                                                                                               12/27/2016


                                           DA 16-0284
                                                                                           Case Number: DA 16-0284

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 339N



IN THE MATTER OF THE CONSERVATORSHIP
OF J.J.W.,

         An Incapacitated Person.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DG 15-0027
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        John R. Christensen, Timothy A. Filz, Joseph L. Breitenbach, Christensen
                        Fulton & Filz, PLLC, Billings, Montana

                 For Appellee:

                        John M. Van Atta, Patten, Peterman, Bekkedahl & Green, PLLC, Billings,
                        Montana
                        (Attorney for Carol Daniel)

                        Jon Doak, Doak & Associates, P.C., Billings, Montana
                        (Attorney for Roger Daniel)

                        Jack E. Sands, Sands Law Office, Billings, Montana
                        (Attorney for J.J.W.)



                                                    Submitted on Briefs: November 16, 2016

                                                                Decided: December 27, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Kim Wallinder Moffet appeals an order of the Thirteenth Judicial District Court,

Yellowstone County, dismissing her petition for conservatorship of her mother, J.J.W.

We address whether the District Court erred by denying Moffet’s petition. We affirm.

¶3     In March 2015, Moffet filed a petition for conservatorship in the District Court,

seeking to appoint a third-party conservator for J.J.W. J.J.W. and her other daughter,

Carol Daniel, opposed the petition.     In September 2015, Moffet moved for partial

summary judgment that J.J.W. met the first prong of the test for appointing a conservator,

set forth in § 72-5-409(2), MCA. Section 72-5-409(2), MCA, provides:

       Appointment of a conservator . . . may be made in relation to the estate and
       affairs of a person if the court determines that:
       (a) The person is unable to manage the person’s property and affairs
       effectively for reasons such as mental illness, mental deficiency, physical
       illness or disability, advanced age . . . ; and
       (b) the person has property that will be wasted or dissipated unless proper
       management is provided . . . .

In December 2015, the District Court granted Moffet’s motion, finding that J.J.W. “is

afflicted with a mental condition due to her advanced age that requires she be assisted

with decisions that are of significant consequence.” The District Court then held a

hearing on the second prong of § 72-5-409(2), MCA: whether J.J.W. “has property that


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will be wasted or dissipated unless proper management is provided.” At the conclusion

of Moffet’s case-in-chief, Daniel moved for summary judgment on the basis that Moffet

did not produce sufficient evidence to show J.J.W.’s assets will be wasted or dissipated.

J.J.W. joined Daniel’s motion, which the District Court reframed as a motion for a

directed verdict. The District Court granted Daniel’s motion and dismissed Moffet’s

petition. Moffet appeals.

¶4     On appeal, the parties dispute the standard of review because they dispute the

effect of the District Court’s ruling. Moffet refers to the District Court’s decision as a

judgment as a matter of law, whereas Daniel refers to it as a judgment on partial findings.

M. R. Civ. P. 50(a)(1) provides that a district court may grant judgment as a matter of law

against a party if the party “has been fully heard on an issue during a jury trial and the

court finds that a reasonable jury would not have a legally sufficient evidentiary basis to

find for the party on that issue.” (Emphasis added.) This was not a jury trial. Therefore,

M. R. Civ. P. 50(a)(1) does not apply. M. R. Civ. P. 52(c) provides:

       If a party has been fully heard on an issue during a nonjury trial and the
       court finds against the party on that issue, the court may enter judgment
       against the party on a claim or defense that, under the controlling law, can
       be maintained or defeated only with a favorable finding on that issue. . . . A
       judgment on partial findings must be supported by findings of fact and
       conclusions of law as required by Rule 52(a).

Because this was a nonjury trial, and Moffet presented all of her evidence before the

District Court ruled on Daniel’s motion, M. R. Civ. P. 52(c) applies. We therefore treat

the District Court’s decision as a judgment on partial findings.




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¶5     A district court’s findings of fact, “whether based on oral or other evidence, must

not be set aside unless clearly erroneous, and the reviewing court must give due regard to

the trial court’s opportunity to judge the witnesses’ credibility.” M. R. Civ. P. 52(a)(6).

