O'Keefe v. Muckenfuss

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Pauline J.
O'Keefe in the matter of Pauline T. Muckenfuss, Appellant,

v.

Wendell L.
Muckenfuss, and Thomas D. Muckenfuss III, Respondents.

Appeal From Charleston County

 R. Markley Dennis, Jr., Circuit Court
Judge

Unpublished Opinion No. 2010-UP-350

Submitted June 1, 2010 – Filed July 7,
2010   

AFFIRMED

Dennis James Christensen, of Mt. Pleasant, for Appellant.

Nat B. Benson, Jr, of Mt. Pleasant, for Respondents.

PER CURIAM: Pauline Jane O'Keefe (Daughter) appeals
the circuit court's order affirming the probate court’s orders appointing third
parties as Pauline Muckenfuss's (Mother's) guardian and conservator.  Daughter
argues the probate court erred in finding good cause existed to bypass her
statutorily-designated priority as Mother's attorney-in-fact.  We affirm.[1] 

FACTS/PROCEDURAL HISTORY

Mother is a widow
who has four children, Daughter, and three sons: Thomas (Tommy), Wendell, and
Paul Muckenfuss (Sons).  Daughter was designated as Mother's attorney-in-fact in
October of 2002.  Mother was admitted to the Savannah House, an assisted-living
facility in Charleston, in November of 2002, following hospitalization for
mental illness.

On January 29,
2004, Wendell and Tommy petitioned the probate court to find Mother incapacitated
and to appoint a guardian and conservator.  After a hearing, the probate court
ordered third parties Seniors Choice and First Southeast Fiduciary and Trust
Services, Incorporated, to serve as Mother's guardian and conservator,
respectively.  Daughter appealed to the circuit court, which affirmed. 
Daughter then appealed to this court. 

In an unpublished
opinion, this court held:  "Based
on the language of the applicable statutes, we believe before a probate court
bypasses a person with a statutory priority for the appointment of a
conservator or guardian, it must make a finding of good cause by articulating
its reasons for such a finding."  Muckenfuss v. Muckenfuss, Op. No.
07-UP-361 (Ct. App. filed July 7, 2007).  Because the probate court failed to
make the requisite finding of good cause, we remanded the case to the probate
court for a finding consistent with the statutes.  Id. 

On remand, the
probate court found good cause existed to appoint third parties as Mother's
guardian and conservator due to the friction and divisiveness between Daughter
and Sons, as well as Daughter's lack of communication with Sons.  The circuit
court affirmed.  This appeal followed.

STANDARD OF REVIEW

"[T]he determination of
the standard of review by an appellate court of matters originating in the
probate court is controlled by whether the cause of action is at law or in
equity."  Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155
(Ct. App. 1993).  "To make this determination, the appellate court must
look to the essential character of the cause of action alleged by the
petitioners in the court below."  Id.  "Persons of unsound
mind, like infants, are under the special protection of the courts of equity
with respect to their persons, property, and legal transactions."  Shepard
v. First Am. Mortgage Co., 289 S.C. 516, 518, 347 S.E.2d 118, 119 (Ct. App.
1986); Gaddy v. Douglass, 359 S.C. 329, 333, 597 S.E.2d 12, 14 (Ct. App.
2004) (recognizing an action to set aside
a power of attorney and an instrument revoking a power of attorney on the
ground of a lack of mental capacity sounds in equity); see Dean, 313 S.C. at 259, 437 S.E.2d
at 155 (finding petition to remove personal representative is in equity).  When the
circuit court concurs with the probate court in an equity case, the standard of
review for this court is whether there is any evidence that reasonably supports
the findings of the court below.  Dean, 313 at 260, 437 S.E.2d at
155-56.

The specific choice of who
should serve as guardian and conservator is decided under the probate court's
discretion.  "The matter of a selection of a guardian is within the
discretion of the court, and the appellate court ordinarily will not interfere
unless a clear abuse of discretion is shown."  39 C.J.S. Guardian and
Ward § 28 (2003).  "The selection of a
guardian is a matter committed largely to the discretion of the appointing
court, whose decision will only be interfered with on appeal in the case of an
abuse of discretion."  39 Am. Jur. 2d Guardian and Ward § 38 (2008). 

The relevant statutes in this
case, Sections 62-5-311 and 62-5-410 of the South Carolina Code (2009),
indicate the appointing court has discretion by using the phrases "may be
appointed guardian" and "the court may appoint . . . as
conservator," respectively.  The appointing court will not be overturned absent an
abuse of discretion.  See Patterson v. Cook, 288
S.C. 220, 221, 341 S.E.2d 782, 782 (1986) (interpreting an appointment statute
without priority guidelines). 

LAW/ANALYSIS

Daughter argues the probate
court, and in turn the circuit court, erred in finding good cause to appoint
third parties as Mother's guardian and conservator because Daughter had
statutory priority as Mother's attorney-in-fact.  We disagree. 

