Opinion
H044567
11-21-2019
Conservatorship of the Person and Estate of ELEANOR M. FINNERTY, etc., et al., PATRICIA A. ROSSI, as CONSERVATOR, etc., et al., Petitioners and Respondents, v. WILLIAM J. FINNERTY, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. MP20874, MP20875)
Appellant William J. Finnerty appeals from two orders entered by the probate court on accounts and reports filed by respondent Patricia A. Rossi in two conservatorship cases involving their parents. The orders are affirmed.
One order was entered in In re Conservatorship of Eleanor M. Finnerty (case No. MP20874) and approved: respondent's supplemental account and report of conservator of the estate; second and final account of trustee of the Finnerty Trust; petition for fees for trustee and conservator; petition for attorney fees; and petition for approval of distribution of trust assets. The other order was entered in In re Conservatorship of John J. Finnerty (case No. MP20875) and approved respondent's supplemental account and report of conservator of the estate and petition for award of fees to conservator and counsel.
I. Factual and Procedural Background
The record on appeal does not include a reporter's transcript. With the exception of the notices of appeal and the notices designating the record on appeal, appellant has not included any documents that he filed in the trial court. Consequently, our summary is based on the documents filed by respondent.
A. 2012 Petitions
On September 14, 2012, respondent filed a petition for the establishment of a conservatorship of the person and estate for Eleanor Finnerty, her mother. At the same time, respondent filed a petition to be appointed her temporary conservator. The petition for appointment for temporary conservator stated that Eleanor suffered from moderate dementia. She had lived in Massachusetts with her son, appellant, until July 2012 when she came to live in respondent's home in Monterey. Based on information and belief, respondent alleged that appellant was not providing adequate care for Eleanor and she was living in unsafe conditions. Respondent was informed and believed that multiple calls were received by adult protective services in Massachusetts regarding Eleanor's well-being, including that appellant had isolated her from family members. Eleanor was also found with multiple bruises on her shins and arms on one occasion,
When Eleanor arrived in Monterey, she was taken for medical treatment. She was suffering from depression, incontinence, and had a growth on her foot, which required immediate removal. Eleanor also began receiving weekly therapy for depression and anxiety.
Respondent was told by Eleanor that her bank accounts were held jointly with appellant even though the funds belonged to her. Respondent was concerned that appellant was accessing Eleanor's Social Security and pension funds for his own benefit. Respondent sought a temporary conservatorship to ensure Eleanor's safety and to protect and preserve her assets for her ongoing care.
In the petition for conservatorship of the person and estate of Eleanor, respondent sought orders: authorizing independent powers under Probate Code section 2590 to handle financial matters; adjudging Eleanor to lack capacity to give informed consent for medical treatment; and granting other authority related to dementia placement or treatment. To support her petition, respondent included many of the same facts that were set forth in her petition for a temporary conservatorship. In addition, respondent stated that Eleanor had expressed a desire to live with respondent and that appellant continued to implore her to return to Massachusetts. Eleanor had also told respondent that she had transferred title to one-half of her home to appellant. According to respondent, Eleanor was unable to manage her financial affairs or resist appellant's undue influence. Accordingly, respondent sought her appointment as conservator.
The petitions were granted and the letters of conservatorship were issued in December 2012. These orders became final at that time and are not subject to challenge in this appeal. (Prob. Code, § 1301; Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 (Gilkison).)
On September 14, 2012, respondent filed a petition for the establishment of a conservatorship of the person and estate for John Finnerty, her father. At the same time, respondent filed a petition to be appointed his temporary conservator. The petition for appointment for temporary conservator stated that after John was diagnosed with severe dementia in July 2012, he moved into an assisted living facility in California. Since John wandered away from this facility, he moved to another assisted living facility in August 2012. John continued to wander and became verbally abusive, but staff were working to meet his needs. Respondent believed John was susceptible to undue influence and unable to make appropriate decisions in financial matters.