A finding is clearly erroneous if it is not supported by substantial evidence, if the district

court misapprehended the effect of the evidence, or if this Court is left with a definite and

firm conviction that the district court made a mistake.            In re Guardianship &

Conservatorship of Gali, 2000 MT 83, ¶ 10, 299 Mont. 178, 998 P.2d 541. We review a

district court’s conclusions of law for correctness. Gali, ¶ 10.

¶6     Although the District Court did not issue written findings of fact, “[w]e have . . .

long adhered ‘to the doctrine of implied findings[,] which states that where a court’s

findings are general in terms, any findings not specifically made, but necessary to the

judgment, are deemed to have been implied, if supported by the evidence.’” Brunette v.

State, 2016 MT 128, ¶ 36, 383 Mont. 458, 372 P.3d 476 (quoting Interstate Brands Corp.

v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576 (1985)). Under this doctrine, we

often consult hearing transcripts. See Brunnette, ¶ 36. Throughout the hearing, the

District Court repeatedly doubted Moffet’s assertions. For example, when Moffet argued

that a lack of transparency regarding J.J.W.’s finances was in and of itself

mismanagement of her assets, the District Court responded: “that may be a leap.” When

Moffet argued that J.J.W.’s accountant “is being paid 450 bucks a month to do nothing,”

the District Court stated: “Well, I think that’s—might be a little stretch. He’s obviously

doing something . . . .” The District Court warned Moffet that she would need to present

more than mere suspicions, stating: “just because you say it doesn’t mean it’s so.”


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Ultimately, the District Court found that Moffet relied almost entirely on her suspicions,

summarizing her argument as: “where there’s smoke, there’s fire.” Although the District

Court’s stated findings at the conclusion of the hearing were general in terms, the District

Court implicitly weighed the evidence Moffet presented and found that she did not back

her assertions up with concrete evidence. This was well within the District Court’s

province as the trier of fact. See Swain v. Battershell, 1999 MT 101, ¶ 39, 294 Mont.

282, 983 P.2d 873 (“The credibility of witnesses and the weight to be afforded their

testimony is a matter left to the sound discretion of the District Court.”).

¶7     Although Moffet alleges that she presented “indisputable evidence” showing that

§ 72-5-409(2)(b), MCA, was met, the evidence she points to does not clearly contradict

the District Court’s findings. Moffet contends the following facts are sufficient to meet

§ 72-5-409(2)(b), MCA: that Daniel assisted J.J.W. in selling her insurance business to

Daniel’s son and “did everything in her power” to prevent Moffet from learning the

details of that transaction; that J.J.W.’s accountant, despite being paid $450 per month,

was behind in filing J.J.W.’s taxes and made mistakes when he did file them; and that

“[u]pon receiving demands for transparency from counsel for [Moffet], J.J.W.’s attorney

communicated those demands directly” to Daniel and her son without discussing them

with J.J.W. Much of Moffet’s argument relies on an alleged absence of transparency; at

the hearing, the District Court rejected Moffet’s argument that a lack of transparency

shows mismanagement. Moffet has not shown that the District Court clearly erred in

making this finding. Nor has she shown that any of her other alleged facts will result in

waste or dissipation of J.J.W.’s assets.


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¶8        In In re Conservatorship of Kovatch, 271 Mont. 323, 896 P.2d 444 (1995), we

affirmed a district court’s finding that one sibling produced insufficient evidence to show

that another sibling’s management of an incapacitated person’s estate was resulting in

waste or dissipation of assets. As in Kovatch, there is no dispute that J.J.W. lacks the

capacity to manage her property and affairs. Also as in Kovatch, Moffet has not shown

that the District Court clearly erred in finding she did not meet her burden of proof under

§ 72-5-409(2)(b), MCA. Therefore, the District Court did not err in issuing a judgment

on partial facts pursuant to M. R. Civ. P. 52(c), and did not err in dismissing Moffet’s

petition for conservatorship of J.J.W.

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct, and its findings of fact are not clearly erroneous. We

affirm.

                                                 /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER




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