Opinion
111,463.
07-10-2015
In the Matter of the GUARDIANSHIP OF Brian D. LeVOTA, An Adult with an Impairment.
Leslie C. Byram, of Leslie C. Byram, P.A., of Prairie Village, for appellant, natural father. Stacey L. Janssen, of Law Office of Stacey L. Janssen, of Kansas City, Mo., for appellee, natural mother. Barry D. Martin, of Speer & Holliday, LLP, of Olathe, for appellee, Brian D. LeVota.
Leslie C. Byram, of Leslie C. Byram, P.A., of Prairie Village, for appellant, natural father.
Stacey L. Janssen, of Law Office of Stacey L. Janssen, of Kansas City, Mo., for appellee, natural mother.
Barry D. Martin, of Speer & Holliday, LLP, of Olathe, for appellee, Brian D. LeVota.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM:
This case comes before the court on a father's appeal of the termination of his guardianship of his adult son. Finding substantial competent evidence to support the district court's decision, we affirm the district courts removal of the father as guardian and it's assessment of equal cost, fees, and expenses against both parents. We also dismiss several claims for lack of jurisdiction.
Facts
In February 2012, Douglas LeVota was appointed guardian for Brian D. LeVota, his impaired adult son who lived with him, and a guardianship plan was established. Sheryl LeVota, Brian's mother, filed a petition to modify the guardianship plan, and the motion was set for trial. In January 2013, Douglas and Sheryl entered into a settlement agreement and agreed to a visitation schedule for Brian and Sheryl. At a subsequent hearing, the parties reported the visitation schedule had not been followed. After a series of status conferences, visitation between Brian and Sheryl remained a problem and no progress toward a harmonious resolution had been made.
Sheryl then filed an amended petition to modify the guardianship plan and remove the guardian, and the district court held a 5–day evidentiary hearing on the motion. The district court found the process of transitioning Brian into independent living should commence, but that Brian could continue to reside with Douglas until such time as independent living was established. The district judge also found it was not in Brian's best interests to force visitations with Sheryl. The district judge noted Douglas' anger would negatively impact the relationship between Brian and Sheryl, and he did not believe visitation between Brian and Sheryl was likely to occur in the immediate future. The district court hoped when Brian transitioned to independent living, his relationship with Sheryl would improve.
The district judge ultimately ordered Douglas' removal as guardian and appointed a successor guardian for Brian. He then ordered Douglas and Sheryl to share equally the payments for the successor guardian's approved fees and expenses. Douglas appeals.
Did the district court err by removing the father as guardian?
Douglas first argues the district court erred by removing him as guardian for his son because no evidence was presented and no findings were made indicating that he failed to perform the general duties of a guardian as provided by K.S.A.2014 Supp. 59–3075(b). Sheryl counters that the plain language of K.S.A.2014 Supp. 59–3075 supports Douglas' removal as guardian and that Douglas is asking this court to reweigh the evidence.
To the extent this court must interpret a statute, our review is unlimited. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The relevant statute, K.S.A. 59–3088(e) provides:
“At the conclusion of the hearing, if the court finds, by a preponderance of the evidence, that the guardian or conservator, or both, should be permitted to resign, or should be removed for failure to fulfill the duties or responsibilities of being a guardian or conservator, or for the manner in which the guardian or conservator has exercised the powers or authorities granted to the guardian or conservator, the court may so order and in such case shall revoke the letters of guardianship or conservatorship, or both, previously issued pursuant to K.S.A. 59–3069, and amendments thereto.”
“When a district court considers a question of fact that must be proved by a preponderance of the evidence, the review by this court is limited to determining when substantial competent evidence supports the district court's finding.” In re E.J.D., 301 Kan. ––––, Syl. ¶ 3. 348 P.3d 512 (2015). Because K.S.A. 59–3088 requires the district court to make its findings based on a preponderance of the evidence, this court must determine whether substantial competent evidence supported the district court's decision to remove Douglas as guardian. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014). “ ‘In evaluating the evidence to support the district court's factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact. A court ordinarily presumes that the district court found all facts necessary to support its judgment.’ [Citation omitted.]” In re Guardianship of Behnam, 47 Kan.App.2d 83, 86, 271 P.3d 1257 (2012), rev. denied 296 Kan 130 (2013).
