*1 Guardianship In the Matter of the and Protective Placement of Carl F. S.: S., Appellant,
v. B.,
Frank Respondent. Appeals Court of No. 99-3012. Submitted on November 2000. Decided briefs March 2001 WI App (Also 330.) reported in 626 N.W.2d *2 appellant, On behalf of the the cause was submit- ted on the briefs of Reinhart, Richard P. Carr of Boerner, Deuren, Van Rieselbach, Norris & S.C. of Milwaukee. respondent,
On behalf ofthe the cause was submit- ted on the Laabs, brief of Mark C. Skolos of Skolos & Millis, LLP of Black River Falls. Dykman, Deininger
Before P.J., and Leineweber, JJ.1 daugh-
¶ 1. DYKMAN, S., P.J. Carla Carl S.'s appeals ter, from an order her father's *3 guardian to terminate Carl's life lease of his home. She complains process of a lack of due in the hearing, that the trial court's reasons for its order were insufficient, and that the trial court failed to consider property other alternatives for the other than termina- tion of the life lease. The contests Carla's substantive assertions and asserts that she does not standing bring appeal. have this We conclude that standing, Carla does have appeal, both the trial court and on by failing and that the trial court erred to con- terminating sider other alternatives to Carl's life lease agreement. We therefore reverse and remand for fur- proceedings. ther
¶ 1991, wife, In Genevieve, Carl and his deeded home to three their their children and a grandchild. contemporaneous The deed was with a lease, in which Carl and Genevieve leased the home for Judge sitting by special Circuit Edward E. Leineweber is assignment pursuant Exchange Program. to the Judicial year plus per insurance, utilities, and taxes,
one dollar repairs. life- Carl and Genevieve's The lease was for they assign provided or sublease could times, and of their landlords. the consent without 1993, and Carl continued died in 3. Genevieve living he suffered home until when in the nursing requiring hospitalization, care, home stroke guard- ultimately, guardianship. In Carl's petitioned for an order the circuit court ian in a certain interest "termination of the Ward's wanting guardian gave this The reason lease." prem- disposition reside at the Carl did not was that obligated pay estate real ises, was Although property. and insurance on taxes guardian (1997-1998)2 § as 880.19 cited WlS. STAT. why gift explain authority petition, he did not for his only contemplated, §880.19 authorizes when was exchanges. mortgages, pledges, leases, or sales, addressing merits of Carla's 4. Before guardian's argument appeal, must consider the standing bring appeal. He this does Carla lacks dispute court, in the trial but that Carla had hearing does not. At the on that on she asserts questioned guardian's petition, the court Carla's ultimately petition. The court to contest the Carla's attor that Carla had after concluded person," ney pointed an "interested out that she was 880.01(6) an adult relative of as defined Wis. from the The court then heard evidence the ward. *4 paying guardian, taxes and testified that he was who home, had never associated with the but other costs testified that Carl wanted tried to rent the home. Carla nursing if care, whereas home, return with skilled 2 are to the Statutes All references Wisconsin unless otherwise noted. 1997-98 version
608
possible.
sold,
the home were
that would not be
The
possibility
renting
trial court did not address the
or
selling
gifting
Carl's interest in the home instead of
it
grandchild,
to some of Carl's children and his
and con-
expense maintaining
cluded that the
the home when
inappropriate.
granted
it was of no value to Carl was
It
guardian's petition.
appeals.
standing
partici
5. Whether a
has
pate
proceeding
question
in an action or
is a
of law that
Hosp.
we review de novo. Wisconsin
Ass’n v. Natural
Bd.,
Res.
156
688,
Wis. 2d
700,
nonetheless
"standing
sue,"
a trial court con
referred
as
often
cept.
County
e.g.,
Bd.,
See,
Sandroni v. Waukesha
(Ct.
1992).
App.
Logic
183, 186, 496
Wis. 2d
N.W.2d
standing
suggests
litigant
a
in a trial
who
ordinarily
standing
appeal.
have
on
There
court would
appeal
appellate requirement
right
an
is
is
by
persons "aggrieved"
judgment
final
or
limited to
a
Mills,
Ford Motor
Co. v.
142 Wis.
order.
