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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Farmer v. Farmer (3/19/2010) sp-6465
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ROBERT L. FARMER, | ) |
| ) Supreme Court No. S- 13330 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07- 0017 PR | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| BARBARA FARMER, | ) No. 6465 - March 19, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Martin A. Engel, Office of
Public Advocacy, Anchorage, for Appellant.
Barbara Farmer, pro se, Anchorage.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A probate master appointed a temporary limited
conservator for Robert Farmer. The conservatorship was reviewed
the following year; the probate master held a hearing, found that
Robert was incapacitated, and recommended that his daughter be
appointed partial limited conservator. The superior court
considered the matter de novo and ultimately adopted the probate
masters findings and recommendations. Robert appeals, arguing:
(1) the evidence does not support the need for appointment of a
conservator; (2) the court failed to make a necessary finding for
the appointment of a conservator; and (3) the conservatorship
order is not the least restrictive alternative. Because its
findings are sufficiently complete and not clearly erroneous and
because it did not abuse its discretion in fashioning the
conservatorship order, we affirm the superior courts decision.
II. FACTS AND PROCEEDINGS
Robert Farmer resides in Anchorage. He has four
children, including daughters Barbara and Anita. Robert worked
for the State of Alaska but his employment was terminated in
January 2005. He filed suit against the State for wrongful
termination, and also filed suit against other government
entities. Approximately one year later Robert fell behind on his
mortgage payments. To avoid foreclosure Barbara and Jennifer
Farmer Barbaras mother and Roberts wife borrowed money from
Jennifers sister to make the mortgage payments, and Barbara also
began to pay for Robert and Jennifers utilities.
During the summer of 2006 Robert worked temporarily as
a surveyor. In December 2006 Jennifer died and the home was
again in danger of foreclosure. Barbara made additional mortgage
payments to avoid foreclosure.
In January 2007 Barbara filed a petition for
appointment of a guardian and conservator for Robert to protect
Roberts home from foreclosure. Barbara continued to pay Roberts
utilities during the spring and summer, even though foreclosure
proceedings began in March and the foreclosure auction was
scheduled for August.
The probate master held a hearing in August 2007 and
found that Robert was unable to manage his property and affairs
effectively and his home would be wasted or dissipated absent
management by a conservator. The probate master appointed Anita
temporary limited conservator for six months. As temporary
limited conservator Anita was allowed only to sell Roberts home
to Barbara and to manage the sale proceeds. Robert was allowed
to reside in the home for at least one year after Barbara
purchased it, with the mortgage payments for that year to be paid
from the sale proceeds.
As it turned out, Anita conveyed Roberts home to
Barbara in December 2007 with Barbara assuming the existing
mortgage; the plan was to repair and market the home for sale,
with the proceeds providing for Roberts future housing needs.
Barbara began making improvements to market the home, but Robert,
who continued to live in the home, often interfered with her
efforts.
In March 2008 Barbara petitioned the superior court to
review the conservatorship. The probate master held a hearing in
August 2008. Barbara testified that she paid for Roberts
utilities for almost two years, acquired food stamps and heating
assistance for Robert and two younger siblings living in the
home, and made mortgage payments to avoid foreclosure. She
testified that she and her siblings had rented an apartment for
Robert but he was unwilling to move into it. She stated that
Robert has an inability to prioritize his financial obligations
and spends money in an irrational way; for example, although he
did not pay his phone bill, Robert bought electronics, engaged in
unnecessary home-improvement projects, and spent money on
alcohol, tobacco, and his lawsuits. According to Barbara, Robert
refused to apply for disability benefits for fear that doing so
would harm his lawsuits. In her closing comments to the probate
master Barbara stated [w]e are 100% unable to market the home
while [Robert is] in it.
Robert then testified, claiming he used his retirement
benefits to pay for utilities, his mortgage, and his wifes
medical expenses. Robert stated he had applied for multiple
state and federal assistance programs. He also testified he has
a claim pending from the Exxon Valdez oil spill.
The court-appointed visitor1 filed a report, noting
that Robert displayed poor judgment regarding his funds and
concluding that he was in need of a conservator. The court
visitor emphasized that Roberts employment as a surveyor was
seasonal. She also noted that a 2005 Veterans Administration
evaluation was the only medical information available because
Robert refused further evaluation.
The probate master found Robert was incapacitated to
the extent that he cannot effectively manage important financial
matters and related decision making. The probate master noted
Roberts refusal to consent to psychological or neurological
testing, obsession with the notion that the State of Alaska is
persecuting him, abuse of alcohol, engagement in a series of
expensive and time-consuming lawsuits against the State, and
unwillingness to attend to important financial matters. The
probate master also found Robert exhausted his retirement
accounts after a short time and failed to pay utilities and other
expenses. The probate master determined [i]t is clear that Mr.
