Opinion
SUPREME COURT DOCKET NO. 2012-033
08-31-2012
In re Bernice Billewicz Guardianship (Lillian E. Billewicz, Appellant)
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Rutland Unit,
Civil Division
DOCKET NO. 129-3-11 Rdcv
Trial Judge: Mary Miles Teachout
In the above-entitled cause, the Clerk will enter:
Appellant Lillian Billewicz, the daughter of ward Bernice Billewicz, appeals a superior court order granting appellee Dallas Haines, an attorney who served as the ward's guardian, payment for his services. We affirm.
This guardianship, and the late ward's financial affairs, have been subjects of lengthy and contentious court proceedings. In early 2009, the Vermont probate court appointed appellee, who had a law office near the ward's nursing home—then in Massachusetts—as guardian for the ward pursuant to a voluntary guardianship proceeding. A dispute between daughter and guardian arose when guardian sought to sell a New Hampshire cottage owned by the ward to pay for the ward's nursing home expenses. Daughter sought to have a new guardian appointed, but as of January 6, 2011, when the ward died, there had been no court-ordered change of guardian.
On July 6, 2010, guardian moved to allow payment of $20,080 for guardian services rendered from the prior allowance until July 2, 2010. A significant portion of the charges for which guardian sought payment involved representing the ward in several legal proceedings, including a proceeding in which daughter had sued her mother. On August 13, 2010, the probate court approved partial payment in the amount of $12,080 and reserved judgment on the remaining $8000. On January 10, 2011, guardian moved to allow payment of $3680 for guardian services rendered from July 2, 2010, until the ward's death. On January 31, 2011, the probate court issued an order approving both the $8000 balance from the previous motion and the $3680 from the then-current motion.
Daughter appealed that order. The civil division of the superior court held a de novo hearing on November 22, 2011, and issued its order November 28. The superior court concluded that guardian's records, as well as his testimony, supported his position that he spent reasonable amounts of time on tasks he was required to undertake. Among other tasks, guardian responded to daughter's efforts to seek a different voluntary guardian, attended hearings before both the probate and superior courts related to issues raised by daughter, handled the ward's financial affairs, sought permission to sell the ward's New Hampshire cottage, communicated with the staff at the ward's nursing home, and addressed the ward's final illness.
The superior court rejected daughter's objections. In response to daughter's argument that the ward's income should have been used to pay the nursing home bills and not guardian's expenses, the court concluded that there was sufficient equity in the New Hampshire cottage to pay the nursing home expenses. The court also found that it was reasonable for guardian to seek to sell the cottage in light of the ward's circumstances, to consult with the nursing home staff, to communicate with an expert hired by daughter to evaluate the ward, to change the beneficiary on the ward's life insurance from her deceased husband to her estate, and to investigate daughter's use of the ward's funds to pay for expenses on property no longer owned by the ward but held in trust for daughter and her children.
Daughter raises several claims of error on appeal. Generally, she argues that guardian engaged in unnecessary services for which he should not be compensated. Daughter further contends that the court lacked jurisdiction over the New Hampshire cottage and deprived her of her right to due process by not allowing her sufficient time to present her case at the evidentiary hearing. The latter two arguments are without merit. The fact that the superior court would not have had jurisdiction to make an order concerning disposition of the New Hampshire cottage does not mean that the court lacked jurisdiction to rule on whether guardian acted reasonably in commencing proceedings to sell the cottage. As for daughter's due process claim, our review of the transcript of the hearing reveals that the court afforded both parties a reasonable opportunity to present their positions. Daughter was not attempting to present additional witnesses; rather, she was trying to more fully explain arguments already raised in a notebook submitted into evidence for the court's review. We find no due process violation.
We now turn to daughter's arguments challenging the superior court's findings that guardian's services were reasonable. As the trier of fact, the superior court was in the best position to evaluate the credibility of the witnesses and to weigh the evidence presented. See In re M.A., 2011 VT 9, ¶ 18, 189 Vt. 354. Hence, on appeal, we will not disturb the court's findings absent a showing that they are clearly erroneous, and we will uphold its determination regarding guardian's expenses absent a showing that the court abused or withheld its discretion. See id.
According to daughter, guardian should not be compensated for services that daughter claims violated state and federal laws, were inconsistent with court orders or findings, or interfered with daughter's expert witness in a legal proceeding. Most of the challenged services revolved around guardian's efforts to sell the New Hampshire cottage, including efforts to get the Vermont guardianship recognized in New Hampshire, where the property was located, and to obtain a license to sell the property. The superior court concluded that guardian acted reasonably in this regard. Daughter disagrees, arguing that: (1) guardian's effort to have his guardianship over the ward recognized in New Hampshire was inconsistent with a finding by a Vermont superior court judge at a June 30, 2010, hearing that the ward was competent; and (2) guardian's effort to get a license to sell the New Hampshire property was inconsistent with the existence of ongoing litigation in New Hampshire regarding ownership of that property, as well as a September 2009 order by a New Hampshire court staying proceedings on the sale of the New Hampshire cottage until a Vermont probate proceeding regarding the guardianship was completed.
