This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1158

 

 

In re: Special Guardianship of

Wilbert H. Schultz, Ward.

 

 

Filed April 13, 2004

Affirmed
Crippen, Judge
*

 

Ottertail County District Court

File No. C9-01-1774

 

Michael J. McCartney, McCartney Law Office, 216 North Fifth Street, Breckenridge, MN† 56520 (for appellant)

 

Jamison Cichosz, Nycklemoe, Ellig & Nycklemoe, 106 East Washington, Fergus Falls, MN† 56537 (for respondent)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Hudson, Judge, and Crippen, Judge.

U N P U B L I S H E D†† O P I N I O N

CRIPPEN, Judge

††††††††††† Wilbert Schultz has had a court-appointed guardian since 1997.† In 2003, Schultzís sister, appellant Alma Dittus, challenged the annual accounting of respondent Lutheran Social Services and petitioned to have them removed as guardian.† The district court denied these motions.† Because the court properly applied the law and exercised its discretion, we affirm.

FACTS

††††††††††† Schultz is currently under the guardianship of respondent.† Schultzís estate includes an undivided half interest in farmland in Wilkin County; the co-owners are Dan Solum and his wife.† The district court allowed the 2003 guardianship accounting over appellantís objections and rejected her motion to replace respondent as guardian.

††††††††††† Both Schultz and the Solums paid approximately $881 for tree removal from the farmland, and appellant claims this cost is unreasonable.† Respondent selected the county to remove the trees because the Solums believed the countyís price was favorable to the owners.† Appellant testified that the county should take the trees that are near the road without charge.† She also testified that the neighbors are always willing to take down the trees for free to get the wood, but she based that observation on knowledge of what one neighbor had done with one tree.

††††††††††† Pending sale of the farmland, respondent is renting Schultzís half interest to the Solums for $65 per acre.† Appellant, who lives in Nebraska, testified that the price is low, stating that someone previously bid $80 per acre to rent the land for growing sugar beets.†
Appellant has not furnished a current bid for higher rent.

††††††††††† Respondentís staff person most actively involved in the guardianship is Eunice Digre.† She does not deal directly with Schultz, but instead deals more with appellant.† Digreís supervisor, along with respondentís accountant and another employee, are also involved in administration of the guardianship.† Digre has never seen the farmland, but other respondent staff has. †

††††††††††† Digre testified that respondent charges $55 per hour, no matter who is working on the project, for its work.† If respondentís employees meet to discuss a project, only one employee bills for the meeting.† Appellant offered evidence that Dennis Lemke, a former farmer and local financial professional, charges $35 per hour to serve wards.† Regarding appellantís challenges of the arrangement for respondentís counsel, Digre testified as to her belief that the firm charges its wards the firmís normal hourly fees.†

D E C I S I O N

1.† Removal of the Guardian

††††††††††† The district courtís decision whether to remove a guardian is reviewed for clear abuse of discretion.† In re Kocemba, 429 N.W.2d 302, 306 (Minn. App. 1988).† The decision whether to remove the guardian is to be based on performance of duties and the best interests of the ward.† Minn. Stat. ß 525.61, subd. 3 (2002).† A new guardian is to be appointed if the old guardian failed ďto provide for the best interests of [Schultz]Ē and Schultzís best interests will be better served by the new guardian.† Id.†

††††††††††† Appellant argued multiple reasons to remove respondent as the guardian, but she offered the district court no evidence to compel the points of view rejected by the court.† There is no significant evidence that respondentís fees are inappropriate or excessive, that the current leasing arrangement with the Solums is inappropriate for Schultzís present situation, or that Digreís failure to personally visit the property damages the value of respondentís service on behalf of Schultz.† Because there was so little evidence to support any of appellantís arguments, the district court did not abuse its discretion in refusing to remove respondent as the guardian.

2.† Annual Accounting

††††††††††† Guardians may recover reasonable fees for their services.† In re Mansur, 367 N.W.2d 550, 552 (Minn. App. 1985), review denied (Minn. July 11, 1985).† This court reviews the district courtís decision concerning fees on a clearly erroneous standard.† Id.† Fees are to be allowed if they are incurred in good faith.† See In re Glenn, 381 N.W.2d 77, 79 (Minn. App. 1986), review denied (Minn. Apr. 11, 1986).††

††††††††††† Appellant challenges respondentís fees as excessive.† But the mere fact that Lemke charges less per hour does not establish that respondentís fees are unreasonable.† Moreover, there is evidence to justify the district courtís ruling on this issue, because respondent charges Schultz its standard rate, which is the same hourly rate numerous other wards pay.† There is no evidence to support appellantís allegation that respondentís fees are too high for the services it provides.

††††††††††† Regarding the cost of tree removal, the district court findings imply the courtís finding that the Schultzís estate was favored by the ďcoincidenceĒ that the county was willing to do the work ďat such a reasonable rate.Ē† There was evidence to support this finding, and appellant produced no significant evidence to the contrary.† The fact that the co-owners, who split the cost evenly with Schultz, believed that this was a good rate is evidence that it was in fact a rate that was favorable to the owners.†

††††††††††† Likewise, no evidence exists to support the remainder of appellantís arguments.† There is no evidence indicating that (1) an oral agreement to lease the property is unreasonable, (2) respondentís arrangement with its attorneys is unreasonable, and (3) poor communication between the parties has had any effect on the accounting.† The district court did not abuse its discretion in ruling for respondent on these issues.

††††††††††† Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.