Farmers ability to make decisions and manage important financial
matter[s] is significantly impaired by his apparent cognitive
limitations and long time pattern of conduct.
The probate master recommended that Barbara be
appointed partial limited conservator, with the authority to
repair and market the home, locate and arrange substitute housing
for Robert, and manage the net proceeds of the homes sale for
Roberts future housing needs. The probate master also
recommended that the appointment terminate in one year unless
extended by the court, and that Robert vacate the property by
October 1, 2008.
The superior court exercised its discretion to conduct
a hearing de novo.2 The court visitor testified at the hearing
and agreed with the probate masters findings, emphasizing Roberts
lack of steady income. Barbara testified about the events
leading to the foreclosure and her purchase of the home. She
described the repairs she made to the home and Roberts resistant
behavior. She expressed concern that Robert was then unemployed
and attributed Roberts monetary problems to his spending on the
lawsuits, alcohol, electronics, and unnecessary home-improvement
projects.
Robert also testified at the hearing. He described his
employment history and the lawsuits he had filed against the
State and other government entities. He denied mismanaging his
funds. Robert admitted drinking beer and wine daily but denied
abusing alcohol.
The superior court ultimately approved the probate
masters findings3 and adopted the probate masters
recommendations, except that the date Robert was to vacate the
home was changed to November 1, 2008.
Robert appeals.
III. STANDARD OF REVIEW
We review the appointment of a limited guardian or
conservator for abuse of discretion.4 A court abuses its
discretion if it considers improper factors, fails to consider
statutorily mandated factors, or assigns too much weight to some
factors.5 In reviewing factual findings used to determine
whether to appoint a conservator, we apply a clearly erroneous
standard.6 Clear error is found when we are left with a definite
and firm conviction based on the entire record that a mistake has
been made.7 We review a finding of incapacity for clear error.8
IV. DISCUSSION
Robert raises three issues on appeal. First, he argues
the evidence does not support the need for a protective
appointment under AS 13.26.165(2)(A). Second, he argues the
court did not make a necessary finding under AS 13.26.165(2)(B),
which mandates that for a conservatorship order a court must find
the person has property which will be wasted or dissipated unless
proper management is provided, or that funds are needed for the
support, care and welfare of the person . . . . Third, he argues
the court did not fashion the least restrictive protective order
as required by AS 13.26.195(d).
A. The Evidence Supports a Protective Appointment Under AS
13.26.165(2)(A) and (B).
Alaska Statute 13.26.165(2) permits a court to appoint
a conservator if the court determines:
(A) the person is unable to manage the
persons property and affairs effectively for
reasons such as mental illness, mental
deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic
intoxication, confinement, detention by a
foreign power, or disappearance; and
(B) the person has property which will be
wasted or dissipated unless proper management
is provided, or that funds are needed for the
support, care and welfare of the person or
those entitled to be supported by the person
and that protection is necessary or desirable
to obtain or provide funds.[9]
1. Incapacity under AS 13.26.165(2)(A)
Robert argues the evidence presented does not support
the superior courts finding of incapacity under AS
13.26.165(2)(A). We disagree.
Barbara introduced ample evidence of Roberts inability
to prioritize his finances, even when he fell behind in paying
his bills and his home was on the verge of foreclosure. She
established that Robert misallocated his funds by purchasing ink
for his printer, painting the exterior of his house, spending a
significant amount on alcohol and tobacco, and dwelling
obsessively on his lawsuits. She also demonstrated that, in
refusing to apply for disability benefits for fear that doing so
would harm his lawsuits, and in focusing on his lawsuits instead
of finding steady work, Robert did not take steps to remedy his
financial problems. And substantial evidence supports the courts
finding that Barbara has reliably and selflessly labored to keep
the Farmer family financially afloat through a very difficult
time.
Other evidence and considerations also support the
superior courts decision. First, the court did not simply affirm
the probate masters recommendations in summary fashion; rather,
it conducted a hearing de novo and heard testimony from both
parties. Second, Roberts own testimony provided the court an
opportunity to gauge Roberts reasoning abilities relating to his
financial situation and supported the courts finding of
incapacity.10 Robert not only testified with frequency and at
length about his lawsuits, but also claimed that the government
had tried to poison him. Third, the court visitors testimony, as
well as the report she submitted, reinforced Barbaras evidence
that Robert was in need of a conservator.
Robert argues it was clear error for the court to find
incapacity based on his pursuit of lawsuits . . . because there
was no evidence that his pursuit of these suits was an
inappropriate dissipation or waste of his financial resources and
there was no evidence that he chose to finance lawsuit expenses
instead of paying his mortgage. But the court relied on Roberts
fixation with the lawsuits and neglect of his financial situation
not the mere fact of the lawsuits themselves as part of its
basis for finding Robert to be incapacitated. The court properly
relied on this factor even if, as Robert argues, the suits have
some merit, the suits might be handled on a contingency basis,
and the exact amount that Robert spent on the lawsuits was
unknown.