Credit
may
person
217,
of interested Section an person petition interested to the court an order property. to sell ward's Sec- may, provides person tion 880.08 that an interested request hearing place circumstances, under some at a proposed may where the there is ward attend. But no right mention in either statute of of an interested person hearing, participate to in the nor directive may specifically that he or she not. Neither statute standing. addresses Carla has And this whether is a dozen unremarkable. Fewer than statutes address standing.3 Standing, commonly therefore, dis- is most concept. cussed as a common law gives example, nonprofit For Wis. Stat. 184.07 associa § standing tions under some circumstances. And WlS. STAT. 867.02(2) for sum- gives persons petition certain to § given persons explicitly not are Interested language
participation Wis. yet, Bryn, § inter that under an 880.08. And know person an issued has ested pursuant § § iden WISCONSIN STAT. 880.19 is to 880.08. persons. The interested tical guardian in its treatment explain why an does not interested pursuant order issued an Bryn pursuant § 880.08 but not one issued 880.19. authority opposite persuasive true. is upon Coston, 222 Wis. 10. The relies Carla did have the 20-21, 2d at to conclude that right present witnesses, cross-examine present evidence, or trial, demand a to raise eviden- *7 overreading tiary objections hearing. at the This is an Coston, here, noted in as that of Coston. While we we do persons provided for demand a no statute interested to present evidentiary objections, evidence, trial, or raise we also said: however, conclude, not to circuit
This is that allowing for partici- courts are foreclosed from the persons. interested the facts pation Depending of on case, circumstances and of could given court very participation helpful, consider such to be persons could exercise discretion to allow interested participate to to the extent it would deem appropriate.4 number,
mary assignment Though an few the estate. leg- conferring standing existence of that the statutes indicates standing, is have concept islature aware of the and could persons standing denied to it to do interested had wished so. 4 ( P., 1, 20-21, 222 2d 52 Joseph Coston v. Wis. 586 N.W.2d 1998), upon County, Ct. relies v. Milwaukee 162 Wis. R.S. Id. at 21. It is therefore within a trial court's discretion an allow interested in a Wis. participate ch. guardianship proceeding. is And what the trial court did here. court The could see no reason why should be excluded from the motion And hearing. indeed, there was no reason. If Carla had been prohibited view, from her the asserting argument she wished make would have been made no one. And that is often true proceedings. Without an party's ability interested protest gift ward's often there would property, be no check on a guardian's failure to the law. follow 197, 209, 470 (1991), "only N.W.2d for its conclusion that ward, litem, proposed the advocacy the ad counsel proposed present for the right ward have the and cross- whether R.S. question examine supports witnesses." We this R.S. proposition. dispute proposed involved between a ward R.S., County, petitioner. a guardianship Milwaukee parties Wis. 2d at 199-200. There were no other interested R.S., dispute involved in and the there concerned whether petitioner proposed ward had providing or the burden of testimony physician report of the whose formed the basis Id. petition. at supreme 208. In that context the said: court 880.33(2)(a)1 logical "We reading conclude a more sec. ward, attorney proposed or ad litem has the witnesses, right present and to evidence cross-examine physician including psychologist reporting to the court." Id. at then concluded that WlS. STAT. 880.33 required petitioner report produce professional whose *8 conclusion, Id. This petition. formed the basis of the the R.S., appear support proposition context would to the that only ward, guardian litem, advocacy proposed the the ad or right present counsel and cross-examine witnesses. has ward, guardian, advocacy proposed proposed Because a a or counsel certain does not that not also has mean others do rights. have those and Coston hold that Bryn
And as have explained, we ch. from a has an interested The statutory rights a guardian. appointing are similar whether party to an interested given or guardianship STAT. 880.08 petition consider a WlS. § 880.19(5) to transfer a ward's petition a WlS. Stat. conclude that Carla We property. permitting guardian trial court's order terminate Carl's lease. turn the substantive issues. Carla 11. We court failed to consider alterna
asserts that
trial
that
Carl's lease. An alternative
terminating
tives to
was that Carl should return home
suggested
Carla
home care
by using
providers.
save
home costs
nursing
that
court also should
On
the trial
appeal,
argues
home,
Carl's
renting
thereby preserv
have considered
She
it
viable manner.
