In the Interest of Neher v. Neher
2015 Colo. App. LEXIS 1139
Colo. Ct. App.2015Background
- Father (Galen Neher) wired nearly $500,000 in multiple transfers to anonymous offshore accounts after receiving unsolicited solicitations; Son (Christopher Neher) petitioned for a conservatorship.
- Court initially appointed a special conservator, later Deputy Public Administrator Ronald Servis; Father was appointed counsel and underwent at least one psychological evaluation (Dr. Kaye) whose report concluded conservatorship was not required.
- Parties orally stipulated in January to limited monitoring and restrictions for one year, but they could not agree on a written stipulation; Father sought enforcement of the oral agreement and the court denied enforcement.
- Son disclosed CPA Gregory Taylor as an expert on the eve of trial; Father moved to strike but did not request a continuance; the court admitted Taylor's testimony along with Dr. Kaye's and other evidence.
- The trial court found by clear and convincing evidence under Colo. Rev. Stat. § 15-14-401(1)(b)(I) that Father was unable to effectively receive or evaluate information and under (II) that his property would be dissipated, and appointed a permanent conservator; Father moved for a new trial and recusal and appealed.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Son) | Held |
|---|---|---|---|
| Whether § 15-14-401(1)(b)(I) requires medical evidence/expert testimony before appointing a conservator | Statute requires medical evidence showing impairment; conservatorship cannot be imposed absent such medical proof | Statute does not mandate medical evidence; the General Assembly omitted any such requirement and other provisions permit non-medical proceedings | No. Court holds statute does not require medical evidence; omission of medical-language and related provisions indicates no such requirement |
| Whether the trial court erred by refusing to enforce the oral January stipulation | The oral stipulation was binding and should have been enforced to return control to Father | Parties disputed essential/ambiguous terms and Father acted contrary to the stipulated restrictions, so no enforceable agreement existed | No reversible error. Court found material disputes and conduct contrary to stipulation justified denying enforcement and proceeding to hearing |
| Whether allowing late disclosure/testimony of CPA Taylor required a new trial | Late expert disclosure deprived Father of ability to rebut and violated disclosure rules; trial unfair | Admission was within court's discretion; Father did not seek a continuance so any potential prejudice was waived | No. Admission troubling but not reversible because Father failed to request continuance; no prejudice found requiring reversal |
| Whether evidence was sufficient (clear and convincing) to appoint a conservator | Without medical evidence, the proof was insufficient to meet clear-and-convincing standard | Uncontroverted record of repeated suspicious offshore transfers, Father's invocation of Fifth, and other facts supported inference he could not evaluate information | No. Court finds sufficient non-medical evidence to support the conservatorship; findings not clearly erroneous |
Key Cases Cited
- Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585 (Colo. 2005) (statutory interpretation reviewed de novo)
- Farmers Grp., Inc. v. Williams, 805 P.2d 419 (Colo. 1991) (give words their plain and ordinary meaning)
- Wells Fargo Bank, Nat'l Ass'n v. Kopfman, 226 P.3d 1068 (Colo. App. 2010) (apply clear statutory language as written)
- Shelter Mut. Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651 (Colo. 2011) (legislative omission can indicate intent)
- Grover v. Indus. Comm'n of Colo., 759 P.2d 705 (Colo. 1988) (deletion of statutory language alters legislative intent)
- Todd v. Bear Valley Village Apartments, 980 P.2d 973 (Colo. 1999) (trial court must consider prejudice and excuse when admitting untimely expert disclosures)
- Wright Farms, Inc. v. Weninger, 669 P.2d 1054 (Colo. App. 1983) (finder of fact decides witness credibility and weight of evidence)