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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Farmer v. Farmer (3/19/2010) sp-6465

Farmer v. Farmer (3/19/2010) sp-6465

     Notice:  This opinion is subject to correction before
     publication in the Pacific Reporter.  Readers are
     requested to bring errors to the attention of the Clerk
     of the Appellate Courts, 303 K Street, Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ROBERT L. FARMER, )
) Supreme Court No. S- 13330
Appellant,)
) Superior Court No. 3AN-07- 0017 PR
v. )
) O P I N I O N
)
BARBARA FARMER, ) No. 6465 - March 19, 2010
)
Appellee.)
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Martin  A.  Engel,  Office  of
          Public  Advocacy, Anchorage,  for  Appellant.
          Barbara Farmer, pro se, Anchorage.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  [Eastaugh,
          Justice, not participating.]

          WINFREE, Justice.

I.   INTRODUCTION
          A   probate   master  appointed  a  temporary   limited
conservator for Robert Farmer.  The conservatorship was  reviewed
the following year; the probate master held a hearing, found that
Robert  was  incapacitated, and recommended that his daughter  be
appointed  partial  limited  conservator.   The  superior   court
considered the matter de novo and ultimately adopted the  probate
masters  findings and recommendations.  Robert appeals,  arguing:
(1)  the evidence does not support the need for appointment of  a
conservator; (2) the court failed to make a necessary finding for
the  appointment  of  a conservator; and (3) the  conservatorship
order  is  not  the least restrictive alternative.   Because  its
findings are sufficiently complete and not clearly erroneous  and
because  it  did  not  abuse  its discretion  in  fashioning  the
conservatorship order, we affirm the superior courts decision.
II.  FACTS AND PROCEEDINGS
          Robert  Farmer  resides  in  Anchorage.   He  has  four
children,  including daughters Barbara and Anita.  Robert  worked
for  the  State  of Alaska but his employment was  terminated  in
January  2005.   He  filed suit against the  State  for  wrongful
termination,  and  also  filed  suit  against  other   government
entities.  Approximately one year later Robert fell behind on his
mortgage  payments.   To avoid foreclosure Barbara  and  Jennifer
Farmer   Barbaras  mother and Roberts wife  borrowed  money  from
Jennifers sister to make the mortgage payments, and Barbara  also
began to pay for Robert and Jennifers utilities.
          During the summer of 2006 Robert worked temporarily  as
a  surveyor.   In December 2006 Jennifer died and  the  home  was
again in danger of foreclosure.  Barbara made additional mortgage
payments to avoid foreclosure.
          In   January   2007  Barbara  filed  a   petition   for
appointment of a guardian and conservator for Robert  to  protect
Roberts  home from foreclosure.  Barbara continued to pay Roberts
utilities  during the spring and summer, even though  foreclosure
proceedings  began  in  March  and the  foreclosure  auction  was
scheduled for August.
          The  probate master held a hearing in August  2007  and
found  that Robert was unable to manage his property and  affairs
effectively  and  his home would be wasted or  dissipated  absent
management by a conservator.  The probate master appointed  Anita
temporary  limited  conservator for  six  months.   As  temporary
limited  conservator Anita was allowed only to sell Roberts  home
to  Barbara and to manage the sale proceeds.  Robert was  allowed
to  reside  in  the  home  for at least one  year  after  Barbara
purchased it, with the mortgage payments for that year to be paid
from the sale proceeds.
          As  it  turned  out,  Anita conveyed  Roberts  home  to
Barbara  in  December  2007 with Barbara  assuming  the  existing
mortgage;  the plan was to repair and market the home  for  sale,
with  the  proceeds providing for Roberts future  housing  needs.
Barbara began making improvements to market the home, but Robert,
who  continued  to  live in the home, often interfered  with  her
efforts.
          In  March 2008 Barbara petitioned the superior court to
review the conservatorship.  The probate master held a hearing in
August  2008.   Barbara  testified  that  she  paid  for  Roberts
utilities for almost two years, acquired food stamps and  heating
assistance  for  Robert and two younger siblings  living  in  the
home,  and  made  mortgage payments to  avoid  foreclosure.   She
testified  that she and her siblings had rented an apartment  for
Robert  but  he was unwilling to move into it.  She  stated  that
Robert  has  an inability to prioritize his financial obligations
and  spends money in an irrational way; for example, although  he
did not pay his phone bill, Robert bought electronics, engaged in
unnecessary  home-improvement  projects,  and  spent   money   on
