Opinion
NUMBER 2017 CA 1352
04-06-2018
IN RE: THE INTERDICTION OF JEAN TOUPS KRAKE
Jeremy D. Goux Martha D. Bowden Covington, LA Attorneys for Appellee Allen Krake P. David Carollo Slidell, LA Attorney for Appellant Terri A. Drake Chelsea D. Dazat Covington, LA Attorney for Appellee Jean Toups Krake Jeff Bratton Covington, LA Attorney for Appellee Curator
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2017-10217 Honorable William J. Knight, Judge Jeremy D. Goux
Martha D. Bowden
Covington, LA Attorneys for Appellee
Allen Krake P. David Carollo
Slidell, LA Attorney for Appellant
Terri A. Drake Chelsea D. Dazat
Covington, LA Attorney for Appellee
Jean Toups Krake Jeff Bratton
Covington, LA Attorney for Appellee
Curator BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
Terri A. Krake appeals a judgment appointing her brother, Allen Krake, as the curator of their mother, Jean Toups Krake, who was previously interdicted. Allen Krake has answered the appeal seeking damages for frivolous appeal, including costs and attorney fees incurred in defending the appeal. We affirm the judgment of the trial court, we deny the answer to appeal, and issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B).
Jean Krake was fully interdicted pursuant to a judgment signed by the trial court on March 3, 2017. Jean Krake's interdiction was based on her significant memory impairment and a diagnosis of Alzheimer's dementia. The necessity of her interdiction has not been challenged and is not in dispute. However, following Jean Krake's interdiction, her two adult children, Terri Krake and Allen Krake, each sought to be appointed as her curator and a hearing on that issue was held on May 1, 2017.
Jean Krake also had another adult child, Patrick Krake; however, he died in 2007.
At the time of the hearing, Jean Krake was 81 years old, and had been living at Beau Provence Memory Care Assisted Living Facility ("Beau Provence") in Mandeville, Louisiana, since March 2016. Prior to her admission at Beau Provence, Jean Krake resided in the former family home located in Belle Chase, Louisiana for approximately 40 years. Jean Krake's husband, Paul Krake, died on September 20, 2010. Jean Krake has never resided outside of Louisiana, except for a brief period of time when the Krake family lived in Saudi Arabia.
Allen Krake and his wife, Lisa Krake, have maintained their residence in Louisiana for approximately 44 years. Allen and Lisa Krake currently reside in Madisonville, Louisiana, and their residence is approximately fifteen to twenty minutes from Beau Provence. Allen and Lisa Krake often visited Jean Krake when she lived in Belle Chase and assisted her with groceries, paying bills, and cleaning her house. Lisa Krake also assisted Jean Krake in making and attending medical and dental appointments. Allen and Lisa Krake moved Jean Krake and her belongings into Beau Provence, and the proximity of their residence to Beau Provence allowed them and their children to visit Jean Krake on a regular basis.
Terri Krake has resided outside of Louisiana for approximately 32 years. For the last 27 years, Terri Krake has lived in Minneapolis, Minnesota and during that time, Jean Krake has visited her in Minneapolis approximately five times; however, Jean Krake has not visited there in the past ten years. Terri Krake is disabled, as she suffers from seizures, which prevents her from driving. Terri Krake has been married to Lora Krake for approximately two years. In 2008, Terri Krake was given a power of attorney by her mother and has been managing her mother's financial matters. In December 2016, Terri Krake notified Allen Krake that in January 2017, she was going to move their mother to a nursing home in Minneapolis. Around the time Terri Krake came to Louisiana in January 2017 to get her mother, Allen Krake commenced these interdiction proceedings, as well as another proceeding seeking an injunction to prohibit Terri Krake from moving their mother to Minneapolis. Prior to the commencement of these proceedings, Terri Krake's last visits to Louisiana to see her mother were in 2012 and in 2014.
