96-695




                                                                                           No.       96-695

                                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                           1997




                                                 In the Matter of THE APPOINTMENT OF
                                                       A GUARDIAN AD LITEM AND
                                                        CONSERVATOR FOR LAUREN
                                                        WATSON, JAMES WATSON,
                                                     HOLLAND WATSON, and DURBIN
                                                               WATSON,
                                                                 Protected Persons.




             APPEAL FROM:                            District Court of the Eighth     Judicial District,
                                                              In and for the County of Cascade,
                                                    The Honorable John R. Christensen, Judge presiding.



                                                                   COUNSEL OF RECORD:

                                                                                     For Appellant:

                                       Micheal F. Lamb, John A. Kutzen, Thueson & Lamb, Helena, Montana

                                                                                    For Respondent:

                                                     John C. Hoyt, Hoyt & Blewett, Great Falls, Montana




                                                                                Submitted on Briefs: April 3, 1997

                                                                               Decided:               June 3, 1997
                                                                               Filed:



                                                              __________________________________________
                                                                         Clerk



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                   Justice William E. Hunt, Sr., delivered the Opinion of the Court.


           Appellant James Watson (Watson) appeals the decision of the Eighth Judicial
  District Court, Cascade County, denying his petition for appointment of himself as
 conservator and guardian ad litem, and granting the petition of his ex-wife Tanara
                                            Martin
    (Martin) for appointment of herself as conservator and guardian ad litem of the
                                           couplesþ
                      four minor children (the children). We affirm.
                                                                ISSUE
           The sole issue presented on appeal is whether the District Court abused its
    discretion in concluding that Martin was not subject to an inherent conflict of
                                           interest
    between her husband and her children, that would preclude her from serving as the
                        childrenþs conservator and guardian ad litem.
                                                                FACTS
           Watson and Martin were divorced in November 1993 and agreed to joint custody
 of their four children. In September 1994, Martin married her present husband, Tony
   Martin, who is employed by the Willow Creek Ranch (the ranch) in Belt, Montana, as
 a ranch manager. Following her marriage, Martin moved with her four children to the
  ranch. The ranch, as Tony Martinþs employer, provided housing, utilities, and one-
                                             half
                              beef a year to the Martin family.
             On December 8, 1995, Martin requested that a ranch hand named Brent Wood
   (Wood) pick up the children from school in Belt and give them a ride back to the
                                            ranch.
 During the trip back, the pickup truck driven by Wood was involved in a one-vehicle
  accident which resulted in injuries to all the children. The parties agree that
                                           Wood was
      acting within the course and scope of his employment at the time the accident
                                          occurred,
   and further agree that the pickup truck in question was owned and insured by the
                                            ranch.
      The parties also agree that the ranch has approximately $800,000 of available
                                          insurance
                                          coverage.
          The oldest Watson child, Lauren, was most grievously injured in the accident.
Her injuries required her to remain in the hospital for over seven weeks and undergo
                                              at
     least nine operations. The medical expenses incurred by her alone have totaled
   approximately $200,000 thus far, and she may require additional treatment in the
                                            future
because the accident left her permanently handicapped. Given the nature of Laurenþs
injuries alone, the parties agree that the expenses and damages incurred by the four
  children could exceed the limits of the insurance. While no lawsuit has thus far
                                             been
    filed, the parties do not rule out the possibility that one may be filed in the
                                        future. Any
   such law suit would likely seek to recover damages from the ranch, which directly
    employs Martinþs husband and provides to him the home in which the family lives.
         In March 1996, Watson petitioned the District Court for his own appointment

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                                              as
 guardian ad litem and conservator for the children. Martin opposed his petition and
     cross-petitioned for her own appointment. After a hearing, the District Court
                                          concluded
 that Martinþs status as the wife of the ranchþs manager did not create an untenable
                                           conflict
 of interest which would prohibit her from satisfactorily carrying out her fiduciary
                                             duty
    to the children as their guardian ad litem and conservator. The District Court
                                           further
 found her to be a better candidate for guardianship and conservatorship based upon
                                             her
long history of involved and loving parenting. It therefore granted her petition and
   simultaneously denied Watsonþs petition. Watson appeals, asserting that Martinþs
 situation constitutes an inherent conflict of interest which serves, as a matter of
                                           law, to
               preclude her appointment as conservator and guardian ad litem.
                                                      STANDARD OF REVIEW
         This Court will not set aside a district courtþs findings of fact unless the
                                           findings
 are clearly erroneous. Rule 52(a), M.R.Civ.P.; Wareing v. Schreckendgust (1996),
                                             930
   P.2d 37, 41, 53 St.Rep. 1362, 1364; Interstate Production Credit Assþn v. DeSaye
  (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.       This Court will not set aside a
   district courtþs conclusions of law unless the conclusions reflect an incorrect
                                       interpretation
 of the applicable law. Boreen v. Christensen (1996), 930 P.2d 67, 53 St.Rep. 1450;
  Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 898 P.2d 680.
                                Moreover, we have held that
             [s]ubject to statutory restrictions, the selection of the person to be
                                          appointed
            guardian is a matter which is committed largely to the discretion of the
          appointing court, and an appellate court will interfere with the exercise of
                          this discretion only in case of a clear abuse.
 In the Matter of the Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316,
  318 (citation omitted). In reviewing the District Courtþs determination, we will
                                             give
  paramount consideration to the best interests of the children. Section 72-5-223,
                                             MCA.

