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                                                                No. 99-683

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2000 MT 83

                                                             299 Mont. 178

                                                              998 P. 2d 541


                                      IN THE MATTER OF THE GUARDIANSHIP

                                    AND CONSERVATORSHIP OF ANTON GALI,

                                                      An incapacitated person.


                         APPEAL FROM: District Court of the Sixteenth Judicial District,

                                            In and for the County of Powder River,

                                           Honorable Gary L. Day, Judge Presiding

                                                     COUNSEL OF RECORD:

                                                            For Appellant:

                                Frank C. Richter, Richter, Torkelson, Hanson & Tucker,

                                                           Billings, Montana

                                                           For Respondent:

                                   A. Lance Tonn, Lucas & Tonn, Miles City, Montana


                                              Submitted on Briefs: March 9, 2000

                                                       Decided: April 4, 2000

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                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1.Anton W. Gali appeals an order of the Sixteenth Judicial District Court, Powder River
County, which refused his request to substitute two new guardians and conservators for
those previously appointed for him. We affirm.

¶2.The issues are:

¶3.a Did the District Court err in refusing to remove the present guardians and
conservators and appoint new ones?

¶4.b Do the present guardians and conservators have authority to terminate legal
representation for Gali?

¶5.c Does venue for this action lie in Yellowstone County?

¶6.In May 1998, two of 82-year-old Anton W. Gali's six adult children petitioned to be
appointed as his guardians and conservators, asserting that his advancing age and bipolar
mental disorder rendered him an incapacitated person. The District Court appointed an
attorney to represent Gali and a physician to examine him. Following a hearing, the
petitioning children were appointed as Gali's co-guardians and conservators and were
ordered to file annual financial accountings with the court.

¶7.In March 1999, Gali, through his appointed counsel, moved the court for termination of
his incapacity or, in the alternative, for removal of his co-guardians and conservators and
appointment of others to serve in those capacities. By the time of the September 1999
hearing on the motion, however, Gali had become quite ill and conceded that continuation
of a guardianship and conservatorship was appropriate. At the hearing, Gali's counsel
argued only for the appointment of new guardians and conservators, based upon Gali's
unhappiness with his son and daughter's performance in those roles. Specifically, counsel
presented evidence that prior to Gali's most recent illness, he felt that his son and daughter

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did not communicate with or visit him enough, provide him with enough spending money,
or forward his mail to him promptly enough.

¶8.At the conclusion of the hearing, the court denied the request for appointment of new
guardians and conservators. The court stated that Gali had not proven that his present
guardians and conservators had failed to act in an appropriate fashion. Gali appeals.

                                                                   Issue 1

¶9.Did the District Court err in refusing to remove the present guardians and conservators
and appoint new ones?

¶10.Under Rule 52(a), M.R.Civ.P., this Court reviews a district court's findings of fact to
determine whether they are clearly erroneous. Findings are clearly erroneous if they are
not supported by substantial evidence, if the trial court has misapprehended the effect of
the evidence, or if this Court is left with a definite and firm conviction that a mistake has
been committed. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820
P.2d 1285, 1287. We review conclusions of law to determine whether they are correct.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

¶11.As indicated above, the issue at the hearing on Gali's motion was limited to whether
the co-guardians and conservators should be substituted. Gali contends that there was
evidence in the record which would have supported findings that his son and daughter did
not meet their duties to act in his best interests. However, the existence of evidence which
might support a finding does not require a district court to make that finding. Yellowstone
Basin Properties, Inc. v. Burgess (1992), 255 Mont. 341, 352, 843 P.2d 341, 348.

¶12.Gali's sister, whom he proposed as a substitute guardian and conservator, testified on
his behalf. While she took exception to some of the interpersonal relations between Gali
and his co-guardians and conservators, the court found that this fell short of grounds for
their removal. The record reflects, and the court found, that Gali's sister also opined that
the co-guardians and conservators were doing a good job of running Gali's ranch,
managing corporate affairs for the ranch, and managing Gali's financial affairs. The court
further found, and the record supports the finding, that Gali's expert psychiatric witness
acknowledged that given his illness and all of the extenuating circumstances, Gali would
have most likely been unhappy with the actions of any guardian and conservator and any
financial limits which may have been placed upon him. The court found that no


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substantive proof had been produced of any misconduct by the co-guardians and
conservators in the performance of their duties. These findings are supported by
substantial evidence and are not otherwise clearly erroneous.

¶13.The District Court concluded that the present co-guardians and conservators had
appropriately performed their duties, and did not terminate their appointment. We hold
that these conclusions of law were correct and that the District Court did not err in
refusing to remove the present guardians and conservators and appoint new ones.

                                                                   Issue 2

¶14.Do the present guardians and conservators have authority to terminate legal
representation for Gali?

¶15.Gali's counsel states that after the District Court denied his request for a change in
guardians and conservators, he received a letter from the co-guardians and conservators
notifying him that his services are no longer needed. Citing Matter of Simmons (1985),
215 Mont. 463, 698 P.2d 850, which was an appeal of involuntary commitment orders, he
asks this Court to hold that Gali is entitled to counsel at all times he is incapacitated and to
order the co-guardians and conservators to pay his fees for representing Gali, including
this appeal.

¶16.Because termination of the services of Gali's court-appointed attorney was not
undertaken until after the decision on Gali's motion, this issue was neither presented to nor
decided by the District Court. As such, it is not properly an issue for this appeal. See, e.g.,
Matter of Guardianship and Conservatorship of Estate of Tennant (1986), 220 Mont. 78,
82, 714 P.2d 122, 125.

¶17.We therefore decline to further consider this issue.

                                                                   Issue 3

¶18.Does venue for this action lie in Yellowstone County?

¶19.Section 72-5-311, MCA, provides that venue for guardianship proceedings for an
incapacitated person is in the place where the person resides or is present. Section 72-5-
323, MCA, provides that in subsequent proceedings the court for the county in which a
ward resides has concurrent jurisdiction with the court which appointed a guardian.
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Section 72-5-407, MCA, provides that venue for conservatorship proceedings is in the
place where the protected person resides, whether or not the guardian has been appointed
in another place.

¶20.Gali does not argue that the hearing from which this appeal is taken was held in an
improper venue. Rather, he asks that if this Court remands this matter for further hearings,
we find that the case should be removed to Yellowstone County, where Gali was residing
at the time of the hearing on his motion and when this appeal was briefed. The
respondents argue to the contrary that Gali is only temporarily residing in Yellowstone
County for medical treatment and that Powder River County remains his permanent place
of residence.

¶21.Like Issue 2, this issue was not raised before the District Court. Additionally,
inasmuch as proper venue depends on where Gali resides, it would be improper for this
Court to rule on the question prospectively. We therefore decline to consider this issue
further.

¶22.Affirmed.

                                                        /S/ J. A. TURNAGE

We concur:

                                                /S/ WILLIAM E. HUNT, SR.

                                                /S/ TERRY N. TRIEWEILER

                                                      /S/ KARLA M. GRAY

                                               /S/ W. WILLIAM LEAPHART




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