Essentially, the dispute between Allen Krake and Terri Krake over who should be appointed as Jean Krake's curator focused on where Jean Krake should reside. More specifically, Allen Krake requested to be appointed curator so that Jean Krake would remain living close to him and his family in Louisiana, whereas Terri Krake requested to be appointed curator so that she could move Jean Krake to be near her in Minneapolis, Minnesota. After the hearing, the trial court rendered and signed a judgment on May 10, 2017, which, among other things, appointed Allen Krake as the permanent curator over the person, property, and finances of Jean Krake and appointed Allen Krake's wife, Lisa Krake as the permanent undercuratrix of Jean Krake. From this judgment, Terri Krake has appealed, essentially claiming that the trial court erred by not appointing her as curatrix, not allowing her to relocate Jean Krake to a nursing home in Minneapolis, and by failing to consider the fact that Terri Krake had a power of attorney for Jean Krake and had handled Jean Krake's financial affairs for the past eight years.
On appeal, Terri Krake has not challenged the appointment of Lisa Krake as Jean Krake's permanent undercuratrix. --------
Louisiana Civil Code article 389 provides that "[a] court may order the full interdiction of a natural person ... who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means." Thereafter, "[t]he court shall appoint a curator to represent the interdict in juridical acts and to care for the person or affairs of the interdict, or any aspect of either." La. C.C. art. 392. "In discharging his duties, a curator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict." Id.
Louisiana Code of Civil Procedure article 4561 provides:
A. The court shall appoint as curator the qualified person who is best able to fulfill the duties of his office.
B. (1) The following persons are not qualified to serve as a curator of an interdict:
(a) A person under eighteen years of age.
(b) An interdicted person.
(c) A nonresident of the state without a resident agent for service of process.
(2) Except for good cause shown, the following persons are not qualified to serve as a curator of an interdict:
(a) A convicted felon.
(b) A person indebted to the interdict at the time of appointment.(Emphasis added).
(c) An adverse party in a lawsuit pending against the interdict at the time of appointment.
(d) An owner, operator, or employee of long-term care institutions where the interdict is receiving care, unless he is related to the interdict.
C. (1) The court shall consider the qualified persons in the following order of preference:
(a) A person designated by the defendant in a writing signed by him while he had sufficient ability to communicate a reasoned preference.
(b) The spouse of the defendant.
(c) An adult child of the defendant.
(d) A parent of the defendant.
(e) An individual with whom the defendant has resided for more than six months prior to the filing of the petition.
(f) Any other person.
(2) The court may appoint separate curators for the person and affairs of the interdict pursuant to Article 4069.
D. At any time prior to qualification, the court may revoke the appointment for good cause and appoint another qualified person.
With respect to managing the affairs of the interdict, the curator may not establish or move the place of dwelling of the interdict without prior court authorization. La. C.C.P. art. 4566(F).
A trial court has great discretion to act in the best interest of the interdict in appointing a curator. In Re Smith, 94-0262 (La. App. 5th Cir. 11/16/94), 646 So.2d 1052, 1061, writ denied, 94-2996 (La. 2/3/95), 649 So.2d 407. In re Interdiction of Thomas, 535 So.2d 1315, 1316 (La. App. 5th Cir. 1988). On appeal, the trial court's ruling will not be disturbed unless an abuse of that discretion is shown. See In Re Smith, 646 So.2d at 1061; see also In re Helm, 2011-0500 (La. App 4th Cir. 11/2/11), 84 So.3d 601, 604 (noting that in reviewing an appointment of a curator, appellate courts have accorded the trial court "great discretion to act in the best interest of the interdict ....")