alcohol, tobacco, and his lawsuits.  According to Barbara, Robert
refused  to apply for disability benefits for fear that doing  so
would  harm his lawsuits.  In her closing comments to the probate
master  Barbara  stated [w]e are 100% unable to market  the  home
while [Robert is] in it.
          Robert  then testified, claiming he used his retirement
benefits  to  pay  for  utilities, his mortgage,  and  his  wifes
medical  expenses.   Robert stated he had  applied  for  multiple
state and federal assistance programs.  He also testified he  has
a claim pending from the Exxon Valdez oil spill.
          The  court-appointed visitor1 filed  a  report,  noting
that  Robert  displayed  poor judgment regarding  his  funds  and
concluding  that  he  was  in need of a conservator.   The  court
visitor  emphasized that Roberts employment  as  a  surveyor  was
seasonal.   She  also  noted that a 2005 Veterans  Administration
evaluation  was  the only medical information  available  because
Robert refused further evaluation.
          The  probate  master found Robert was incapacitated  to
the  extent that he cannot effectively manage important financial
matters  and  related decision making.  The probate master  noted
Roberts  refusal  to  consent  to psychological  or  neurological
testing,  obsession with the notion that the State of  Alaska  is
persecuting  him, abuse of alcohol, engagement  in  a  series  of
expensive  and  time-consuming lawsuits against  the  State,  and
unwillingness  to  attend to important  financial  matters.   The
probate   master  also  found  Robert  exhausted  his  retirement
accounts after a short time and failed to pay utilities and other
expenses.  The probate master determined [i]t is clear  that  Mr.
Farmers  ability to make decisions and manage important financial
matter[s]  is  significantly impaired by his  apparent  cognitive
limitations and long time pattern of conduct.
          The   probate  master  recommended  that   Barbara   be
appointed  partial  limited conservator, with  the  authority  to
repair and market the home, locate and arrange substitute housing
for  Robert,  and manage the net proceeds of the homes  sale  for
Roberts   future   housing  needs.   The  probate   master   also
recommended  that the appointment terminate in  one  year  unless
extended  by  the court, and that Robert vacate the  property  by
October 1, 2008.
          The  superior court exercised its discretion to conduct
a  hearing de novo.2  The court visitor testified at the  hearing
and agreed with the probate masters findings, emphasizing Roberts
lack  of  steady  income.   Barbara testified  about  the  events
leading  to  the foreclosure and her purchase of the  home.   She
described  the repairs she made to the home and Roberts resistant
behavior.   She expressed concern that Robert was then unemployed
and  attributed Roberts monetary problems to his spending on  the
lawsuits,  alcohol, electronics, and unnecessary home-improvement
projects.
          Robert also testified at the hearing.  He described his
employment  history  and the lawsuits he had  filed  against  the
State  and other government entities.  He denied mismanaging  his
funds.   Robert admitted drinking beer and wine daily but  denied
          abusing alcohol.
          The  superior  court  ultimately approved  the  probate
masters    findings3    and   adopted   the    probate    masters
recommendations, except that the date Robert was  to  vacate  the
home was changed to November 1, 2008.
          Robert appeals.
III. STANDARD OF REVIEW
          We  review  the  appointment of a limited  guardian  or
conservator  for  abuse  of  discretion.4   A  court  abuses  its
discretion  if it considers improper factors, fails  to  consider
statutorily mandated factors, or assigns too much weight to  some
factors.5   In  reviewing  factual  findings  used  to  determine
whether  to  appoint a conservator, we apply a clearly  erroneous
standard.6  Clear error is found when we are left with a definite
and firm conviction based on the entire record that a mistake has
been made.7  We review a finding of incapacity for clear error.8
IV.  DISCUSSION
          Robert raises three issues on appeal.  First, he argues
the   evidence  does  not  support  the  need  for  a  protective
appointment  under  AS 13.26.165(2)(A).  Second,  he  argues  the
court  did not make a necessary finding under AS 13.26.165(2)(B),
which mandates that for a conservatorship order a court must find
the person has property which will be wasted or dissipated unless
proper  management is provided, or that funds are needed for  the
support, care and welfare of the person . . . .  Third, he argues
the  court did not fashion the least restrictive protective order
as required by AS 13.26.195(d).
     A.   The Evidence Supports a Protective Appointment Under AS
          13.26.165(2)(A) and (B).
          