Robert challenges evidentiary inferences that he abuses
alcohol to the point of incapacity or cognitive impairment,
arguing that [t]here was certainly no evidence of chronic
intoxication as required for a protective appointment under AS
13.26.165(2)(A). But the statute does not require a finding that
alcohol abuse amount to chronic intoxication or alone is
sufficient to establish incapacity.11 The court may find alcohol
abuse even if that abuse falls short of chronic intoxication to
be one factor among many others leading to its conclusion that an
individual is incapacitated and in need of a conservator. The
evidence presented supports the courts finding that Robert abuses
alcohol: Robert drinks every day, sometimes falls asleep with a
drink in his hand, and spends a significant amount on alcohol.
Robert argues that it was clear error for the court to
find he refused to attend to important financial matters because
[h]is testimony . . . shows that he tended to his financial
matters with every resource he could. But Barbara and Anita both
disputed much of Roberts testimony that he had sufficiently
attended to his financial obligations after he stopped working
for the State. Although Robert may have made some effort in the
past to attend to his financial obligations including providing
for his ill wife given the conflicting evidence we cannot
conclude the court erred in making its finding.12
Robert argues it was clear error for the court to find
that [h]e exhausted his retirement accounts after a short time.
He acknowledges that some evidence exists for this finding but
contends Barbara could not provide any specific details, or even
rough approximations about how he spent his retirement funds.
Although she did not know how much money was in Roberts accounts,
Barbara testified that Robert withdrew all his retirement funds
at once and made poor spending decisions, including painting the
outside of his house, obsessively pursuing his lawsuits, pouring
concrete in the garage, and purchasing printers and ink. She
further testified that the funds were depleted in approximately
one year. This testimony is sufficient to support the courts
finding.
Robert also contends the finding that utilities and
similar expenses went unpaid . . . is not a proper basis for a
conclusion that [he] suffers from an incapacity and cognitive
limitation. Here Robert does not seem to be challenging the
basis of the courts factual finding, but rather the inference
that such a finding evidences incapacity. But capacity to
perform routine activities may be relevant in evaluating whether
appointment of a conservator is appropriate,13 and because the
payment of utilities and similar expenses is a routine household
activity, the court did not err in considering this factor.
Relying on AS 13.26.109(a),14 Robert also challenges the
courts finding that he refused to be medically evaluated and that
this refusal could lead to an inference of incapacity. Although
the court mentioned Roberts refusal to be evaluated, it does not
appear the court relied on this fact in determining whether
Robert was unable to manage his finances. Because the evidence
is otherwise sufficient to support the courts ultimate finding of
incapacity, we do not need to consider application of the statute
in this case.
Substantial evidence supports the superior courts
finding of incapacity under AS 13.26.165(2)(A), and therefore it
is not clearly erroneous.
2. Property under AS 13.26.165(2)(B)
Robert argues the superior court erred by not expressly
finding under AS 13.26.165(2)(B) that a conservator was necessary
to prevent dissipation of his assets.15 He goes on to argue that,
even if the court did make the necessary finding, it is not
supported by the evidence.
As noted above, the superior court adopted the findings
of the probate master. The probate master, in recommending that
Barbara be appointed partial limited conservator, did not
expressly find that the residence or the proceeds from its sale
would be wasted or dissipated unless a conservator was appointed.
But the finding is implicit in the probate masters determination
that Roberts ability to make decisions and manage important
financial matter is significantly impaired and that [t]he most
important and pressing financial issue is [the] sale of the
family residence.
Robert also argues the court erred in failing to find
that assets would be wasted or dissipated if [he] was not ordered
to vacate his home while it is marketed for sale and that he must
be removed from his home in order to sell the home and obtain
funds for his care. This argument confuses the decision to
initially appoint a conservator with the scope of the
conservatorship. Alaska Statute 13.26.165(2)(B) does not require
the court to find that Roberts assets would be wasted unless he
was ordered to vacate his home or that obtaining funds for his
care mandated his removal.
Additionally, Robert contends the evidence does not
support a finding that he resisted efforts to sell the home. But
Barbaras testimony supports the courts finding she testified
that Robert refused to move into the apartment that she and her
siblings rented for him and that he impeded the home inspection
process. She also described how Robert locked several doors
within the home when a realtor arrived, followed the realtor
throughout the home, and stated repeatedly that the home was not
for sale. The court was not obliged to accept Roberts testimony
that he would begin to cooperate with a plan to sell the home.16
We therefore reject Roberts argument that the court
failed to make the finding required by AS 13.26.165(2)(B).
B. The Court Did Not Abuse Its Discretion in Entering the
Limited Protective Order.