In this case, after hearing all of the evidence with respect to the issue of who should be appointed curator in this case, the trial court stated as follows:
The question becomes under the [c]odal articles who is best capable of attending to the person and/or affairs of the interdict. We have some guidance in the Code, of course, as to that. One of the things the [c]ourt always looks at, and I find this interesting that the legislature would have recognized how serious a matter that is. [Louisiana] Code of Civil Procedure [a]rticle 4566, under subpart F, puts some limitations on a curator. One of those limitations is that the curator will not move the domicile of the interdict outside of this state without prior court authorization. Why is that? There are a lot of reasons for that. As human beings[,] we come to be very habituated to certain things, to certain places, to certain people, even certain actions. ...You become habituated to things. There's a certain comfort in that. So it's a very, in my mind, serious matter to consider moving someone from a place of comfort. And there are no assisted living facilities, there are no nursing homes which are 100 percent what I'd like to see. ... Because facilities are, by their very nature, not capable of providing the same level of care and the same level of attention and comfort that we have at home. And that's unfortunate, but that's just the way it is.
So the question becomes what is best for Ms. [Jean] Krake and who is the most appropriate person to be able to provide that. I think, under these circumstances, to move Ms. [Jean] Krake would be doing her a serious disservice. I think Allen Krake is capable of providing the necessary services to his mother for the curator duties in connection with her interdiction. I think he is more than willing to do so. And that's not to throw any rocks at either side, that's not my job here today. My job is to hopefully see to it that everybody provides to Ms. Jean ... Krake the attention that she needs in these golden years that she's experiencing.
Based on our review of the record, we cannot say that the trial court abused its discretion in appointing Allen Krake as Jean Krake's curator and in determining that she should continue to reside in Louisiana, and more particularly, at Beau Provence, the assisted living facility where she had been residing for over a year. The evidence established that Allen Krake, as an adult child of Jean Krake, is qualified to be her curator. His residence is in close proximity to Beau Provence, which enables him and his family to regularly visit with Jean Krake and he is capable of providing her care and managing her affairs. While Terri Krake may have been given a power of attorney approximately nine years prior to Jean Krake's interdiction, this power of attorney did not contain a nomination or designation for Terri Krake to be appointed curatrix in the event of Jean Krake's interdiction. See La. C.C.P. art. 4561(C)(1)(a) and comment (a). Terri Krake is not a resident of Louisiana and the record does not establish that she has a resident agent for service of process. See La. C.C.P. art. 4561(B)(1)(c). Furthermore, the designation of Terri Krake as curatrix of Jean Krake would result in a move of Jean Krake's residence from Louisiana to Minneapolis. Considering Jean Krake's long time residency in Louisiana and the effects of her Alzheimer's dementia, the record establishes such a move would not be in her best interest. Thus, the trial court did not abuse its discretion in determining that Allen Krake was the qualified person who was best able to fulfill the duties of Jean Krake's curator. See La. C.C.P. art. 4561(A) and (C). Accordingly, the judgment of the trial court appointing Allen Krake as curator of Jean Krake is affirmed.
Lastly, Allen Krake has filed an answer to appeal seeking damages for frivolous appeal pursuant to La. C.C.P. art. 2164. See also La. C.C.P. art. 2133 and Uniform Rules—Courts of Appeal, Rule 2-19. In order to assess damages for frivolous appeal, it must appear that the appeal is taken solely for the purpose of delay or that counsel does not seriously believe the view of the law that he advocates. Guarantee Systems Construction & Restoration, Inc. v. Anthony, 97-1877 (La. App. 1st Cir. 9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La. 12/18/98), 734 So.2d 636. Although we do not find merit to any of Terri Krake's arguments on appeal, we cannot say that this appeal was taken solely for the purpose of delay or harassment or that counsel for the appellant did not seriously believe the position he advocated. Thus, Allen Krake's request for damages for frivolous appeal is denied.
For all of the above and foregoing reasons, the May 10, 2017 judgment of the trial court is affirmed, and Allen Krake's answer to the appeal is denied.
All costs of this appeal are assessed to the appellant, Terri A. Krake.
AFFIRMED; ANSWER TO APPEAL DENIED.