          Alaska  Statute 13.26.165(2) permits a court to appoint
a conservator if the court determines:
          (A)  the  person  is  unable  to  manage  the
          persons property and affairs effectively  for
          reasons   such  as  mental  illness,   mental
          deficiency,  physical illness or  disability,
          advanced  age, chronic use of drugs,  chronic
          intoxication,  confinement,  detention  by  a
          foreign power, or disappearance; and
          
          (B)  the  person has property which  will  be
          wasted or dissipated unless proper management
          is provided, or that funds are needed for the
          support,  care and welfare of the  person  or
          those  entitled to be supported by the person
          and that protection is necessary or desirable
          to obtain or provide funds.[9]
          
          1.   Incapacity under AS 13.26.165(2)(A)
          Robert  argues the evidence presented does not  support
the   superior   courts   finding   of   incapacity   under    AS
13.26.165(2)(A).  We disagree.
          Barbara  introduced ample evidence of Roberts inability
to  prioritize his finances, even when he fell behind  in  paying
his  bills  and  his home was on the verge of  foreclosure.   She
          established that Robert misallocated his funds by purchasing ink
for  his printer, painting the exterior of his house, spending  a
significant   amount  on  alcohol  and  tobacco,   and   dwelling
obsessively  on  his  lawsuits.  She also demonstrated  that,  in
refusing to apply for disability benefits for fear that doing  so
would  harm his lawsuits, and in focusing on his lawsuits instead
of  finding steady work, Robert did not take steps to remedy  his
financial problems.  And substantial evidence supports the courts
finding that Barbara has reliably and selflessly labored to  keep
the  Farmer  family financially afloat through a  very  difficult
time.
          Other  evidence  and considerations  also  support  the
superior courts decision.  First, the court did not simply affirm
the  probate masters recommendations in summary fashion;  rather,
it  conducted  a  hearing de novo and heard testimony  from  both
parties.   Second, Roberts own testimony provided  the  court  an
opportunity to gauge Roberts reasoning abilities relating to  his
financial   situation  and  supported  the  courts   finding   of
incapacity.10   Robert not only testified with frequency  and  at
length  about his lawsuits, but also claimed that the  government
had tried to poison him.  Third, the court visitors testimony, as
well  as  the report she submitted, reinforced Barbaras  evidence
that Robert was in need of a conservator.
          Robert argues it was clear error for the court to  find
incapacity  based on his pursuit of lawsuits . . . because  there
was  no  evidence  that  his  pursuit  of  these  suits  was   an
inappropriate dissipation or waste of his financial resources and
there  was no evidence that he chose to finance lawsuit  expenses
instead  of paying his mortgage.  But the court relied on Roberts
fixation with the lawsuits and neglect of his financial situation
not  the  mere fact of the lawsuits themselves  as  part  of  its
basis for finding Robert to be incapacitated.  The court properly
relied  on this factor even if, as Robert argues, the suits  have
some  merit,  the suits might be handled on a contingency  basis,
and  the  exact  amount that Robert spent  on  the  lawsuits  was
unknown.
          Robert challenges evidentiary inferences that he abuses
alcohol  to  the  point  of incapacity or  cognitive  impairment,
arguing  that  [t]here  was  certainly  no  evidence  of  chronic
intoxication  as required for a protective appointment  under  AS
13.26.165(2)(A).  But the statute does not require a finding that
alcohol  abuse  amount  to  chronic  intoxication  or  alone   is
sufficient to establish incapacity.11  The court may find alcohol
abuse  even if that abuse falls short of chronic intoxication  to
be one factor among many others leading to its conclusion that an
individual  is  incapacitated and in need of a conservator.   The
evidence presented supports the courts finding that Robert abuses
alcohol:  Robert drinks every day, sometimes falls asleep with  a
drink in his hand, and spends a significant amount on alcohol.
          Robert argues that it was clear error for the court  to
find  he refused to attend to important financial matters because
[h]is  testimony  .  . . shows that he tended  to  his  financial
matters with every resource he could.  But Barbara and Anita both
disputed  much  of  Roberts testimony that  he  had  sufficiently
          attended to his financial obligations after he stopped working
for  the State.  Although Robert may have made some effort in the
past  to attend to his financial obligations  including providing
for  his  ill  wife   given the conflicting  evidence  we  cannot
conclude the court erred in making its finding.12
          Robert argues it was clear error for the court to  find
that  [h]e exhausted his retirement accounts after a short  time.
He  acknowledges that some evidence exists for this  finding  but
contends Barbara could not provide any specific details, or  even
rough  approximations  about how he spent his  retirement  funds.
Although she did not know how much money was in Roberts accounts,
Barbara  testified that Robert withdrew all his retirement  funds
at  once and made poor spending decisions, including painting the
outside  of his house, obsessively pursuing his lawsuits, pouring
concrete  in  the garage, and purchasing printers and  ink.   She
further  testified that the funds were depleted in  approximately
one  year.   This testimony is sufficient to support  the  courts
finding.
          Robert  also  contends the finding that  utilities  and
similar  expenses went unpaid . . . is not a proper basis  for  a
conclusion  that  [he] suffers from an incapacity  and  cognitive
limitation.   Here  Robert does not seem to  be  challenging  the
basis  of  the  courts factual finding, but rather the  inference
that  such  a  finding  evidences incapacity.   But  capacity  to
perform  routine activities may be relevant in evaluating whether
appointment  of a conservator is appropriate,13 and  because  the
payment  of utilities and similar expenses is a routine household
activity, the court did not err in considering this factor.
          Relying on AS 13.26.109(a),14 Robert also challenges the
courts finding that he refused to be medically evaluated and that
this  refusal could lead to an inference of incapacity.  Although
the  court mentioned Roberts refusal to be evaluated, it does not
appear  the  court  relied on this fact  in  determining  whether
Robert  was unable to manage his finances.  Because the  evidence
is otherwise sufficient to support the courts ultimate finding of
incapacity, we do not need to consider application of the statute
in this case.
          Substantial  evidence  supports  the  superior   courts
finding of incapacity under AS 13.26.165(2)(A), and therefore  it
is not clearly erroneous.
          2.   Property under AS 13.26.165(2)(B)
          Robert argues the superior court erred by not expressly
finding under AS 13.26.165(2)(B) that a conservator was necessary
to prevent dissipation of his assets.15  He goes on to argue that,
even  if  the  court did make the necessary finding,  it  is  not
supported by the evidence.
          As noted above, the superior court adopted the findings
of  the probate master.  The probate master, in recommending that
Barbara  be  appointed  partial  limited  conservator,  did   not
expressly find that the residence or the proceeds from  its  sale
would be wasted or dissipated unless a conservator was appointed.
But  the finding is implicit in the probate masters determination
that  Roberts  ability  to make decisions  and  manage  important
financial  matter is significantly impaired and that  [t]he  most
          important and pressing financial issue is [the] sale of the
family residence.
          Robert  also argues the court erred in failing to  find
that assets would be wasted or dissipated if [he] was not ordered
to vacate his home while it is marketed for sale and that he must
be  removed  from his home in order to sell the home  and  obtain
funds  for  his  care.  This argument confuses  the  decision  to
initially   appoint  a  conservator  with  the   scope   of   the
conservatorship.  Alaska Statute 13.26.165(2)(B) does not require
the  court to find that Roberts assets would be wasted unless  he
was  ordered to vacate his home or that obtaining funds  for  his
care mandated his removal.
          Additionally,  Robert contends the  evidence  does  not
support a finding that he resisted efforts to sell the home.  But
Barbaras  testimony  supports the courts finding   she  testified
that  Robert refused to move into the apartment that she and  her
siblings  rented for him and that he impeded the home  inspection
process.   She  also  described how Robert locked  several  doors
within  the  home  when a realtor arrived, followed  the  realtor
throughout the home, and stated repeatedly that the home was  not
for  sale.  The court was not obliged to accept Roberts testimony
that he would begin to cooperate with a plan to sell the home.16
          We  therefore  reject Roberts argument that  the  court
failed to make the finding required by AS 13.26.165(2)(B).
     B.   The  Court Did Not Abuse Its Discretion in Entering the
          Limited Protective Order.
          