Section 62-5-311 states the
order of priority for guardian appointees but provides such priority is
"subject to a finding of good cause by the court."  Similarly, section
62-5-410 sets forth the order of priority for conservator appointees but
allows:  "The court, for good cause, may pass
over a person having priority and appoint a person having less priority or no
priority."  Under both statutes, Daughter, as Mother's attorney-in-fact,
has priority over the third parties appointed by the probate court.  §§
62-5-311(B)(2) & 62-4-410(a)(3). 

Good cause is
defined as "[a] legally sufficient reason.  Good cause is often the burden
placed on the litigant . . . to show why a request should be granted or an
action excused."  Black's Law Dictionary 251 (9th ed. 2009).  "Bitter
dissension between an incapacitated person's family members . . . can justify
appointment of a neutral third party as a guardian."  39 Am. Jur. 2d Guardian
& Ward § 41 (2008). 

At trial, Dr.
Susan Hardesty of the Medical University of South Carolina testified Mother
needed a guardian and conservator.  Dr. Hardesty stated to a reasonable degree
of medical certainty Mother's capacity did not allow her to manage her
resources. 

Dr. Hardesty
testified Mother was paranoid regarding her children's roles in assisting her
with her affairs.  In addition, she stated the object of Mother's paranoia
seemed to shift from the Sons to Daughter.  Dr. Hardesty testified having one
of Mother's children serve as a guardian or conservator

would aggravate [Mother’s] condition in the sense that her
condition is going to proceed as it will independent of those kind of external
forces.  I think she might be more or less angry, depending on where her
paranoid ideation was at the time if someone interacted -- if one of her
children made a decision.  But that's going to be dependent on what the
paranoia is doing at the time. 

The guardian ad
litem recommended having third parties appointed as guardian and conservator
for Mother.  The guardian believed a third party serving as guardian and
conservator would be in the best interest of everyone given the infighting
between Daughter and Sons.  The guardian believed a third party could
circumvent current communication problems, but the animosity between Daughter
and Sons will likely remain regardless of whether a third party is used. 

The guardian
testified:

[Mother] did seem to note and she pointed out very clearly the
friction that is between her children, and she felt like it would be in the
best interest of everybody if there was a third person appointed to take care
of her everyday affairs, throughout the financial matters, because she felt like
that may reduce the friction. 

The guardian
testified Mother fully understood what the roles of the guardian and
conservator would be. 

Dr. Hardesty
first testified any suggestions by Mother regarding who should serve as her
guardian and conservator should be given limited weight, if any.  However, when
questioned by the guardian whether he should put any weight on Mother's recommendation
to him that a third party should be appointed, she stated: 

I certainly would put weight on her opinion that she has the
desire to have a third party to intervene and give it some weight, yes.  I
wouldn't say it would be the overall decision-maker, but, certainly, she's
indicated it to you and she's indicated it to me in a different way. 

Mother had, in
fact, requested Dr. Hardesty intervene in her affairs.  

Paul, Wendell,
and Daughter all testified about the friction between the siblings.  Paul
stated he believed having a third party involved in Mother's care would be best
for everyone.  Wendell also requested a third party's involvement in order to
reduce the infighting in the family and minimize Mother's paranoia towards her
children.  Regarding the friction, Wendell testified Daughter would not allow
him to visit Mother privately on one occasion.  Wendell further testified
Daughter's husband followed him to the airport and behaved suspiciously. 
Daughter acknowledged she has difficulty with Wendell, but maintained she gets
along well with Tommy and Paul. 

In response to
Wendell's statement that Daughter refused to allow him to see Mother, Daughter
stated she suggested Wendell not meet with Mother alone because Mother had not
seen Wendell in years and it would be too shocking for Mother.  According to
Daughter, while Wendell was speaking to Mother that day, a Savannah House
employee informed Daughter that Mother's whole body was shaking. 

The guardian, Dr.
Hardesty, Paul, and a Savannah House employee all testified Daughter has taken
good care of Mother.  However, the statutes do not require a finding of wrong-doing
by the person with priority.  They simply require good cause to by-pass the
person with priority.  The record also contains evidence Daughter failed to
communicate with her brothers concerning Mother's care.  Paul testified he had
to call the police to discover the location of Mother when Daughter moved her
to Savannah House because Daughter failed to notify him of the move.  Daughter
explained she had told Tommy about the move and assumed he would tell their
other brothers.  In addition, Daughter acknowledged that because she does not
get along with Wendell, she has only called him twice during the years she has
held Mother's power of attorney.  Daughter testified she did not tell her brothers she had the power
of attorney because Mother requested she not tell them. 

The probate court
found Daughter made an unsatisfactory showing that she could fulfill the duties
of a guardian and conservator, which include communicating with family members
regarding any type of placement and any major medical issues.  We hold the
record contains evidence to support this finding and the probate court's ruling
that good cause exists to by-pass Daughter's priority in the appointment of
Mother's guardian and conservator.  Therefore, under our standard of review, we
must affirm the probate court. 

AFFIRMED.

HUFF, SHORT,
and WILLIAMS, JJ., concur. 

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.