Conservatorship of Bradsteet

Filed 6/25/07 Conservatorship of Bradsteet CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from orders of the Superior Court for the County of Los Angeles. Thomas C. Falls, Judge. Affirmed.

Stephen E. Bradstreet, in pro. per., for Appellant.

Mariellen Ross, in pro. per., for Respondent.

______________________________________

SUMMARY

The trial court denied a sons petition for the appointment of a conservator for his mother, concluding Maine was the appropriate jurisdiction for the determination of conservatorship matters. Another son, who had objected to the conservatorship petition, appealed from the courts order awarding attorney fees to court-appointed counsel for the mother, contending the court had no jurisdiction over the conservatorship petition and therefore no jurisdiction to award fees. We affirm the order awarding fees to court-appointed counsel.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 2004, Charles S. Bradstreet (Charles S. or husband) filed a petition for appointment of a probate conservator of the person and estate of Winifred M. Bradstreet, his wife of over 50 years. The petition requested findings and orders that Winifred was legally incapacitated from filing for divorce and signing documents such as the grant of a power of attorney and contracts for purchase and sale. The petition asserted that Winifred had been incapacitated since June 2002, when she was residing with her husband. Winifred then went to visit her eldest son, Stephen Bradstreet, in Maine in 2002, and had been kept from visiting the family independently since that date . . . . Other allegations included that Winifred did not have the capacity to make a change of residence; Stephen had taken control of Winifred, who had signed a power of attorney giving him authority over assets; Stephen attempted unsuccessfully to file for divorce in Maine on behalf of Winifred; and a petition for dissolution had been filed in Los Angeles, which Winifreds husband believed was a continuance of Stephens efforts to obtain assets from his parents trust, which included most of Winifreds assets.[1]

On December 2, 2004, Mariellen Ross was appointed as Probate Volunteer Panel (PVP) attorney for Winifred, under the authority of Probate Code section 1470. Section 1470 permits the appointment of private legal counsel for a proposed conservatee if the person is not otherwise represented by legal counsel and the appointment would be helpful to resolve the matter.[2] (Prob. Code, 1470, subd. (a).) Later that month, Winifreds husband died. On February 3, 2005, Winifreds second son, Charles E., filed an amended petition to appoint a conservator of his mothers person and estate. The petition made allegations similar to those in the husbands petition. It also alleged that before Winifred went to Maine in 2002, she had been diagnosed with dementia, and her mental condition had deteriorated further since that time.

On March 10, 2005, a hearing was held. Present were petitioner Charles E. and his attorney; objector Bette Brown (Winifreds daughter); James Morris, an attorney appearing for Winifred; and a representative of the court-appointed PVP attorney for Winifred. The PVP representative questioned whether the proposed conservatee had capacity to hire independent counsel. The court was advised that Winifred was living in Maine, where another conservatorship proceeding was pending. Winifreds daughter asserted her brother Charles E. has tried to abduct my mother and had absconded with, for the last few months, all of the rent money from properties in Winifreds trust; her brother Stephen had provided for Winifred for the last several years; and Winifred was, as the trial court summarized it, basically competent and could do what she needs to do. The court observed that all Im getting now are the siblings, all the children saying this is whats going on, and that it would like to hear from Winifred, through PVP counsel who is independent from all these gentlemen and all these people and who I appointed to represent [Winifred] so I can get feedback as to whats going on.[3]Winifreds counsel said that [w]e will do the best we can to have her speak by telephone with Ms. Ross [PVP counsel], and [i]n fact, it might be helpful if we could put Ms. Ross in touch with her court-appointed counsel in Maine. The matter was then continued, the court observing I want to know whats going on in Maine.

On April 26, 2005, Winifreds counsel (Morris) filed a certified copy of temporary letters of conservatorship issued to Stephen and Bette by the Maine probate court, along with the report of Winifreds court-appointed guardian ad litem in Maine. Counsel also filed declarations from a psychologist, a speech-language pathologist and two caregivers, attesting to Winifreds general competency and describing her language impairment problems resulting from a stroke.

On May 10, 2005, PVP counsel Ross filed her third report and a supplemental request for fees.[4]Rosss report described an extensive telephone conversation with Winifreds guardian ad litem in Maine and concluded it would be appropriate that she be relieved as Winifreds counsel.[5] She sought total fees of $4,600.00 and requested discharge as counsel.

On May 12, 2005, Stephen, as Winifreds attorney-in-fact, moved to dismiss Request for Attorney fees for lack of jurisdiction and non-conformance to code, and moved to dismiss the conservatorship petition for lack of personal and/or subject matter jurisdiction. The motions were scheduled for hearing on July 14, 2005.

Also on May 12, 2005, the court held a previously scheduled hearing on Charles E.s conservatorship petition. All three children attended, as did counsel for Charles E., counsel for Winifred, and PVP counsel Ross. After hearing from everyone present, the court observed that Maine had accepted and exerted jurisdiction by issuing temporary conservatorship orders, and concluded: Im going to let Maine take it. Im going to deny the request and dismiss the proceedings for lack of jurisdiction. And if Im wrong, Im sure an appellate court will tell me so. I dont believe I have jurisdiction to hear anything further in the matter. [] Mr. - - all the Bradstreets can fight this out in Maine. The court also ordered payment of attorney fees to PVP counsel, and counsel for Winifred stated he had no objection to payment to PVP counsel. The court then discharged PVP counsel. The court later issued the following written orders implementing the rulings:

        A June 24, 2005 written order approving $4,600 in attorney fees.