          Robert  argues the courts decision did not comply  with
AS  13.26.195(d), which provides in part that [a] conservator may
be  appointed only if a less restrictive protective order or  the
services of a special conservator are not adequate to protect the
estate  of  the protected person.17  It appears Robert  does  not
contest the sale of the home, only his removal from the home  and
the  subsequent management of the sale proceeds.  He  claims  the
court  should  have allowed Barbara to market the home  for  sale
while  he remains in the home with the right of first refusal  to
purchase  the home.  Robert also argues [t]here is not  a  proper
basis  for issuing an order granting Barbara Farmer the authority
to  make decisions regarding Robert Farmers housing prior to,  or
subsequent  to  the  sale of his home.  He  reiterates  that  the
evidence  does  not support a finding that he cannot  manage  his
financial affairs.
          The    probate   master   expressly   considered    the
intrusiveness  of  his  decision  and  for  that  reason  limited
Barbaras power.  We cannot conclude it was an abuse of discretion
to  mandate that Robert vacate the home in light of the  evidence
that  Robert interfered with Barbaras efforts to sell  the  home.
And  evidence  of  Roberts inability to attend to  his  financial
obligations supports both the grant of authority to assist Robert
with his housing and the post-sale management of Roberts money.
V.   CONCLUSION
          We AFFIRM the superior courts decision in its entirety.
_______________________________
     1    AS 13.26.106(c) requires court appointment of a visitor
in  conservatorship  proceedings and  that  [t]he  visitor  shall
arrange  for  evaluations to be performed and prepare  a  written
report  to  be  filed with the court . . . .  The  visitor  shall
interview  the respondent . . . .  The visitor shall conduct  the
interviews and investigations necessary to prepare the report . .
. .