Our review of the limited record before us does not support daughter's position that the superior court abused or withheld its discretion in allowing the fees requested by guardian. Regarding the June 30, 2010 hearing, the Vermont superior court judge indicated that the ward appeared to be competent and recognized ward's expressed desire to change guardians; however, the court unequivocally stated that it was not terminating guardian's guardianship at that time and was not making any finding that guardian had done anything improper with respect to the guardianship. Rather, the judge remanded the matter to the probate court for it to consider an expected new petition from the ward for a voluntary guardianship with a different guardian. It is not clear from the record what, if anything, occurred on remand in that regard. What is clear, however, as found by the superior court in this case, is that guardian's guardianship was never terminated prior to the ward's death. Given that fact and the fact that the record does not demonstrate that guardian engaged in any improper activities during the guardianship, there is no basis to overturn the superior court's finding that it was reasonable for guardian to make efforts to sell the New Hampshire cottage to pay for the ward's living expenses.
Moreover, the fact of ongoing litigation in New Hampshire regarding that property did not render guardian's efforts to prepare to sell that property unreasonable. At the time of guardian's actions, the property was titled to the ward; daughter's challenge to the ward's ownership of the property did not necessarily require guardian to cease any action concerning that property, and the New Hampshire judge's stay did not preclude guardian from preparing for the sale of the New Hampshire cottage by obtaining a license in anticipation of that court's lifting of the stay. Accordingly, we cannot conclude that the superior court abused its discretion in concluding that guardian's services were reasonable.
Daughter also argues that the superior court abused its discretion by awarding guardian fees for "tampering" with a witness. Daughter is referring to the fact that guardian billed some time for communicating with daughter's expert witness, who was hired to submit a report regarding the ward's competency in a proceeding before the Vermont probate court. The superior court did not abuse its discretion in concluding that it was not unreasonable for the guardian to communicate with a psychiatrist who was evaluating the ward's competency.
Daughter further argues that the superior court erred in awarding guardianship fees from the ward's accumulated Social Security income when the ward had outstanding nursing-home debt. In particular, daughter appears to argue that guardian's request for an award of fees from the ward's accumulated Social Security benefits ran afoul of federal guidelines regarding the use of Social Security benefits by representative payees. The regulations and Social Security procedures manual cited in the materials daughter submitted to the trial court do not support her argument. Federal regulations require a representative payee to use benefits received on a payee's behalf for the payee's use and benefit, in a manner determined by the representative payee to be in the payee's best interests. 20 C.F.R. § 404.2035(a). The regulations daughter provided further indicate that payments for current maintenance, including institutional care, are considered to be "for the use and benefit of the beneficiary." 20 C.F.R. § 404.2040(b). Daughter did not provide, however, any regulations that suggest that payments for other guardianship costs and fees are necessarily deemed not to be for a payee's "use and benefit."
In fact, the Social Security Administration's internal procedures manual expressly allows for payments of guardianship costs and court-ordered fees from Social Security benefits if a beneficiary's personal needs are met and the guardianship costs would not deplete the beneficiary's funds. Social Security Administration, Program Operations Manual System, § GN 00602.040 (effective July 21, 2009), http://policy.ssa.gov/poms.nsf/lnx/0200602040. The superior court expressly found here that payment of the guardianship fees would not prevent guardian from meeting the ward's personal needs, including nursing home care, because there was sufficient equity in the New Hampshire cottage to pay for the nursing home in addition to all other debts owed by the ward. Moreover, the lion's share of guardianship fees in this case were awarded after the ward's death; the suggestion that payment of guardian's fees interfered with the ward's ongoing maintenance does not make sense in that context.
Finally, daughter argues that the superior court should not have awarded guardian $80 in fees charged for changing the beneficiary on the ward's life insurance from her deceased husband to the estate. Relying primarily on a sixty-year-old out-of-state case, daughter contends that the fees were unwarranted because a guardian cannot change an account on a life insurance policy without a court order. Daughter does not challenge the prudence of changing the beneficiary from the ward's deceased husband to the estate, but rather asserts only that guardian should not have been compensated for doing so because he had no authority to do so. The issue in this case was the reasonableness of guardian's fees. The superior court found that the change in beneficiary was a reasonable administrative task. We find no abuse of discretion.
Affirmed.
BY THE COURT:
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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Beth Robinson, Associate Justice