Robert argues the courts decision did not comply with
AS 13.26.195(d), which provides in part that [a] conservator may
be appointed only if a less restrictive protective order or the
services of a special conservator are not adequate to protect the
estate of the protected person.17 It appears Robert does not
contest the sale of the home, only his removal from the home and
the subsequent management of the sale proceeds. He claims the
court should have allowed Barbara to market the home for sale
while he remains in the home with the right of first refusal to
purchase the home. Robert also argues [t]here is not a proper
basis for issuing an order granting Barbara Farmer the authority
to make decisions regarding Robert Farmers housing prior to, or
subsequent to the sale of his home. He reiterates that the
evidence does not support a finding that he cannot manage his
financial affairs.
The probate master expressly considered the
intrusiveness of his decision and for that reason limited
Barbaras power. We cannot conclude it was an abuse of discretion
to mandate that Robert vacate the home in light of the evidence
that Robert interfered with Barbaras efforts to sell the home.
And evidence of Roberts inability to attend to his financial
obligations supports both the grant of authority to assist Robert
with his housing and the post-sale management of Roberts money.
V. CONCLUSION
We AFFIRM the superior courts decision in its entirety.
_______________________________
1 AS 13.26.106(c) requires court appointment of a visitor
in conservatorship proceedings and that [t]he visitor shall
arrange for evaluations to be performed and prepare a written
report to be filed with the court . . . . The visitor shall
interview the respondent . . . . The visitor shall conduct the
interviews and investigations necessary to prepare the report . .
. .
2 See Alaska R. Probate 2(f) (stating that superior court
may conduct hearing de novo after probate master makes report and
recommendations).
3 See Alaska R. Civ. P. 52(a) (The findings of a master,
to the extent that the court adopts them, shall be considered as
the findings of the court.); Alaska R. Probate 2(e).
4 Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004)
(citing H.C.S. v. Cmty. Advocacy Project of Alaska, Inc., 42 P.3d
1093, 1096 (Alaska 2002)). But see In re S.H., 987 P.2d 735, 738-
41 (Alaska 1999) (applying clearly erroneous standard to
determine whether it was appropriate to appoint conservator).
5 H.C.S., 42 P.3d at 1096 (citing S.N.E. v. R.L.B., 699
P.2d 875, 878 (Alaska 1985)).
6 Gunter, 87 P.3d at 68 (citing In re S.H., 987 P.2d at
738-41); see also Alaska R. Civ. P. 53(d)(2).
7 Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska
2004) (citing Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001)).
8 In re W.A., 193 P.3d 743, 748 (Alaska 2008) (citing
Casey, 92 P.3d at 382).
9 AS 13.26.165(2).
10 See Dodson v. Dodson, 955 P.2d 902, 907 (Alaska 1998)
(quoting Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)) (We
will generally accept the determination of witnesses credibility
that are made by the court as a trier of fact, since the court
heard and observed the witnesses first hand. ).
11 See AS 13.26.165(2)(A) (providing that a court may
appoint a conservator if it finds that the person is unable to
manage the persons property and affairs effectively for reasons
such as . . . chronic intoxication.) (emphasis added). In a
previous decision regarding AS 13.26.165 we declined to read
additional requirements into the statute: We must look to the
statute to determine its requirements. It does not express or
imply a requirement of long term inability; it only specifies
that property be in danger of waste or dissipation. In re S.H.,
987 P.2d at 740 (footnote omitted).
12 See Estate of Smith v. Spinelli, 216 P.3d 524, 528
(Alaska 2009) (quoting Peterson v. Ek, 93 P.3d 458, 463 (Alaska
2004)) (noting that it is the province of the trial court to
. . . weigh conflicting evidence ).
13 Cf. In re S.H., 987 P.2d at 740 (observing that an
ability to function at some level, perhaps around the house bears
on need for conservator).
14 AS 13.26.109(a) (A ward or respondent has the right to
refuse to respond to questions in the course of examinations and
evaluations. However, the ward or respondent may be required to
submit to interviews for the purpose of ascertaining whether the
ward or respondent lacks the capacity to make informed decisions
about care and treatment services.).
15 Under AS 13.26.165(2)(B) a court may appoint a
conservator only if it finds the person has property which will
be wasted or dissipated unless proper management is provided, or
that funds are needed for the support, care and welfare of the
person or those entitled to be supported by the person and that
protection is necessary or desirable to obtain or provide funds.
Failure to make an express finding satisfying subsection (2)(B)
does not require automatic reversal. We review such errors for
harmlessness. See In re S.H., 987 P.2d at 739 (noting that the
superior court did not make a finding required by subsection
(2)(B) but concluding that any error was harmless in light of the
evidence presented).
16 See In re Estate of Smith, 216 P.3d at 528 (quoting Ek,
93 P.3d at 463) (explaining that the trial court determines
witness credibility).
17 AS 13.26.195(d).
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