     2    See Alaska R. Probate 2(f) (stating that superior court
may conduct hearing de novo after probate master makes report and
recommendations).

     3     See Alaska R. Civ. P. 52(a) (The findings of a master,
to  the extent that the court adopts them, shall be considered as
the findings of the court.); Alaska R. Probate 2(e).

     4    Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska 2004)
(citing H.C.S. v. Cmty. Advocacy Project of Alaska, Inc., 42 P.3d
1093, 1096 (Alaska 2002)).  But see In re S.H., 987 P.2d 735, 738-
41   (Alaska  1999)  (applying  clearly  erroneous  standard   to
determine whether it was appropriate to appoint conservator).

     5     H.C.S., 42 P.3d at 1096 (citing S.N.E. v. R.L.B.,  699
P.2d 875, 878 (Alaska 1985)).

     6     Gunter, 87 P.3d at 68 (citing In re S.H., 987 P.2d  at
738-41); see also Alaska R. Civ. P. 53(d)(2).

     7     Casey  v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska
2004) (citing Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001)).

     8     In  re  W.A., 193 P.3d 743, 748 (Alaska 2008)  (citing
Casey, 92 P.3d at 382).

     9    AS 13.26.165(2).

     10     See Dodson v. Dodson, 955 P.2d 902, 907 (Alaska 1998)
(quoting  Demoski  v. New, 737 P.2d 780, 784 (Alaska  1987))  (We
will  generally accept the determination of witnesses credibility
that  are  made by the court as a trier of fact, since the  court
heard and observed the witnesses first hand. ).

     11     See  AS  13.26.165(2)(A) (providing that a court  may
appoint  a  conservator if it finds that the person is unable  to
manage  the persons property and affairs effectively for  reasons
such  as  .  . . chronic intoxication.) (emphasis added).   In  a
previous  decision  regarding AS 13.26.165 we  declined  to  read
additional  requirements into the statute:  We must look  to  the
statute  to  determine its requirements.  It does not express  or
imply  a  requirement of long term inability; it  only  specifies
that  property be in danger of waste or dissipation.  In re S.H.,
987 P.2d at 740 (footnote omitted).

     12     See  Estate of Smith v. Spinelli, 216 P.3d  524,  528
(Alaska  2009) (quoting Peterson v. Ek, 93 P.3d 458, 463  (Alaska
2004))  (noting  that  it is the province of the trial  court  to
. . . weigh conflicting evidence ).

     13     Cf.  In re S.H., 987 P.2d at 740 (observing  that  an
ability to function at some level, perhaps around the house bears
on need for conservator).

     14    AS 13.26.109(a) (A ward or respondent has the right to
refuse to respond to questions in the course of examinations  and
evaluations.  However, the ward or respondent may be required  to
submit to interviews for the purpose of ascertaining whether  the
ward  or respondent lacks the capacity to make informed decisions
about care and treatment services.).

     15     Under  AS  13.26.165(2)(B)  a  court  may  appoint  a
conservator only if it finds the person has property  which  will
be  wasted or dissipated unless proper management is provided, or
that  funds are needed for the support, care and welfare  of  the
person  or those entitled to be supported by the person and  that
protection is necessary or desirable to obtain or provide  funds.
Failure  to make an express finding satisfying subsection  (2)(B)
does  not require automatic reversal.  We review such errors  for
harmlessness.  See In re S.H., 987 P.2d at 739 (noting  that  the
superior  court  did  not make a finding required  by  subsection
(2)(B) but concluding that any error was harmless in light of the
evidence presented).

     16    See In re Estate of Smith, 216 P.3d at 528 (quoting Ek,
93  P.3d  at  463)  (explaining that the trial  court  determines
witness credibility).

     17    AS 13.26.195(d).

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