Following the 5–day evidentiary hearing, at which doctors, caseworkers, family members, and friends testified, the district court found “by a preponderance of the evidence that [Douglas] should be removed as guardian for failure to fulfill the duties or responsibilities of being a guardian or for the manner in which he has exercised the powers or authorities granted to him as the guardian.” The district court stated six specific reasons supporting its conclusion. We address those reasons, as well as Douglas' arguments, below in reviewing the record to see if substantial competent evidence supports the district court's conclusions.
1. Guardian's negative influence over the ward
The district court found that Douglas had made negative comments about Sheryl in front of Brian, including that she was abusive and not a good mother. The district court also considered testimony about comments Brian made to Sheryl such as, “I am not supposed to tell you I miss you; Doug will be mad.”
Douglas seems to argue that the district court should have given more weight to a previous judge's decision in earlier proceedings which contained no evidence of any undue influence over Brian. What another judge decided in an earlier proceeding, however, is not relevant to our substantial evidence review of this district court's decision to remove Douglas as guardian. Douglas also argues no evidence showed he discouraged Brian from visiting Sheryl. Even assuming this is so, we find the evidence noted by the district court sufficient to justify its concern that Douglas had a negative influence on Brian.
2. Idolization of father by ward—clinging and inappropriate touching
The district court found Brian's idolization of Douglas to be a negative factor. In so finding, the court relied on the caseworker's testimony that she observed Brian hanging onto Douglas throughout their meeting and that she found such behavior to be inappropriate.
Douglas implies the district court mischaracterized idolization “in the negative sense.” He argues the testimony on this issue was based on pure speculation, and he contends the district court erroneously relied on the caseworker's testimony because: (1) she had met with Brian on only six occasions over 11 months; and (2) she admitted her unawareness that Brian seeks somebody to hug when he gets nervous and that person has always been his father.
The district court heard the caseworker's testimony before deciding that Brian's idolization of Douglas was inappropriate. The caseworker explained, “[Brian] want[ed] to have his head in [Douglas'] lap, he wanted [Douglas] to stroke him.” Brian would also seek Douglas' approval by asking, “Am I—is this okay? Am I okay, Dad? Did I say the right thing?” The district court was aware of the facts that concern Douglas, yet chose to credit the caseworker's testimony, agreeing that the behavior was negative. We do not reweigh the district court's credibility findings.
Douglas also claims the court ignored the caseworker's testimony that Brian expressed concerns to her about his mother and that the caseworker wholly failed to address those concerns. Because Douglas fails to cite to any record in support of this assertion, we presume it lacks support. See Supreme Court Rule 6.02 (2014 Kan. Ct. R. Annot. 40).
3. Anger toward natural mother
The district court found that Douglas harbored and expressed anger toward Sheryl. Douglas challenges the district court's reliance on the doctor's testimony that he believed Douglas was an “angry man.” Douglas argues the court ordered him to attend therapy, where the purpose was to discuss problems, and than used his conduct during therapy against him.
We find no error in the district court's crediting of the doctor's testimony. The doctor explained that he reached this conclusion based on Douglas' tone of voice, his mannerisms, and his continued expressions of anger toward Sheryl. The district court also considered Douglas' own testimony in determining his anger toward Sheryl was an issue negatively affecting his guardianship.
4. Petition for protection from stalking
The district court found Douglas did not act in Brian's best interests by failing to contact Sheryl before he filed a petition to protect Brian from her stalking him. The district court held Douglas failed to act as guardian and failed to act in an objective and direct manner. Douglas does not provide any argument regarding the district court's decision on this issue but merely states: “Given the history of this case, [he] had a legal duty to take action necessary to protect Brian's safety and welfare when all other efforts failed.”
