SWEEPING DUSTBUNNIES
November 18, 2010 § 2 Comments
Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?
The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.
Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.
Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.
And that is when the discombobulating deluge of dustbunnies (¤) began to develop.
It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.
Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.
Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.
In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.
Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.
Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.
In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.
To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.
They’re beginning to pile up, aren’t they?
The chancellor set aside the order (he was likely not happy with the way it had been handled) and eventually ruled that the account was Margaret’s. A ¤.
At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.
The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.
Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.
The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.
Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.
So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.
DO I NEED TO FILE A MOTION FOR A NEW TRIAL TO PROTECT MY RIGHT TO AN APPEAL?
November 16, 2010 § Leave a comment
Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion. In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery. It raised a question in my mind whether we were poised to go in a new direction.
MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above. It states:
When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.
Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal. One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point). Is a motion necessary to preserve those points?
Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial. Your mileage may vary.
AN ALIMONY TAX CONSEQUENCE YOU NEED TO CONSIDER
November 12, 2010 § Leave a comment
Internal Revenue Code § 71(f), provides that when alimony payments last three years or less, they will not likely be treated as tax deductible, even if the divorce judgment specifically states that they are deductible.
You need to talk this over with a CPA to get some guidance before you draft your PSA or have your client testify, for example, that she wants 24 months of rehabilitative alimony. This is one of those “tax consequences” of the award that is one of the Armstrong factors that the court is supposed to consider. If you don’t put evidence in the record about it, you won’t have to worry about it because the trial judge simply won’t give it any thought. Your client may call you later and ask for some financial assistance, though, and it probably won’t be a pleasant conversation.
As with all IRS rules, I am sure that there are ways to draft an agreement to avoid the problem, and, of course, the amount of alimony can be adjusted up or down to accommodate the tax effects.
This IRS rule underlines the importance of including in your property settlement agreements a disclaimer that you have not provided any tax advice, and that the parties have been encouraged to get tax advice from a qualified expert.
SOME THINGS YOU MAY NOT KNOW ABOUT GUARDIANSHIPS
November 10, 2010 § 2 Comments
Here are some things you may not already know about guardianships. Some of them have teeth that can draw blood if they catch you unawares …
- MCA § 93-13-38, provides that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
- MCA § 93-13-33, requires that the guardian return an inventory within three months of the appointment, and states: “Any guardian who shall fail to return inventories may be removed and his bond be put in suit, unless he can show cause for the default.”
- When closing out a guardianship, the requirements of MCA § 93-13-77, must be satisfied. That section requires that a final accounting filed, and that the ward be summoned and given notice to be and appear before the court on a day not less than one month after the date that the summons is served or after completion of publication, to show cause why the accounting should not be approved. The accounting can not be approved earlier than one month after completion of process. All the requirements to close a guardianship are here.
- When a guardian has more than one ward, each ward’s business must be accounted for separately. MCA § 93-13-69.
- A child 14 or older has a statutory right to choose his or her guardian. If the ward is over 14, you should have the child join in the petition.
- Guardianship of a minor ceases by operation of law at age 21, and, in the discretion of the Chancellor, at age 18. The guardianship may also be terminated by order of the court at any time that the estate has a value less than $2,000 and no further funds or property are anticipated to come into the guardian’s hands. MCA § 93-13-75.
- Any claim for a guardian’s fee must include the information required in Uniform Chancery Court Rule 6.11.
- A “solicitor’s fee” (MCA § 93-13-79) may be allowed for the attorney, and the claim for it must be supported by an itemized statement of services rendered in the same form as that required for the guardian’s fee, plus the information required in Rule 6.12 of the Uniform Chancery Court Rules.
PUBLISH RIGHT OR PERISH
November 9, 2010 § 4 Comments
We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known. You can read that post here.
When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.
MRCP 4(c)(4)(A) states in part:
… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit.