In the petition for conservatorship of the person and estate of John, respondent sought orders: authorizing independent powers under Probate Code section 2590 to handle financial matters; adjudging John to lack capacity to give informed consent for medical treatment; and granting other authority related to dementia placement or treatment. To support her petition, respondent included the same facts that were set forth in her petition for a temporary conservatorship. Respondent stated that a conservatorship was necessary to ensure that John resided in a safe environment. Respondent also stated that John was unable to make appropriate financial decision or protect his resources due to his profound memory loss.
The petitions were granted and the letters of conservatorship were issued in November 2012. These orders became final at that time and are not subject to challenge in this appeal. (Prob. Code, § 1301; Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5.)
B. First and Final Accounts
In February 2015, respondent filed: a first and final account and report of conservator of the estate; a petition for allowance of fees to respondent; a petition for attorney's fees; and a petition for discharge of Eleanor's conservatorship (first and final account). The petition alleged that Eleanor died on November 23, 2013. The petition explained that respondent had filed a petition for substituted judgment in May 2013 in which she sought authorization to establish the John Finnerty and Eleanor Finnerty 2013 Trust (Finnerty Trust). The court granted the petition in October 2013. The first and final account covered the period from September 21, 2012, through December 8, 2014. It also included an accounting for the assets of the Finnerty Trust.
Respondent provided a summary of the family dynamics that led to the conservatorship. Eleanor and John lived in the family home in Massachusetts. Appellant moved in with them in 1998. He became increasingly emotionally dependent on Eleanor, which led to disagreements between John and Eleanor. John moved out of the family home in 2010, because he could no longer tolerate appellant's "increasingly erratic behavior." Appellant then began to take financial advantage of Eleanor, to isolate her from family members, and to encourage her to divorce John.
When John moved to Monterey, Eleanor told respondent that she was afraid of appellant, needed help, and wanted to leave the family home. After consulting with her other siblings, respondent moved Eleanor to Monterey.
Appellant responded to the conservatorship by sending such disturbing letters to Eleanor that the court ordered that they be screened by her psychologist. When appellant also called Eleanor at all hours of the day and night, the court issued an order that his calls to her be monitored. Respondent was also required to engage in litigation in Massachusetts to secure possession of Eleanor's personal and real property over appellant's objections. Respondent eventually prevailed, but at great expense to the conservatorship.
The first and final account then set forth a detailed series of accounting summaries, schedules, and supporting exhibits. Respondent also sought orders continuing jurisdiction of the court to manage the Finnerty Trust and authorizing the discharge of respondent as conservator of Eleanor.
Following a hearing in May 2015, the court approved the first and final account of Eleanor's conservatorship. This order became final at that time and is not subject to challenge in this appeal. (Prob. Code, § 1301; Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5.)
In September 2014, respondent filed: a first and final account and report of conservator of the estate; a petition for award of fees to conservator and counsel; and a petition for discharge of John's conservatorship (first and final account for John). The petition alleged that John died on July 21, 2014. The first and final account for John set forth a detailed series of accounting summaries, schedules, and supporting exhibits for the period from September 21, 2012, through July 21, 2014. Respondent also sought orders continuing the jurisdiction of the court to manage the Finnerty Trust and authorizing the discharge of respondent as conservator of John.
Following a hearing in February 2015, the court approved the first and final account for John. This order became final at that time and is not subject to challenge in this appeal. (Prob. Code, § 1301; Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5.)
C. Matters Subject to the Present Appeal
On December 6, 2016, in her capacity as Eleanor's conservator and trustee of the Finnerty Trust, respondent filed: a supplemental account and report of conservator of the estate (supplemental account); a second and final account of trustee of the Finnerty Trust (second and final account); a petition for fees for trustee and conservator; and a petition for approval of distribution of trust assets. The supplemental account covered the period from December 8, 2014, through August 24, 2015, when the assets of Eleanor's conservatorship were transferred to the Finnerty Trust. Respondent summarized the litigation in the case and provided the court with a summary of each category subject to the accounting with the corresponding exhibits and schedules.
