In Re Guardianship of Marburger
2010 Tex. App. LEXIS 10255
Tex. App.2010Background
- Melissa Marburger is an incapacitated adult; Michael J. Seidelhuber is guardian of Melissa's person; no guardian of her estate has ever been appointed.
- Michael and Melissa's mother Kelly sought to increase Melissa's support in a 2007 suit against Eddie Marburger Jr.; they later filed for divorce.
- In December 2008 Michael sought to resign as Melissa's guardian and proposed Kelly as successor guardian.
- The trial court held a hearing in February 2009; Kelly objected and argued resignation would harm the ward's financial support, while the court sought to ensure Melissa would remain protected.
- On May 14, 2009 the court appointed Janet McCullar Vavra as attorney ad litem under Probate Code §34A to investigate resignation and related proceedings, with fees set and security for costs requested; Michael appealed after the court later ordered substantial ad litem fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appointment of non-certified attorney ad litem | Seidelhuber: ad litem not certified under §647A | Vavra: appointment authorized under §34A | 647A required; appointment reversed |
| Preservation of guardian resignation ruling | Michael timely sought resignation | No ruling thus not preserved under Rule 33.1 | Issue not preserved; overruled |
| Allocation of ad litem fees to guardian | Guardian may not pay ward's ad litem fees; county should pay | Fees taxed as costs; ward's estate or county pays | 665A governs; reverse fee order; remand for proper allocation |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse of discretion standard: court must correctly apply the law)
- Overman v. Baker, 26 S.W.3d 506 (Tex.App.-Tyler 2000) (ad litem fees should be charged to ward's estate or county, not applicant)