concludes
ing
financially
in a
is
gift
contrary
a
of Carl's
making
property
does not
complain
Carl's best interests.
court,
this
in the trial
that Carla failed to raise
issue
He
Carla's
on the merits.
but instead addresses
issue
trans
claims
"the
a Guardian to
allowing
basis
set
in the
clearly
fer
real
of ward is
forth
transfer of the
Statutes,"
prop
Wisconsin
sense of
erty
"gift"
legal
was not
traditional
issue of
the word. Because the
have briefed the
parties
to make a
the ward's
authority
gift
Beard v. Lee Enter
See
it.
we will consider
property,
(1999).
Inc., 225 Wis. 2d
1, 17,
prises,
property,
gifts
that statute does not mention
as a
880.19(5) permits
method
guard
of transfer. Section
mortgage, pledge,
"sell,
ian to
property
exchange any
lease or
conspic
of the
estate." Gifts are
uously
statutory ways guardian my
absent from the
property.
transfer a ward's
And in V.D.H. v. Circuit
(1990),
Court,
154 Wis. 2d
584,
The had authority, however, no to exer- any power cise over the property ward's which was Thus, conferred statute. of the estate could not make a gift property of the estate on the ward's behalf or exercise on the ward's behalf those property rights denominated as "personal" to the ward.... accept gift
We do not assertion that the reality gift. of the life lease was in not a suggests relieving paying Carl of the burden of real taxes, estate insurance, and maintenance is con- property.5 sideration for the transfer of the While might be true if the were unrentable or could general proposition, As a there people would be few who agree would that giving their homes to another to avoid the payment taxes, insurance, quid maintenance would be a pro quo. support conclu- sold, is no record for such
not be there remand, be able to On trial will sions.6 *10 property disposition appropriate the of Carl's consider considering possible alternatives, and their after costs. by
¶ erred 14. the trial court We conclude that gift considering less than of not alternatives drastic Having concluded, to his landlords. so Carl's not she believes need consider Carla's other reasons reverse the trial court's order. that we should By and cause the Court. —Order reversed remanded with directions. (dissenting).
¶ BEININGER, 15. J. I conclude bring appeal, and I that Carla S. lacks this therefore dissent. appointed 1997, In March the court
guardian protectively for Carl S. and ordered he be ninety years placed. old, Carl now has suffered a currently infirmities, resides in a stroke other nursing May guardian petitioned 1999, In his home. the court for an order ter- "life lease" in his former residence. The minate Carl's question by Carl and his lease had been entered into they in late wife after deeded their residence to grandchild. of their children and a Under its three year respon- paid per terms, Carl rent of and was $1.00 per interest Sale Carl's would result an estate autre vie, during by period an estate measured another's life." "for (7th Dictionary likely The ed. Black's Law landlords, willing buyers would Carl's or someone be length purchase housing discounted for an uncertain tenancy. taxes, insurance, utilities,
sible for all real estate "any expenses property," including other related joint repairs. The lease was for the Carl lives of and his "unlikely wife. Carl's averred that Carl was premises return" to the and that he was "without the payments required financial wherewithal to make the by Agreement." the Lease daughter, although among Carla, 17. Carl's persons property, who were owners/lessors of
objected petitioned to termination of the lease and recognition regarding court "for the . . . Petition that has been filed the Guardian." She appeared hearing petition. counsel with at the on the guardian disputed whether Carla had object petition, to the but court concluded that *11 why permit- there was no "reason she ... should not be input ted to have some into the whether issue of it's appropriate the life "participate be lease terminated" and ruled proceedings." that Carla could in the guardian consistently ¶ 18. The testified with his support petition. averments in of the Carla's counsel permitted guardian, was cross-examine the and opposition guardian's request. Carla testified in to the position Her lease was the should not be termi- might nated because her father be able return to his necessary arranged. if home home care could be The reports record, court concluded that medical in the past recommendations of Carl's ad litem regarding possibil- placement needs, his rendered ity returning of his at his home remote best. The testimony also that, court credited financially, interest, in if it was Carl's best not an imperative, obligations his under lease be ter- Accordingly, an minated. entered steps may "take such as be necessary in Carl's lease-hold interest terminate" the residence. may judgment person A not from 19. aggrieved by it. This means that he or she is
unless directly injuriously upon judgment his must bear "adversely person must be affected interests; or her appreciable v. manner." Ford Motor Credit Co. some (Ct. 215, 217-18, 2d 418 N.W.2d Mills, Wis. (citations omitted). 1987) necessary App. It is for not appellant "a that an been this court party suit," at and we are named to the id. " 'liberally standing.'" v. Lib construe the Koller law erty 266, 526 Co., Ins. 190 Wis. 2d N.W.2d Mut. (Ct. 1994) (citation omitted). App. Nonetheless, "a 799 strong enough
desire to be heard the court is "legally standing" "direct effect" on one's establish protected —a required. 2d B.G., L.P. interest" is v. 177 Wis. 1993). App. question 424, 427, 501 N.W.2d presented is one of law. Id. dispute There can be no that Carla is an person" purposes
"interested
of the
(1999-2000)1
880.01(6)
See
statutes.