The facts show that Sheryl had visited Brian at work many times. At some point, Douglas took Brian to the courthouse to file a petition for protection against stalking against Sheryl. The district court noted Douglas statement that Sheryl “badgered and harassed” Brian at work, but it found no further description of what had occurred. The district court also noted that Sheryl had visited Brian at work many times prior to the petition, and Brian seemed happy to see her.
Even if filing such a petition were necessary, we find no error in the district court's finding that a reasonable guardian, acting objectively, would have first contacted the alleged stalker about her bothering the ward at work, particularly where a mother-son relationship is involved, instead of contacting the guardian ad litem and Brian's attorney, as Douglas did here.
5. Failure to comply with court orders
The district court found: “[Douglas] re-interprets Court Orders to justify his conduct,” referring to the history regarding the visitation agreement between Douglas and Sheryl. A settlement agreement dated January 4, 2013, provided Brian would visit Sheryl once a week for 2 specified hours, but between that date and the date of the review hearing, only 5 of the 13 scheduled weekly visits had occurred. Douglas testified the visits were completely within Brian's discretion, but the district court disagreed, finding that assertion clearly contrary to the terms of the settlement agreement.
Douglas blames Sheryl for the missed visits. But his arguments consist of general statements which are not cited to the record and which ask this court to reweigh evidence and determine credibility. Further, the district court did not misconstrue the terms of the settlement agreement. That agreement states that Sheryl and Brian “shall have visitations on Thursdays between the hours of 7:00 and 9:00 each week,” and if a conflict prevents a Thursday visit, “then the parties shall reschedule the visitation” to another day that same week. Although Brian “shall have input on the location, nature, date of the visit and the precise time of the visits,” he was not given discretion to opt out of any weekly visit. Instead, “both parents shall cooperate with each other to assist Brian in scheduling time with his mother and both parents shall honor Brian's wishes, desires and choices regarding visitation details, with both parties recognizing that it is in Brian's best interest to have a relationship with both parents.” This and other language unambiguously says that although visitation details were within Brian's discretion, whether to visit or not on a weekly basis was required and not discretionary.
6. Lack of adherence to the guardianship plan
Douglas challenges the district court's statement that the guardianship plan “specifically contemplates [Brian's] transitioning to independent housing” and its finding that Douglas had no intention of transitioning Brian to independent living.
One of Brian's caseworkers, an expert specializing in transitioning young adults to independent living, testified:
“[E]ven if a person is doing well in his/her current setting, [the expert] still believes that it is in the young person's best interest to transition to independent living earlier, rather than later.”
The district court found: “Virtually all of the witnesses that have been involved in [Brian's] care believe that [Brian] can live independently with a support system, even the Guardian.” The district court found that, nonetheless, Douglas “ha[d] no intention of searching for and/or establishing independent housing for [Brian] .” Douglas does not challenge the latter finding regarding his intent.
Instead, Douglas argues the guardianship plan does not require a transition into independent living. He contends the following phrases support his claim: “Brian shall live with his Father until such time as Brian may establish independent living ” and that they will transition Brian “when Brian is ready. ” Additionally, he contends Brian is happy and doing well in his home and Brian wants to live with him. The district court considered this information but ultimately decided Douglas was not abiding by the guardianship plan.
Second, the district court addressed Brian's visitation with Sheryl. The guardianship plan stated Douglas will not discourage, prevent, or interfere with regular visits between Brian and Sheryl. The district court found even though Douglas “emphatically stated that he has never discouraged and always encouraged” the visits, the testimony suggested otherwise. The district court found Douglas' anger toward Sheryl “has interfered with and prohibited [Douglas'] ability to fulfill his role as the Guardian and the terms of this paragraph of the Guardianship plan.” Douglas does not dispute this finding.
