In Re the Appointment of a Guardian Ad Litem & Conservator for Watson

96-695
No. 96-695
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
In the Matter of THE APPOINTMENT OF
A GUARDIAN AD LITEM AND
CONSERVATOR FOR LAUREN
WATSON, JAMES WATSON,
HOLLAND WATSON, and DURBIN
WATSON,
Protected Persons.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Micheal F. Lamb, John A. Kutzen, Thueson & Lamb, Helena, Montana
For Respondent:
John C. Hoyt, Hoyt & Blewett, Great Falls, Montana
Submitted on Briefs: April 3, 1997
Decided: June 3, 1997
Filed:
__________________________________________
Clerk
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Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant James Watson (Watson) appeals the decision of the Eighth Judicial
District Court, Cascade County, denying his petition for appointment of himself as
conservator and guardian ad litem, and granting the petition of his ex-wife Tanara
Martin
(Martin) for appointment of herself as conservator and guardian ad litem of the
couplesþ
four minor children (the children). We affirm.
ISSUE
The sole issue presented on appeal is whether the District Court abused its
discretion in concluding that Martin was not subject to an inherent conflict of
interest
between her husband and her children, that would preclude her from serving as the
childrenþs conservator and guardian ad litem.
FACTS
Watson and Martin were divorced in November 1993 and agreed to joint custody
of their four children. In September 1994, Martin married her present husband, Tony
Martin, who is employed by the Willow Creek Ranch (the ranch) in Belt, Montana, as
a ranch manager. Following her marriage, Martin moved with her four children to the
ranch. The ranch, as Tony Martinþs employer, provided housing, utilities, and one-
half
beef a year to the Martin family.
On December 8, 1995, Martin requested that a ranch hand named Brent Wood
(Wood) pick up the children from school in Belt and give them a ride back to the
ranch.
During the trip back, the pickup truck driven by Wood was involved in a one-vehicle
accident which resulted in injuries to all the children. The parties agree that
Wood was
acting within the course and scope of his employment at the time the accident
occurred,
and further agree that the pickup truck in question was owned and insured by the
ranch.
The parties also agree that the ranch has approximately $800,000 of available
insurance
coverage.
The oldest Watson child, Lauren, was most grievously injured in the accident.
Her injuries required her to remain in the hospital for over seven weeks and undergo
at
least nine operations. The medical expenses incurred by her alone have totaled
approximately $200,000 thus far, and she may require additional treatment in the
future
because the accident left her permanently handicapped. Given the nature of Laurenþs
injuries alone, the parties agree that the expenses and damages incurred by the four
children could exceed the limits of the insurance. While no lawsuit has thus far
been
filed, the parties do not rule out the possibility that one may be filed in the
future. Any
such law suit would likely seek to recover damages from the ranch, which directly
employs Martinþs husband and provides to him the home in which the family lives.
In March 1996, Watson petitioned the District Court for his own appointment
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as
guardian ad litem and conservator for the children. Martin opposed his petition and
cross-petitioned for her own appointment. After a hearing, the District Court
concluded
that Martinþs status as the wife of the ranchþs manager did not create an untenable
conflict
of interest which would prohibit her from satisfactorily carrying out her fiduciary
duty
to the children as their guardian ad litem and conservator. The District Court
further
found her to be a better candidate for guardianship and conservatorship based upon
her
long history of involved and loving parenting. It therefore granted her petition and
simultaneously denied Watsonþs petition. Watson appeals, asserting that Martinþs
situation constitutes an inherent conflict of interest which serves, as a matter of
law, to
preclude her appointment as conservator and guardian ad litem.