("
Wis. person' means
adult relative or
'Interested
protected
subchapter
to be
under this
friend
.").
recently
. .
.
We have
considered in some detail
guardian
persons"
respect to
of "interested
with
placement proceedings
ship
protective
under
chapters
Joseph P.,
See
v.
222 Wis.
880 and 55.
Coston
(Ct. 1, 11-22,
courts are foreclosed from for the pation persons" of interested and that a court "could persons par- exercise discretion to ticipate interested to allow appropriate." to the extent it deem Id. would at very thing 21. The trial in this did that at court case hearing guardian's petition on the to terminate the lease: why
1 don't reason . not [Carla]. see . should be permitted input to have some into the issue of appropriate whether it's that the life termi- lease be nated, going so I'm treat and her as if she has appear in that at time. proceeding this discretionary The court's decision to allow Carla's input participation proceedings, trial and necessarily however, does not confer on her the neces- sary "legally protected" or in the "substantial" interest resulting person render her a order would "adversely appreciable affected some manner" it. appellants sister 22. The in Coston were a niece of Id. at the ward. 4. Their Joseph incompetent, order determined which be person appointed estate, of his protectively placed apparently him, not chal was lenged. opinion.2 issue in We did address the our persons" Coston have a statu We noted in that "interested tory right guardian and to petition appointment for the 1, 11, 586 Joseph P., guardian. nominate a Coston v. 222 Wis. 2d give certainly N.W.2d an This would seem denying an his or her interested *13 present appeal, an order however, The does not involve appointing initially establishing guardianship, a a placement. pre- ordering protective guardian, or only scope. It more in deals sent order is much limited nomination, may basis on which petition or and it be sufficient non-petitioning person on a interested confer guardian request the of appeal appoints order at an which another. Bryn v. acknowledge supreme the court's comment in
I also
(1963),
24, 29,
on which
with of the ward's interest in a lease. *14 aggrieved by 23. I conclude that Carla was not guardian
the order her father's to termi guardian nate the life lease. Once a of the estate is appointed, management disposition of a ward's property largely guardian a matter for the and the per § court to determine. Wis. Stat. 880.19. Interested 880.01(6),3 may sons, petition § as defined in Wis. Stat. directing guardian the court for an order to sell or dispose property may complain otherwise ward, of a suspected mismanagement to the court of fraud or may request require ward's estate, and the court to a guardian file accounts. See Wis. Stat. 880.19(5)(b); 880.16(4); §§ 880.252; Coston, 222 Wis. 2d guardian authority at 12 n.8. aWhen seeks the court's dispose of a ward's in estate, interest real however, persons" given "interested like Carla need not even be 880.19(5)(b) ("The request. notice of the Section court, application on the of the of the estate ... after any, may such notice if as the directs, authorize any guardian to sell . . . of the ship upon may order."); estate such terms as the court ("Upon presentation § peti [a WlS. Stat. 786.09 encumbrance] presiding judge tion for sale or . . . the may proceed summary inquire in a manner to into the ...."). application merits of such 3 noted, As I have Carla person" is an "interested under WlS. 880.01(6), in daughter that she is the of person "pro chapter not, however, tected under" 880. She is "person in way estate," 786.01, interested in the real see Wis. Stat. § she, because unlike Carl's other children and one of his grandchildren, possessed legal equitable no or in interest subject real estate question. that was to the lease
621 statutory right to lack of In view of Carla's of) (or proceed participate even have notice ings disposition regarding the of Carl’s leasehold interest, I has not shown that conclude directly injuriously upon" "bear[s] appealed "adversely legally protected hers, interest Tierney appreciable affec[ts]" her manner." v. in "some 298, 302, N.W.2d Lacenski, Wis. attempted she Indeed, the issues alleged Carl's raise in her brief relate to violations of rights hers. But Carl's and interests — not subject respect matter of the interests with proceedings As noted instant are not hers raise. Coston, in pursue 2d at Carla has other avenues Wis. her inter what she believes to be father's best *15 by seeking example, his ests, for court review of Additionally, placement competency his status. complain guardian's may regarding the she to the court management estate, her father's and seek his removal.4 argues reply