Third, the district court found Douglas failed to safeguard Brian's financial resources. The district court specified its concerns regarding the accounting, including the following: Douglas made cash withdrawals out of the account, including one in the amount of $3,700; Douglas testified the money in the two accounts was actually his money because of all the “loans” he had provided to Brian; Douglas failed to maintain an accurate record of Brian's expenditures; and Douglas spent money on food and entertainment which were not for the benefit of Brian, as revealed by debit charges.
Douglas maintains that he had no responsibility to safeguard the account because he had never served as Brian's conservator and had never been granted the powers to exercise any control or authority over Brian's estate. Specifically, he claims the district court “lacked jurisdiction” to order him to file annual accountings. He also argues even if the district court did have this authority, he had safeguarded Brian's assets. But Douglas fails to support his argument, asserting only that the district court “wholly ignored” documentation which he believed supported his claim, without citing the record in support.
The district court addressed this “jurisdiction” argument in detail. Douglas argues K.S.A.2014 Supp. 59–3075(e)(8) is controlling. This statute provides: “A guardian shall not have the power: ... (8) to exercise any control or authority over the ward's estate, except if the court shall specifically authorize such .” He argues the guardianship plan did not authorize him to have control over Brian's estate. However, as the district court noted, it had authority under K.S.A.2014 Supp. 59–3083(a), which states:
“The guardian or conservator appointed by the court pursuant to either K.S.A. 59–3075 or 59–3067, and amendments thereto, annually, and at other times as the court may specify, shall file with the court ... reports and accountings concerning the status of the ward or conservatee, the estate of the ward or conservatee, and the actions of the guardian or conservator.” (Emphasis added.)
Douglas acknowledges he was appointed pursuant to K.S.A.2014 Supp. 59–3075, thus the district court had authority pursuant to K.S.A.2014 Supp. 59–3083(a) to order Douglas to provide accountings of Brian's estate.
Having reviewed the specific reasons stated by the district court, we revisit Douglas' claim that no evidence showed and no findings were made that he failed to perform the specific duties enumerated in K.S.A.2014 Supp. 59–3075(b). That statute states the “general duties, responsibilities, powers and authorities” that “a guardian shall have.” Douglas' argument seems to be that the district court did not specifically tie its findings to the individual duties listed in this subsection; therefore, no findings were made that he had violated these duties.
True, the district court did not cite particular subsections of K .S.A.2014 Supp. 59–3075(b) that Douglas failed to follow. Nonetheless, its rulings indicate that Douglas in fact violated one or more of those subsections. For example, the court's finding that Douglas had no intention of searching for and/or establishing independent housing for Brian despite the shared belief that Brian could live independently with a support system, shows that Douglas likely violated subsection (b)(4), which establishes the guardian's duty “to assure that the ward resides in the least restrictive setting appropriate to the needs of the ward and which is reasonably available.” Similarly, the findings that Douglas had a negative influence over Brian, exhibited anger toward Sheryl, and did not comply with the agreed visitation plan establishes a violation of subsection (b)(6), which sets forth the guardian's broad duty “to promote and protect the comfort, safety, health and welfare of the ward. ” Many of the district court's findings are to the effect that Douglas' course of conduct was not in Brian's best interests or did not promote his welfare.
Further, Douglas did not abide by subsection (a) of that statute, which more broadly states the guardian's duties. K.S.A.2014 Supp. 59–3075(a)(1) provides:
“The individual ... appointed by the court to serve as the guardian shall carry out diligently and in good faith, the general duties and responsibilities, and shall have the general powers and authorities, provided for in this section as well as any specific duties, responsibilities, powers and authorities assigned to the guardian by the court. In doing so, a guardian shall at all times be subject to the control and direction of the court, and shall act in accordance with the provisions of any guardianship plan filed with the court pursuant to K.S.A. 59–3076, and amendments thereto.”
As previously addressed, the district court found by a preponderance of the evidence that Douglas violated the guardianship plan and the settlement agreement. Having reviewed the record in detail, we find substantial competent evidence supporting that finding, warranting Douglas' removal as guardian.
Does the father have standing to assert claims on behalf of the son?