The terms of the Finnerty Trust provided that, after the payment of the costs of administration, the remaining assets of the trust would be distributed in equal shares to the five living children of John and Eleanor. The petition set forth the proposed distribution, after setting aside a reserve of $5,000 for the filing of fiduciary tax returns and legal and trustee fees related to the distribution. The petition sought: confirmation of the supplemental account; confirmation of the second and final account; approval of respondent's acts as conservator and trustee of the Finnerty Trust; legal fees; conservator's and trustee's fees.
Following a hearing on January 25, 2017, the court confirmed respondent's acts in her capacity as conservator of the estate of Eleanor. The court approved: the supplemental account; and the second and final account. The court awarded respondent fees for services provided during the period of the supplemental account and the second and final account as well as attorney's fees. The court also authorized distribution to the beneficiaries from the Finnerty Trust.
On December 6, 2016, in her capacity as conservator of the person and estate of John, respondent filed: a supplemental account and report of conservator of the estate; and a petition for award of fees to the conservator and counsel (supplemental account for John). The supplemental account for John covered the period from October 28, 2014, through August 24, 2015. Respondent provided an accounting of the transactions that occurred during this period with the corresponding exhibits and schedules. Respondent sought fees for her services and attorney's fees.
Following a hearing on January 25, 2017, the court approved the supplemental account for John and approved respondent's acts as conservator of the estate. The court also awarded fees to respondent and respondent's counsel.
Appellant filed a timely notice of appeal from both orders.
II. Discussion
Appellant contends that the probate court erred throughout the case involving the conservatorship of Eleanor. We reject appellant's attempts to raise claims regarding the orders: appointing a temporary conservator, establishing the conservatorship; granting the petition for substituted judgment to establish the Finnerty Trust; and appointing respondent the trustee. As previously noted, appellant forfeited his opportunity to challenge any of the probate court's orders between 2012 and 2015. These orders are final and are not subject to challenge in this appeal. (Prob. Code, § 1301; Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5.)
Appellant also claims that "there were a multitude of open unanswered issues, missing documentation, and obviously false claims of assets and property listed by" respondent. Since appellant's briefs are defective in several respects and prevent appellate review, his claims of error have been waived.
A fundamental rule of appellate review is that " '[a] judgment or order of the lower court is presumed correct' " and " 'error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness. The party asserting error must also "designate an adequate record." (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858, fn. 13, italics added.) "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)
Here, the appellate record is inadequate. Appellant has failed to provide a reporter's transcript of the hearings before the probate court. The record also does not include any pleadings that appellant might have filed in opposition to the supplemental account, the second and final account, and the supplemental account for John. Given this inadequate record, we are unable to ascertain whether appellant even preserved his claims of error by making objections before the probate court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Thus, he has failed to carry his burden to show error by the probate court.
In his reply brief, appellant cites to the Monterey Register of Actions to support his claim that he made objections during the proceedings. However, with the exception of the filing of the notice of appeal and the notice designating the record on appeal, appellant cites to actions that occurred in 2012 and 2013. More importantly, assuming he made objections, the record does not indicate the basis for any of his objections. (Evid. Code, § 353.)
In addition, "[i]t is the duty of counsel by argument and the citation of authorities to show that the claimed error exists." (In re Estate of Randall (1924) 194 Cal. 725, 728.) Self-represented parties are held to the same standards as parties who are represented by counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) An appellate brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Here, appellant has failed to cite to any portion of the record on appeal. He has also failed to support his claims with "reasoned argument and citations to authority." (Id. p. 784.) Thus, his claims have been waived.
In his reply brief, appellant notes that respondent failed to file her brief on July 6, 2018 and did not seek an extension of time. Had this court sent out a notice of default, respondent would have had an additional 15 days to file to file her brief. Since she filed her brief on July 13, 2018, we will consider her brief. (See Cal. Rules of Court, rule 8.882(b)(4).) --------
III. Disposition
The orders are affirmed. Costs on appeal are awarded to respondent.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.