Your first step is to send your client out into the world to make an effort to find the defendant. Have her call his relatives and ask about where he is. If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet. If he remarried, try to contact his later spouse or children. Suggest she call his former employers or co-workers. Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.”
After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.” You must include that language, or your publication will be a nullity.
The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication. The publication must be substantially in the form of MRCP Form 1-C.
Publication is once a week for three successive weeks in a newspaper published in the county. The publication notice certified by the newspaper is filed in the court file by the lawyer.
The defendant has thirty days from the date of first publication within which to file a responsive pleading.
Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant. There is no case law defining the proof necessary to satisfy the diligent inquiry requirement. In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:
There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry. There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.
In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.
In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.
I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant. In one case, the plaintiff testified that the last she heard her husband was in prison in Texas. I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate. Sure enough, they went back to the drawing board and found him on an internet prisoner locator site. They then got personal process on him and were able to proceed with an uncontested divorce.
The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend. If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate. Don’t take your client’s word for it that she has tried to find him and failed. Make her go through the process of trying.
THE PROPER NAMES OF PLEADINGS
November 8, 2010 § 3 Comments
Rule 7, MRCP, states:
“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or third-party answer.”
and
“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.”
Early on, the appellate courts held that the trial courts are to look beyond the name given to the pleading by the drafting attorney to the substance of the document. In other words, calling a counterclaim a “countercomplaint” or calling a petition a “motion” does not deprive the court of authority to act.
Still, styling a pleading incorrectly can cause confusion and may even lead the trial court into error, as it did in the case of Sanghi v. Sanghi, 759 So.2d 1250 (Miss. App. 2000).
The better practice is to use the proper nomenclature when drafting pleadings, so that your intent is clear and you can at least look like you know what you are doing.
I have looked at the rules and studied the few cases on the subject and have come to the conclusion that the following table sets out the proper names to be used for various pleadings, at least until the appellate courts give some more definitive guidance on the subject.
| Function | Title of Pleading | Party Filing and Opposing Party |
| Initiate a new lawsuit not based on a prior judgment | Complaint | Plaintiff and Defendant |
| Answer a Complaint | Answer | Defendant and Plaintiff |
| File a claim by defendant against the plaintiff | Counterclaim | Counterclaimant and Counterdefendant |
| File a claim by defendant against co-defendant | Cross-claim | Cross-claimant andCross-defendant |
| Initiate a lawsuit seeking modification or enforcement of existing judgment | Petition | Petitioner and Respondent |
| Answer a Petition | Answer | Respondent and Petitioner |
| File a claim by respondent against the petitioner | Counterclaim | Counterclaimant and Counterrespondent |
| File a claim by respondent against a co-respondent | Cross-claim | Cross-claimant and cross-respondent |
| Ask the court in an already-filed action for some relief (e.g., temporary relief, compel discovery, summary judgment, etc.) | Motion | Movant and Respondent |
RULE 8.05, AMENDED
November 5, 2010 § Leave a comment
The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.
In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”
Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.
DODGING THE MRCP 36 BULLET
November 3, 2010 § 1 Comment
FN1. “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow…. Miss.R.Civ.P. 36(a).
“Such admissions, however, are not necessarily irrevocable. Sawyer, 556 So.2d at 697-698 (citing Educational Placement Services, 487 So.2d at 1318). Rule 36(b) provides the procedure to revoke admissions:
“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission …. [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Miss.R.Civ.P., Rule 36(b).
“The Martins made no attempt to withdraw or amend the Requests for Admissions under Rule 36(b); they merely untimely filed the Answers to the Simmons’ Request for Admissions. Essentially, the Martins argue that the filing of a late response to Request for Admissions is the equivalent of requesting withdrawal or amendment of the admissions. The Simmons respond that even if this were true, they have been prejudiced due to the death of Wesley Simmons, a material witness. Cf. Brook Village North Asso. v. General Electric Co., 686 F.2d 66, 70 (1st Cir.1982).