Douglas raises two more arguments in his brief: (1) The district court lacked jurisdiction to order Brian's transition to independent living; and (2) the district court violated Brian's constitutional rights. Because we find the district court did not err by removing Douglas as guardian, we also find Douglas lacks standing to bring these claims.
Although neither party addresses the issue of standing, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013). Standing to bring an action is a component of subject matter jurisdiction. Stechschulte v. Jennings, 297 Kan. 2, Syl. ¶ 11, 298 P.3d 1083 (2013). Subject matter jurisdiction may be raised at any time, even for the first time on appeal and even on the appellate court's own motion. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009).
In Gannon, our Supreme Court explained the concept of standing:
“Generally, to have standing, i.e., to have a right to make a legal claim or seek enforcement of a duty or right, a litigant must have a ‘sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy.’ [Citation omitted.]” 298 Kan. at 1122, 319 P.3d 1196.
Our Supreme Court further addressed the traditional test for standing in Kansas. “ “ ‘[A] person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.’ “ [Citations omitted.]” 298 Kan. at 1123, 319 P.3d 1196. To establish a cognizable injury, “ ‘a party must establish a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of challenged conduct.’ [Citation omitted.]” 298 Kan. at 1123, 319 P.3d 1196. Additionally, “[t]he injury must be particularized, i.e., it must affect the plaintiff in a ‘ “personal and individual way.’ “ [Citations omitted.]” 298 Kan. at 1123, 319 P.3d 1196. Because Douglas is no longer Brian's guardian, he cannot establish the first prong of the test. Douglas did not suffer a cognizable injury, as these two claims personally affect Brian but not Douglas. Douglas therefore lacks standing to bring claims on behalf of Brian.
Brian raises arguments that align with Douglas' arguments above. But Brian has filed a brief as an appellee and has not filed a cross-appeal in this matter. “Before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, the rulings are not properly before the appellate court and may not be considered.” Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 2, 176 P.3d 144 (2008). Accordingly, we cannot consider these claims despite Brian's status as appellee.
Did the district court err by assessing attorney fees against Douglas and Sheryl?
Douglas claims that throughout the proceedings the district court assessed all fees against the parties equally, yet failed to provide any basis for so doing. He contends this assessment is not just and equitable given Sheryl's behavior toward Brian, and he wants all fees to be assessed against either Sheryl or the General Fund of Johnson County, Kansas. Sheryl argues all of the fees should be assessed against Douglas because the district court found no misconduct on her part but made substantial findings regarding Douglas failure to fulfill his duties as guardian. Sheryl, like Brian, has filed only an appellee's brief and no cross-appeal, so we do not reach her claim. We therefore examine only Douglas' argument.
Where, as here, the district court has authority to grant attorney fees, we review its decision for an abuse of discretion. Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). Judicial discretion is abused when the decision is so arbitrary that no reasonable person would agree with it or when the decision is based on an underlying legal or factual error. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Our legislature has granted the district court authority to order the costs and fees in this type of proceedings:
“The costs shall be taxed to the estate of the ... ward ..., to those bound by law to support the ... ward ..., to other parties whenever it would be just and equitable to do so, or to the county of residence of the ... ward ... as the court having venue shall direct.” K.S.A.2014 Supp. 59–3094(a).
Douglas makes general statements that Sheryl is at fault and should pay the fees, but he fails to show how the district court's assessment of costs and fees was not just and equitable. The district court had the authority to order the parents to pay the costs and fees, and nothing in the record indicates the district court's decision to assess the costs and fees equally was based on an underlying legal or factual error. Nor do we find that decision so arbitrary that no reasonable person would agree with it.
In conclusion, we find substantial competent evidence supporting the district court's decision to remove Douglas as guardian. We also find Douglas does not have standing to raise claims on behalf of Brian and that Brian and Sheryl have not cross-appealed as is necessary to raise their claims of error, therefore, we dismiss those claims for lack of jurisdiction. Finally, we find no abuse of discretion in the district court's assessment of equal costs and fees against Douglas and Sheryl.
Affirmed in part and dismissed in part.