        A July 29, 2005 written order denying Charles E.s petition for appointment of a conservator due to lack of jurisdiction; denying Stephens motions to dismiss filed on May 12; and discharging Ross as PVP counsel for Winifred.

Stephen moved to reconsider and/or vacate the July 29, 2005 order, arguing it was void in part and the request for attorney fees should have been dismissed for lack of jurisdiction in the underlying matter. The motion was denied on November 23, 2005, and Stephen filed a notice of appeal on December 21, 2005.

DISCUSSION

Stephen contends that because the trial court did not have jurisdiction to hear the conservatorship petition, it lacked jurisdiction to grant the court-appointed attorneys request for fees, rendering the fee order void. Stephen is mistaken.

Lack of jurisdiction fundamentally  means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.  (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, citation omitted.) When a court lacks jurisdiction in this fundamental sense, an ensuing judgment is void. (Ibid.) This is not such a case. The court had full authority over the subject matter of this case: a petition was filed by California residents requesting the appointment of a conservator for their wife and mother. The courts eventual conclusion after reviewing the contradictory claims of the siblings and the reports of the attorney appointed by the court to provide a neutral view of the matter was that Maine was the appropriate jurisdiction to decide matters relating to the proposed conservatorship. The courts statement that it did not have jurisdiction to hear anything further in the matter does not mean it lacked fundamental jurisdiction to hear the conservatorship petition and to make appropriate orders in connection with it. That is exactly what the court did.[6]

Stephen also argues the trial court lacked jurisdiction to appoint counsel for Winifred because Winifred was represented by counsel of her own choosing at all proceedings of the conservatorship matter . . . , and the Probate Code specifies counsel may be appointed if the court determines the person is not otherwise represented by legal counsel . . . . (Prob. Code, 1470, subd. (a).) However, PVP counsel was appointed shortly after the petition was filed and before any hearings at which other counsel for Winifred appeared.[7] More importantly, an issue clearly existed as to whether Winifred had the capacity to retain counsel in the first place. Consequently, the court had the authority to appoint counsel, and did not err in doing so. Indeed, it is difficult to avoid the conclusion the court would have been remiss in failing to do so.[8] In short, the court had jurisdiction to appoint counsel and, having done so, was required to fix a reasonable sum for counsels compensation and expenses. (Prob. Code, 1470, subd. (b).)

DISPOSITION

The orders are affirmed. Mariellen Ross is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

[1] Winifreds husband and son Charles E. also filed a petition for the appointment of a conservator in October 2002. On March 7, 2003, the court granted Winifreds motion to quash service of the petition, finding it lacked jurisdiction. When the husband filed the petition that generated this appeal (which apparently occurred after Winifred filed a petition for dissolution in California), the matter was consolidated with the proceeding initiated in October 2002.

[2] The court may appoint private legal counsel for . . . a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the persons interests. (Prob. Code, 1470, subd. (a).)

[3] The court also observed, when Winifreds daughter indicated Winifred had representation and did not need PVP counsel, that [i]f she [PVP counsel] doesnt talk to your mother, I will take that into consideration in considering whether or not shes [Winifreds] being hidden and held.

[4] Ross filed her initial petition for fees on April 5, 2005, requesting fees of $3,800.

[5] The report of her conversation with the Maine guardian ad litem, Richard Cleary, indicated that at the time of Clearys March 26, 2005 report, his opinion was that Winifred lacked the capacity to retain counsel, but that he had no opinion as to her level of capacity even two weeks prior to that time.

[6] The cases Stephen cites Branson v. Nott (9th Cir. 1995) 62 F.3d 287, 292-293 and Cliburn v. Police Jury Assn of Louisiana, Inc. (5th Cir. 1999) 165 F.3d 315, 316 stand for the proposition that a trial court without subject matter jurisdiction over a matter may not award attorney fees to the prevailing defendant. These cases are inapposite because the trial court in this case had subject matter jurisdiction over the conservatorship petition.

[7] Stephen states in his reply brief that Winifred was represented by counsel Carlos Cabrera at the initial hearing Dec. 1, 2004 . . . . There is no evidence in the appellate record or in the superior courts case summary showing Cabreras presence. However, even if we assume, as Stephen tells us, that Cabrera (who was apparently Winifreds counsel in her dissolution action) was present at the December 1 hearing, there is no evidence or suggestion that he entered an appearance in the proceeding on Winifreds behalf.

[8] Stephen makes several other arguments, including that the amended petition for conservatorship was procedurally defective and therefore void, because it was not signed by the original petitioner (Winifreds husband, who was then deceased); the parties were not served with the order appointing counsel under Code of Civil Procedure section 664.5 (notice of entry of judgment); and the June 24, 2005 and July 29, 2005 orders were not properly served under Code of Civil Procedure section 664.5. Assuming any procedural deficiencies occurred, Stephen has not been prejudiced by them; they do not render the orders he has appealed void; and his arguments are otherwise without merit.