and conservator. At the hearing, the guardian ad litem testified concerning these conclusions and recommendations, without objection.
We also note that the county court indicated its awareness of the possible limitations of Vetrovsky's report and explained that it would take those limitations into consideration when assessing the value of the report. Elmer does not point to any evidence in the record which suggests that the county court gave too much weight to the information provided in the report or that the court considered the report for an improper purpose. There is a presumption that a court trying a case without a jury, in arriving at a decision, will consider only competent and relevant evidence, and an appellate court will not reverse a case so tried because other evidence was admitted when there is material, competent, and relevant evidence admitted sufficient to sustain the judgment of the trial court. Nelson v. Metropolitan Utilities Dist., 249 Neb. 956, 547 N.W.2d 133 (1996).
We conclude that the county court did not err in admitting Vetrovsky's report into evidence. The evidence contained in the report was largely cumulative in nature, and the county court indicated that it would consider that Vetrovsky did not interview Elmer in arriving at her ultimate conclusions.
3. APPOINTMENT OF CONSERVATOR
Elmer challenges the appointment of a conservator and the sufficiency of the evidence supporting the county court's finding that he is in need of a conservator. Upon our review of the record, we conclude that the county court's decision to appoint a conservator for Elmer conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Accordingly, we affirm the decision of the county court.
The standard for appointment of a conservator is found in Neb. Rev. Stat. § 30-2630(2) (Reissue 2008):
Appointment of a conservator . . . may be made in relation to the estate and property affairs of a person if the court is satisfied by clear and convincing evidence that (i) the person is unable to manage his or her property and property affairs effectively for reasons such as . . . mental deficiency, physical illness or disability . . . and (ii) the person has property which will be wasted or dissipated unless proper management is provided . . . .The law is clear that a conservator should be appointed when the need under these statutes is shown to be clear and convincing. See In re Guardianship & Conservatorship of Hartwig, 11 Neb. App. 526, 656 N.W.2d 268 (2003).
Based on the evidence provided in the record, we conclude that the county court did not err in finding by clear and convincing evidence that Elmer is unable to manage his property effectively and that he has property which will be wasted or dissipated unless proper management is provided. Elmer gave away thousands of dollars to a complete stranger with the hopes that he would be rewarded with large amounts of money and expensive cars. Elmer continued to give money to this person despite the repeated attempts of his family and friends to explain to Elmer that "George Washington" was a "scammer," who was stealing Elmer's money and exploiting him. Elmer cashed in a certificate of deposit worth $10,000 in order to have more money to provide to "George Washington," while at the same time he refused to turn on his furnace to heat his home because it was too expensive. Taken together, this evidence is sufficient to support the county court's conclusion that Elmer is in need of a conservator. We affirm the decision of the county court to appoint a conservator for Elmer.
In his brief on appeal, Elmer also alleges that the county court erred by appointing a conservator for him because Roger did not prove that the "effects of dementia" necessitated a conservator as the petition alleged.
We agree with Elmer that in the petition, Roger alleged that Elmer was in need of a guardian and a conservator because he is "incapacitated in that he suffers from the effects of dementia." We also agree that there was no evidence presented at the February 2011 hearing to prove that Elmer did, in fact, suffer from dementia. The evidence revealed that Elmer has never undergone formal testing to determine his capacity or competency. And, while there was evidence that he did suffer from some sort of diminished capacity, there was also evidence that such a reduction in his cognitive functioning was due more to his advanced age than to a specific clinical diagnosis. However, we do not agree with Elmer that Roger's failure to prove he suffered from dementia indicates that Roger also failed to prove Elmer needed a conservator.
The petition filed in this case alleged that Elmer needed both a conservator and a guardian. The standards for the appointment of a conservator and a guardian are different.
The standard for appointment of a guardian is found in Neb. Rev. Stat. § 30-2620 (Reissue 2008):
The court may appoint a guardian if it is satisfied by clear and convincing evidence that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision . . . of the person alleged to be incapacitated.When we contrast the standard for appointment of a guardian with the standard for appointment of a conservator, which is explained above, it is clear that appointment of a guardian requires a finding that a person is incapacitated, while an appointment of a conservator requires a finding that a person is unable to manage his or her property effectively and that such property will be wasted without proper management.
Here, the county court found that Roger did not prove that Elmer was in need of a guardian, presumably because Roger did not demonstrate that Elmer was incapacitated due to the effects of dementia or otherwise. However, the court found that Roger did prove that Elmer was in need of a conservator because Elmer is unable to manage his property effectively and has property which will be wasted or dissipated unless proper management is provided. Based on the differing standards required to appoint a guardian and a conservator, we do not find that the court erred in appointing a conservator even though there was no evidence of incapacity. Elmer's assertion to the contrary has no merit.
V. CONCLUSION
We conclude that the county court did not err in admitting into evidence the report of the guardian ad litem or in finding that Elmer was in need of a conservator and appointing Roger as that conservator. Accordingly, we affirm the decision of the county court in its entirety.
AFFIRMED.