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In re Neher

Court of Appeals of Colorado, Fourth Division

July 30, 2015

In the Interest of Galen L. Neher, Protected Person, Appellant,
v.
Christopher L. Neher, Petitioner-Appellee, and Ronald W. Servis, Special Conservator, Attorney-Appellee.

Jefferson County District Court No. 12PR542 Honorable Stephen M. Munsinger, Judge

Solem Mack & Steinhoff, P.C., R. Eric Solem, Lance E. McKinley, Englewood, Colorado, for Appellant

Robert A. Lees and Associates, Robert A. Lees, Greenwood Village, Colorado, for Petitioner-Appellee and Attorney-Appellee

OPINION

WEBB, JUDGE

¶ 1 A conservatorship destroys the protected person's autonomy. Not surprisingly, then, even if a person's property "will be wasted or dissipated unless management is provided, " Colorado statutes limit the circumstances in which a court can appoint a conservator. § 15-14-401(1)(b)(II), C.R.S. 2014. This appeal centers on the requirement that clear and convincing evidence must show the person is unable to manage his or her property or business affairs because the person is "unable to effectively receive or evaluate information." § 15-14-401(1)(b)(I).

¶ 2 But should this statute be interpreted - as respondent/protected person Galen L. Neher (Father) argues - to also require that the evidence include medical testimony of the inability? We answer this novel question "no, " and conclude that although the only medical evidence presented indicated that a conservatorship was not required, the trial court's order appointing a permanent conservator was not clearly erroneous. We reject Father's other contentions and affirm that order.

I. Background

¶ 3 After receiving several unsolicited e-mails asking for money, Father sent almost $500, 000 to anonymous offshore bank accounts in transfers ranging from $1000 to $155, 000. Suspecting fraud, his son, Christopher L. Neher (Son), petitioned the court to appoint a special conservator over Father's financial affairs.

¶ 4 The same day that Son petitioned, the court appointed him as special conservator and set a hearing. Then Son moved to cancel the hearing and rescind the conservatorship, but if the court decided to continue the special conservatorship, to appoint a third party as conservator. The court denied the motion to rescind and appointed Deputy Public Administrator, Ronald W. Servis, as special conservator. The court also appointed counsel to assist Father in opposing the petition.

¶ 5 At the first hearing, the parties agreed that Father would undergo a psychological evaluation. The hearing was continued until September. Dr. Stuart Kutz evaluated Father, but he neither prepared a report nor testified.

¶ 6 At the September hearing, Father offered to present evaluations from his primary care physician and his long-term therapist. The court declined to proceed with the hearing on this basis. It granted Son's motion for a psychological evaluation of Father by Dr. Kathryn Kaye and reset the hearing.

¶ 7 On January 4, 2013, the court called the matter up for hearing. But before receiving any testimony, the court invited counsel into chambers, without the parties present, for an off-the-record discussion. According to an affidavit from Father's counsel, the court discussed the apparent need for a protective order.

¶ 8 When the court resumed the hearing, Dr. Kaye testified and affirmed the conclusion in her filed report that Father did not meet the standards for appointing a conservator. At that point, the parties entered into an oral stipulation, which counsel were to reduce to writing. The stipulation provided that although Father would retake control of his affairs in February, for one year he would remain under an accounting firm's "monitoring" and Servis's oversight. The stipulation also forbade Father from transferring funds offshore during that time and provided that if he violated any of its restrictions, either Son or Servis could approach the court. However, the parties did not explain exactly what "monitoring" meant.

¶ 9 Later, the parties disagreed over the terms to be included in a written stipulation. Because of this disagreement, Servis did not return control of Father's estate to him, and Father moved to enforce the oral stipulation. The court directed the parties to set another hearing, which was scheduled for April.

¶ 10 Before that hearing began, the court again invited counsel for both parties to discuss the case in chambers, off the record, and without the parties present. According to the affidavit of Father's counsel, he revealed that Father had attempted to create an offshore trust in the Cook Islands, for the purpose of removing all of his assets from Colorado.

¶ 11 On the record, the court heard argument concerning the stipulation but did not receive any evidence. It denied Father's motion to enforce the stipulation, granted Son's request for a second psychological evaluation, and reset the hearing for May.

¶ 12 The second psychological evaluation did not occur. Mid-afternoon on the day before the May hearing, Son disclosed Gregory Taylor, a certified public accountant (CPA), as an expert witness. Father's counsel immediately filed a motion to strike the disclosure as untimely and incomplete. He did not request a continuance.

¶ 13 Father renewed his objection at the hearing, but again failed to request a continuance. The court allowed Taylor to testify as an expert. After hearing testimony from other experts and Father, the court "continue[d] Mr. Servis' position as the conservator."

¶ 14 Later, the court entered a written order finding by "clear and convincing evidence, pursuant to C.R.S. § 15-14-401(1)(b)(I), that the Respondent [wa]s unable to manage his property and business affairs because he [could not] effectively receive and evaluate information related to the same." The court also found that under section 15-14-401(1)(b)(II), "the Respondent ha[d] property that w[ould] be wasted or dissipated unless management [wa]s provided and that protection [wa]s necessary to protect the Respondent's Estate."

¶ 15 Father moved for a new trial under C.R.C.P. 59(a). He also requested the trial judge to recuse, primarily asserting that because the judge "[i]ndicat[ed] an intent to enter a protective order before evidence of any impairment was entered into the record, " he had a "bent of mind." The court declined to recuse and denied the motion.

¶ 16 Father appeals, primarily on the ground that no medical evidence supported the petition.

II. A Court Can Appoint a Conservator Without Medical Evidence Concerning the Respondent.

¶ 17 Father contends the conservatorship statute "clearly requires medical evidence before a court can properly make a determination of whether an individual is impaired." Because the current statute does not include such a requirement and the prior statute was amended to remove language that might have suggested it, we reject this contention.

A. Preservation and Standard of Review

¶ 18 We assume, without deciding, that this issue is preserved based on Son's concession that Father preserved this issue by raising it in his written new trial motion, on which the trial court ruled.

¶ 19 Questions of statutory interpretation are reviewed de novo. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005). Because a court's primary duty is to give full effect to the General Assembly's intent as expressed by the language it chose, interpretation begins by examining the statute's plain language within the context of the statute as a whole. Bd. of Cnty. Comm'rs v. Hygiene Fire Prot. Dist., 221 P.3d 1063, 1066 (Colo. 2009). "Words and phrases should be given effect according to their plain and ordinary meaning . . . ." Farmers Grp., Inc. v. Williams, 805 P.2d 419, 422 (Colo. 1991). If the statute is "clear and unambiguous on its face, " then the court applies it as written. Wells Fargo Bank, Nat'l Ass'n v. Kopfman, 226 P.3d 1068, 1072 (Colo. 2010).

B. Law

¶ 20 A court may appoint a conservator of an adult if it determines:

(I) By clear and convincing evidence, the individual is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance, or because the individual is missing, detained, or unable to return to the United States; and
(II) By a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual or of individuals who are entitled to the individual's support ...

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