STANDARD OF REVIEW
This Court will not set aside a district courtþs findings of fact unless the
findings
are clearly erroneous. Rule 52(a), M.R.Civ.P.; Wareing v. Schreckendgust (1996),
930
P.2d 37, 41, 53 St.Rep. 1362, 1364; Interstate Production Credit Assþn v. DeSaye
(1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. This Court will not set aside a
district courtþs conclusions of law unless the conclusions reflect an incorrect
interpretation
of the applicable law. Boreen v. Christensen (1996), 930 P.2d 67, 53 St.Rep. 1450;
Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 898 P.2d 680.
Moreover, we have held that
[s]ubject to statutory restrictions, the selection of the person to be
appointed
guardian is a matter which is committed largely to the discretion of the
appointing court, and an appellate court will interfere with the exercise of
this discretion only in case of a clear abuse.
In the Matter of the Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316,
318 (citation omitted). In reviewing the District Courtþs determination, we will
give
paramount consideration to the best interests of the children. Section 72-5-223,
MCA.
DISCUSSION
Did the District Court abuse its discretion in concluding that Martin was not
subject to an inherent conflict of interest that would preclude her from serving as
the
childrenþs conservator and guardian ad litem?
The parties agree that the potential interests of the children should be
overseen by
a conservator and a guardian ad litem. Section 72-5-410, MCA, lists who may be
considered as a conservator to a protected person. Under 72-5-410(1)(e), MCA, both
parents are equally eligible to petition for conservatorship; neither is, by
statute, favored
over the other. Section 72-1-303, MCA, provides, however, that "orders binding a
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conservator bind the person whose estate he controls," but only "[t]o the extent
there is
no conflict of interest between them or among persons represented[.]" Section 72-1-
303(2)(b), MCA. Finally, 41-5-512, MCA, which provides for the appointment of a
guardian ad litem, states in part: The
court
at any
stage
of a
procee
ding
on a
petitio
n
under
this
chapte
r may
appoin
t a
guardi
an ad
litem
for a
youth
if the
youth
has no
parent
or
guardi
an
appear
ing on
his
behalf
or if
their
interes
ts
conflic
t with
those
of the
youth.
Upon review, we conclude that the District Court did not err in determining
that
Martin does not suffer from a conflict of interest that would preclude her from
serving
as guardian ad litem and conservator to the children. The District Court found that
Martin "would fulfill her fiduciary duties to her children tenaciously, considering
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both
their emotional needs as well as their future financial security." This finding was
supported by Martinþs testimony that she would not hesitate to act in her childrenþs
best
interests, even to the detriment of her husband. Martin further testified that she
recognized that a suit against the ranch likely would be necessary to safeguard the
childrenþs interests.
The evidence presented showed that Martin is an extremely involved and
protective mother who dedicates great time, love and attention to her children. The
evidence also showed that Watson is much less involved in his childrenþs lives. By
his
own admission, the challenges of his career and new marriage have not allowed him to
see the children as often as he would like. For these reasons, Watson does not
exercise
his visitation rights consistently. Martin testified that, at the time of trial,
Watson had
not had their daughters to his home for an overnight visit in more than a year.
Watson contends that the above evidence is largely irrelevant to the
determination
of who should be the conservator and guardian ad litem to the children. We cannot
agree. An argument that the Court should look solely at Martinþs alleged conflict of
interest ignores the District Courtþs responsibility to make a determination which
serves
the best interests of the children.
Watson cites several cases for the proposition that any potential conflict of
interest
should serve to bar an individual from serving as a guardian ad litem or
conservator. See
In the Matter of the Estate of Peterson, (1994), 265 Mont. 104, 874 P.2d 1230; In re
Marriage of Tesch (1982), 199 Mont. 240, 648 P.2d 293; In the Matter of the Estate of
Peter C. (Me.1985), 488 A.2d 468. We do not find these cases persuasive. None
parallel or approximate the admittedly very unique facts presented in the case at
bar, and
none present situations where, as here, the court must give paramount consideration
to
the best interests of the children involved. The District Court decided that the
childrenþs
best interests would be served by the appointment of their mother as their guardian
ad
litem and conservator. Upon review, we determine that the District Court did not
err.
Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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