                                                         DISCUSSION
        Did the District Court abuse its discretion in concluding that Martin was not
 subject to an inherent conflict of interest that would preclude her from serving as
                                          the
                     childrenþs conservator and guardian ad litem?
          The parties agree that the potential interests of the children should be
                                      overseen by
    a conservator and a guardian ad litem. Section 72-5-410, MCA, lists who may be
considered as a conservator to a protected person. Under      72-5-410(1)(e), MCA, both
     parents are equally eligible to petition for conservatorship; neither is, by
                                   statute, favored
  over the other. Section 72-1-303, MCA, provides, however, that "orders binding a

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  conservator bind the person whose estate he controls," but only "[t]o the extent
                                      there is
no conflict of interest between them or among persons represented[.]"   Section 72-1-
 303(2)(b), MCA. Finally,     41-5-512, MCA, which provides for the appointment of a
                      guardian ad litem, states in part:      The
                                                           court
                                                          at any
                                                           stage
                                                             of a
                                                          procee
                                                             ding
                                                             on a
                                                          petitio
                                                               n
                                                            under
                                                             this
                                                           chapte
                                                            r may
                                                           appoin
                                                              t a
                                                           guardi
                                                            an ad
                                                            litem
                                                            for a
                                                            youth
                                                           if the
                                                            youth
                                                           has no
                                                           parent
                                                               or
                                                           guardi
                                                               an
                                                           appear
                                                           ing on
                                                              his
                                                           behalf
                                                            or if
                                                            their
                                                          interes
                                                               ts
                                                          conflic
                                                           t with
                                                            those
                                                           of the
                                                           youth.

       Upon review, we conclude that the District Court did not err in determining
                                        that
  Martin does not suffer from a conflict of interest that would preclude her from
                                      serving
as guardian ad litem and conservator to the children. The District Court found that
Martin "would fulfill her fiduciary duties to her children tenaciously, considering

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                                          both
 their emotional needs as well as their future financial security." This finding was
supported by Martinþs testimony that she would not hesitate to act in her childrenþs
                                          best
 interests, even to the detriment of her husband. Martin further testified that she
 recognized that a suit against the ranch likely would be necessary to safeguard the
                                 childrenþs interests.
           The evidence presented showed that Martin is an extremely involved and
 protective mother who dedicates great time, love and attention to her children. The
 evidence also showed that Watson is much less involved in his childrenþs lives. By
                                           his
 own admission, the challenges of his career and new marriage have not allowed him to
   see the children as often as he would like.    For these reasons, Watson does not
                                        exercise
  his visitation rights consistently. Martin testified that, at the time of trial,
                                       Watson had
    not had their daughters to his home for an overnight visit in more than a year.
            Watson contends that the above evidence is largely irrelevant to the
                                     determination
  of who should be the conservator and guardian ad litem to the children. We cannot
agree. An argument that the Court should look solely at Martinþs alleged conflict of
  interest ignores the District Courtþs responsibility to make a determination which
                                         serves
                          the best interests of the children.
        Watson cites several cases for the proposition that any potential conflict of
                                        interest
       should serve to bar an individual from serving as a guardian ad litem or
                                    conservator. See
 In the Matter of the Estate of Peterson, (1994), 265 Mont. 104, 874 P.2d 1230; In re
Marriage of Tesch (1982), 199 Mont. 240, 648 P.2d 293; In the Matter of the Estate of
    Peter C. (Me.1985), 488 A.2d 468. We do not find these cases persuasive. None
   parallel or approximate the admittedly very unique facts presented in the case at
                                        bar, and
 none present situations where, as here, the court must give paramount consideration
                                            to
   the best interests of the children involved. The District Court decided that the
                                       childrenþs
best interests would be served by the appointment of their mother as their guardian
                                            ad
   litem and conservator. Upon review, we determine that the District Court did not
                                          err.
                                           Affirmed.

                                                                                                           /S/      WILLIAM E. HUNT, SR.


                                                                            We Concur:

                                                                /S/ J. A. TURNAGE
                                                                 /S/ KARLA M. GRAY
                                                              /S/ W. WILLIAM LEAPHART
                                                                /S/ JAMES C. NELSON

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