¶ 25. Carla in her brief that standing her trial waived issue of objecting guardian's request In addition to to the to termi lease, petition "re-hearing" nate life also Carla filed subject on Carl whether should continue be placement, appointment adversary protective for the Carl, present guardian. counsel for and for removal of his matters, The appealed order addresses none of these and the action, any, if record does disclose what has been taken on petitions. My standing lacks Carla's conclusion attempted appeal to her of the limited guardian interest terminate ward's lease-hold in his for question mer residence. The of the of "interested may persons" proceed other entered in orders be ings chapters presented by appeal. under 880 and is not this person's standing court. I first observe that a by a circuit court order is a matter to be decided this any court, and I fail to see how omission action or party in the circuit court could be deemed to foreclose appear our consideration of who has before argument Moreover, us. I conclude that Carla's waiver following mischaracterizes the record. She cites the guardian: "[S]he statement daughter counsel for the is the suppose ostensibly ward,
of the so I there standing. could be . . ." The counsel, how- say: ever, went on to
That only way would be the that I would see her as a any standing with on this —this limited issue.
Conversely, I see there interpreta- could be an tion where she doesn't have by virtue of the fact party she's not a agreement to the lease at all, and it's hard for me to understand how if the lease is terminated she impacted would be event. She certainly doesn't benefit by virtue of hav- ing the lease. If it's terminated I don't see how that's sense, detriment to her. And in that I don't know impacted how she would be and I think that could be considered in determining standing also. correctly: later,
And court, counsel told the I think 880 makes pretty it clear that the court has discretion on matters of transfer of real *16 interest of the basically give ward to notice to whomever the court directs. ... I think it's within the court's discretion to make that determination solely your in discretion as to [Carla] whether any hearing in this or not. appeal
In short, the issue of Carla's the present order has not been waived.
¶ I conclude Carla lacks 26. Because appeal. order, the I would dismiss the instant My disposition the would thus terminate recommended reaching the merits of issue before attempts I issues in raise, and not discuss those will majority's ratio- note, however, I that the this dissent. remanding support reversing finds in for little nale that she First, Carla never testified the record. it out, rented or that believed the residence should be profitably the could be. She never cross-examined suitability guardian regarding property in question possibility rental, or a sub-ten- as pay could who rent sufficient ant be found would Finally, obligations she exceed under the lease. Carl's argued require the the court that it should never guardian attempt purchaser a renter or obtain property, disposition or that constituted a argument "gift," majority Her as the concludes.5 sole terminating pre- the trial for not possibility the lease was re-occupying the mised on the of Carl's Rogers, 817, 827, home. See State v. 196 Wis. ("We 1995) will . . blindside N.W.2d 897 not. nothing support Given there is in the record to majority's theory that Carl's life interest could subleased, profitably perhaps be sold or it is understandable (See 12, majority heavily conjecture. "Com relies on 13, n.5, always mon sense us "Tenants almost tells general few proposition, people "As a there would be who would .") reasonable, agree . . . that it at least if I submit would be as so, purchasers prospective not more to assume that or subten interest the life ants for leasehold that is coterminous with ninety-year-old an infirm few and far between. would be *17 trial courts with reversals based on theories which did forum."). originate their
