Opinion
E067308
10-15-2018
Conservatorship of the Person and Estate of CECELIA ANN MATTHESIUS. ANN E. STAUB, as Conservator, etc., Petitioner and Appellant, v. PAULA EADE, Objector and Respondent.
Law Office of Robert J. Spitz and Robert J. Spitz for Petitioner and Appellant. No appearance for Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CONPS1100080) OPINION APPEAL from the Superior Court of San Bernardino County. Cynthia Ann Ludvigsen, Judge. Dismissed. Law Office of Robert J. Spitz and Robert J. Spitz for Petitioner and Appellant. No appearance for Objector and Respondent.
Once a conservatorship is established in California over a California resident, the conservator must obtain the probate court's permission if they want to move the conservatee to another state. (Prob. Code, § 2352 [petition to establish residence of conservatee out of state]; unlabeled statutory citations refer to this code.) In such cases, the Probate Code presumes the conservatee's California home is the "least restrictive appropriate residence" and requires the conservator to prove otherwise by a preponderance of the evidence. (§ 2352.5, subd. (a).)
Ann Staub is the conservator of her 93-year-old mother, Cecelia Matthesius (conservatee), who has spent the last six decades of her life in California—the last three of which she spent with her live-in partner in her Chino Hills home. Ann (or conservator) sought permission to move her mother to Florida, where conservator lived before the conservatorship. After an eight-day hearing, the court concluded conservator failed to rebut the statutory presumption and denied her petition. Conservator appealed, arguing the court abused its discretion in so ruling because the presumption does not apply to her petition or, in the alternative, she presented sufficient evidence to rebut it.
I
FACTUAL BACKGROUND
Conservatee is 93 years old and suffers from mild to moderate dementia. She moved from Maryland to California in 1952 when she was in her mid-20s, and has lived in this state ever since. She left Ann, her only child, behind to be raised by the child's grandmother. After Joe Matranga, conservatee's live-in partner of nearly 40 years, passed away in 2011, Ann successfully petitioned to become her conservator. Retired and living in Florida, conservator was able to indefinitely leave her home and move in with conservatee. Unfortunately, there is a strain between conservator and Joe's family, and in the years that followed, she made it difficult for them, specifically Joe's daughter Paula Eade, to contact or visit conservatee. On multiple occasions, the court had to order her to allow visits with Paula and remind her she did not have authority to limit conservatee's contact with Joe's family.
Conservator first requested permission to move her mother to Florida in 2013. She filed a petition to fix conservatee's residence out of state, but Paula objected and she ended up withdrawing the request. In 2015, she filed another petition to fix conservatee's residence in Florida, and Paula again objected. Over an eight-day hearing that took place between the fall of 2015 and summer of 2016, the court received evidence on the petition. Conservator, the geriatric psychiatrist she hired to treat and evaluate her mother, and one of the in-home caregivers testified in support of the petition. Paula, her family, and conservatee's court-appointed guardian ad litem testified in opposition. The court concluded conservator had not rebutted the statutory presumption and denied the petition.
II
REQUEST FOR DISMISSAL
After we issued our tentative opinion and conservator requested oral argument, she asked us to dismiss her appeal. An appellant is not entitled to dismiss their appeal as a matter of right. California Rules of Court, rule 8.244(c)(2) provides that upon receiving a request to dismiss, "the court may" grant the request and direct immediate issuance of the remittitur. (Italics added; see, e.g., Arden Group, Inc. v. Burk (1996) 45 Cal.App.4th 1409, 1411, fn. 1 [refusing to dismiss case scheduled for oral argument, noting parties had provided no explanation for allowing the court to "wast[e] our limited resources" on the appeal].) Though we do not appreciate unexplained requests for dismissals after we have tentatively completed our review of a case, in the interests of avoiding further expenditure of resources, we will exercise our discretion to grant conservator's request.
III
DISPOSITION
We dismiss the appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.