                                                                                 April 15 2014


                                  DA 13-0655

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                2014 MT 101N



IN THE MATTER OF THE
GUARDIANSHIP OF S.M.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and For the County of Gallatin, Cause No. DG-12-37B
                 Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                 Valery O’Connell, self-represented; Emigrant, Montana

           For Appellee:

                 Mark E. Miller; Braaksma & Miller, PLLC; Bozeman, Montana



                                           Submitted on Briefs: March 19, 2014
                                                     Decided: April 15, 2014


Filed:

                 __________________________________________
                                  Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Valery O’Connell (O’Connell) appeals from an order of the Eighteenth Judicial

District Court, Gallatin County, appointing Chris Sheehan (Sheehan) guardian of S.M.

and seeks review of her petition to remove Sheehan as guardian and motion for relief.

We affirm.

¶3     On October 18, 2012, O’Connell, through counsel, filed a petition for the

appointment of a full guardian and conservator of S.M., then a 77-year-old woman with

dementia.    S.M. has five adult children, including O’Connell and Sheehan.         In the

petition, O’Connell sought her appointment as S.M.’s guardian and conservator. The

District Court held a hearing on the petition on November 27, 2012. At the hearing, there

was no dispute that S.M. needed a guardian, but S.M.’s children disagreed about who

should be the guardian.     S.M.’s court-appointed visitor recommended that someone

outside of the family serve as guardian because of the “family dynamics” and

“communication difficulties” between the children. The District Court raised concerns as

to who would pay for such services given S.M.’s limited resources. At the end of the

hearing, the District Court ruled from the bench and appointed O’Connell conservator


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and Sheehan guardian of S.M. On November 28, 2012, the District Court issued its

corresponding findings of fact, conclusions of law, and order, and on November 29,

2012, the court issued letters of guardianship. O’Connell did not appeal from this order,

despite authority to do so under M. R. App. P. 6(4)(a).

¶4     Over the following months, O’Connell, as a self-represented litigant, filed a flurry

of motions seeking Sheehan’s removal as guardian and O’Connell’s appointment as

guardian. She also sought the substitution and disqualification of the District Court judge

and the removal of S.M.’s court-appointed counsel.           The District Court denied

O’Connell’s multiple motions as being without merit. On July 17, 2013, O’Connell filed

an amended petition in which she again sought replacement of S.M.’s court-appointed

legal counsel, removal of Sheehan as guardian and her own appointment to that position,

and other relief pursuant to M. R. Civ. P. 60(b)(6). S.M.’s counsel filed an answer brief,

and O’Connell filed a reply brief.     The District Court did not address this last of

O’Connell’s motions. O’Connell filed an appeal in September 2013.

¶5     O’Connell argues that the District Court erred in numerous ways. She alleges the

court: “arbitrarily and capriciously appoint[ed] Sheehan guardian . . . without a petition,

interview, examination, and without a hearing for such purpose as required”; did not base

its decision on substantial credible evidence; fatally harmed S.M. and O’Connell’s due

process rights; based its appointment of Sheehan on “absurd” criteria; made a decision

that was not in S.M.’s best interest; and erred in failing to address her petition for

Sheehan’s removal under § 72-5-325, MCA. S.M.’s counsel responds that the District


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Court correctly followed all applicable statutory mandates and exercised its broad

discretion to appoint Sheehan guardian after concluding that Sheehan’s appointment was

in S.M.’s best interest.

¶6     We review a district court’s conclusions of law related to the appointment of a

guardian to determine if they are correct. Fischer v. Fischer, 2007 MT 101, ¶ 8, 337

Mont. 122, 157 P.3d 682 (citation omitted). We review findings of fact to determine

whether they are clearly erroneous. Fischer, ¶ 8 (citation omitted).

¶7     As an initial matter, we note that a petition to appoint a guardian is not an

adversarial proceeding but is a proceeding to promote the best interests of the person for

whom guardianship is sought. In re Est. of Bayers, 1999 MT 154, ¶ 14, 295 Mont. 89,

983 P.2d 339; see § 72-5-306, MCA (“Guardianship for an incapacitated person may be

used only as is necessary to promote and protect the well-being of the person.”).

¶8     O’Connell argues that her appeal from the District Court’s November 28, 2012

order is timely.    We disagree.   M. R. App. P. 6(4)(a) provides that an order in a

guardianship matter “must be appealed immediately,” and that “failure to do so will result

in waiver of the right to appeal.” The District Court issued its order appointing Sheehan

full, permanent guardian on November 28, 2012, and issued corresponding letters on

November 29, 2012.1 Thus, O’Connell had the right to appeal as early as November

2012, 2 but she did not do so until September 2013. We conclude that O’Connell failed to



1
 The District Court issued amended letters appointing Sheehan guardian on December 5, 2012.
2
  Indeed, the record reflects that O’Connell expressed her intent to appeal as early as
December 6, 2012.
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“immediately” appeal the court’s November 2012 order and, thus, waived her right to

appeal.

¶9    We likewise reject O’Connell’s arguments regarding her July 17, 2013 motion.

Entitled “Amended Petition to Replace Guardian & New Motion to Replace Miller &

Rule 60 Motion [sic] Relief,” this document sought a wide range of relief. The District

Court did not rule on this amended petition. We are asked to evaluate a Rule 60 motion

(seeking relief from a judgment) that is combined in one document with a petition for

substantive relief in the guardianship. While the former is subject to a “deemed denial”

under M. R. Civ. P. 60(c)(1), the latter is not. Under other circumstances, we might

remand the petition to replace the guardian to the District Court for determination. Here,

however, we conclude this is not necessary because O’Connell’s petition to remove the

guardian is grounded upon her repeated argument that the court erred in appointing

Sheehan as guardian in the first place. As noted above, O’Connell has waived any

further argument with respect to the propriety of Sheehan’s appointment by failing to

timely appeal the appointment. We therefore decline to consider her July 17, 2013

motion further.

¶10   We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by the evidence, and the legal issues are

controlled by settled Montana law.




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¶11    For the foregoing reasons, we affirm the District Court’s order appointing Sheehan

guardian and deny O’Connell’s petition for further relief.


                                                 /S/ PATRICIA COTTER


We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON




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