“A number of courts do allow untimely Answers to Requests for Admissions, when to do so would aid in the presentation of the merits of the action and no prejudice would ensue to the party who made the request. See e.g., Aldrich & Co. v. Donovan, 778 P.2d 397, 399 (Mont.1989); Herrin v. Blackman, 89 F.R.D. 622, 624 (W.D.Tenn.1981); *257 Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648, 649 (Alaska 1981); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D.1981); Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D.1980); Marshall v. Dist. of Columbia, 391 A.2d 1374, 1379 (D.C.Ct.App.1978); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C.Tex.1977); See also, 8 Wright & Miller, Federal Practice and Procedure § 2257 at 719-720 (1972); 4A Moore’s Federal Practice 2d ed., Admission of Facts-Procedure § 36.05(4). Other courts allow untimely answers to a request for admissions when there has been excusable neglect or compelling circumstances. See e.g., Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966).
“The problems encountered by the Martins in this case could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse. See Sawyer, 556 So.2d at 698; Educational Placement Services, 487 So.2d at 1318. However, we need not reach the issue whether withdrawal or amendment may be allowed when there is no excusable neglect but a party is not prejudiced because the chancellor was not called upon to exercise his discretion to allow the withdrawal of the amendment of the answers to the admissions under Rule 36(b). See Diversified Communications v. Godard, 549 A.2d 362, 363 (Maine 1988). Since the lower court was never asked to exercise its discretion under Rule 36(b), the trial court properly followed our holding in Educational Placement Services v. Wilson, 487 So.2d 1316 (Miss.1986). We therefore are not called upon to determine if an abuse of discretion occurred and we find the chancellor properly applied Mississippi law to this issue.”
EXEMPT PROPERTY AND ESTATES
October 28, 2010 § 14 Comments
You’re handling an estate of a decedent whose spouse predeceased him. The decedent was a man of modest means with a two-bedroom home in town, some furniture and appliances, an older car, some savings and $6,000 in a 401(k) account. There’s not enough cash to pay all the creditors’ claims. The surviving children and grandchildren want you to close the estate as soon as possible. Do you advise them to sell the furniture at an estate sale to muster up enough cash to satisfy the creditors? Or should you get court approval to sell the house, pay the debts, and distribute what’s left?
Not so fast. All that property may not even belong in the estate in the first place. It may not be subject to the creditors’ claims at all.
MCA § 91-1-19 provides in part:
The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”
What this language means is that the property that is exempted by Mississippi law from sale under execution or attachment descends automatically, not through any estate, as stated in the statute. You would be shortchanging the statutory survivors considerably by not pursuing the exemptions.
It’s important to know what are the exemptions. MCA § 85-3-1 sets out the personal property and financial assets that are exempt:
(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:
(i) Household goods, wearing apparel, books, animals or crops;
(ii) Motor vehicles;
(iii) Implements, professional books or tools of the trade;
(iv) Cash on hand;
(v) Professionally prescribed health aids;
(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.
Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.
(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.
(ii) Income from disability insurance.
(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:
(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;
(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and
(iii) An individual retirement account.
(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.
(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.
(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.
(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).
(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.
(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.
(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.
(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.
(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.
MCA § 85-3-21 establishes the homestead exemption.
There are other exemptions that are set out in the cross-references to the code sections cited.
MCA § 91-7-117 requires the appraisers to set apart the exempt property.
As attorney for the estate, you have a duty to determine what assets need to be declared exempt and not included in it. In moderate estates it could mean the difference between survivors getting nothing and the survivors getting something.
Now re-read the first paragraph above. Do you see it differently?
DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS
October 27, 2010 § 1 Comment
Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator. The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney. After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis. The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.
Frank retained another attorney and appealed the Chancellor’s decision.
The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010.
There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.
There is no question that Frank Lewis was present at the hearing with his retained attorney. Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court. In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver. The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court. The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.
The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with. If there are two relatives within the third degree, you must join them. If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.
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