This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2008

In Re: Conservatorship of

LaVina M. Halla, Conservatee.

Filed May 13, 1997

Affirmed

Willis, Judge

Carver County District Court

File No. P7931558

Robert A. Nicklaus, Nicklaus Law Firm, 103 West Second Street, P.O. Box 116, Chaska, MN 55318 (for Appellant David Halla)

Dennis P. Moriarty, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN 55379 (for Respondent Conservator)

Joseph T. Dixon, Jr., Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for Respondent Donald Halla)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant David Halla challenges the district court's denial of his petition to remove Connie Schmid as conservator of LaVina Halla's estate and its determination that Schmid is not required to seek court approval before initiating legal proceedings on LaVina's behalf. We affirm.

FACTS

In January 1994, Connie Schmid was appointed conservator of the estate and person of LaVina Halla, then 81 years old, who had been diagnosed with dementia. In August 1994, David Halla, LaVina's son, moved with LaVina to Texas. In July 1995, the district court granted David co-conservatorship of the person of LaVina. Schmid retained conservatorship of the person with respect to visitation issues and conservatorship of the estate. Donald Halla, LaVina's son and David's brother, is trustee for the LaVina Halla trust. Donald and David are co-trustees of the trust of Selmer Halla, LaVina's late husband and Donald and David's father.

This is an appeal from two orders of the district court. David challenges the district court's denial of his petition to remove Schmid as conservator of LaVina's estate and its conclusion that Minn. Stat. § 525.56, subd. 4(3), does not require Schmid to obtain court approval to initiate legal proceedings on behalf of LaVina.

D E C I S I O N

1. Removal of Conservator

David argues that it is in LaVina's best interests that Schmid be removed as the conservator of her estate. A conservator may be removed and replaced if the conservator's actions are not in the best interests of the conservatee. Minn. Stat. § 525.61, subd. 3(1) (1996); In re Conservatorship of Kocemba, 429 N.W.2d 302, 306 (Minn. App. 1988). It is within the district court's discretion to determine whether a conservator should be removed. Cf. In re Conservatorships of T.L.R., C.A.R., D.M.R., 375 N.W.2d 54, 57 (Minn. App. 1985) (concluding that use of word "may" in statute means probate court has discretion to determine whether judgment is appropriate).

David argues that Schmid's failure to act in LaVina's best interests is evidenced by his (1) failure to sell the Edina home and the Florida condominium, (2) unnecessary initiation of a petition to order sanctions against David and to remove the trustees of the Selmer Halla trust, (3) failure to require an annual accounting of the assets of the LaVina Halla trust, (4) petition to reduce support payments to LaVina, (5) failure to pursue litigation against Donald for the loss of gold coins, (6) violation of statutory duties, and (7) failure to claim the proceeds from the sale of the Edina home.

LaVina moved out of her Edina home in 1993. Although it appears she hoped someday to move back in, her health deteriorated to the point where it would not have been possible for her to live there without a caregiver. Schmid had no authority to sell the property because it was owned by the LaVina Halla trust, but he wanted it sold because the conservatorship was paying for the property's maintenance. Donald, as trustee of the LaVina Halla trust, resisted selling the home because of LaVina's hope of returning to it, but in April 1996 he sold the property. David argues that Schmid should have brought an action to force the sale of the home. Schmid responds that such a lawsuit would not have been in LaVina's best interests because it would have been unlikely to succeed, particularly without the testimony of LaVina, who would not have been a competent witness because of her health.

There is a dispute over whether the Florida condominium is owned by the LaVina Halla trust or by LaVina herself, and thus controlled by the conservator of her estate. The property was quitclaimed to the LaVina Halla trust in August 1992, when LaVina was the trustee, before the restatement of the trust in December 1992 that made Donald and his son trustees. Until 1995, David paid the real estate taxes on the condominium and submitted those expenses to the conservatorship for reimbursement, and the conservatorship paid the maintenance fees. At the April 1996 hearing, the court declined to decide the issue of who owned the property, but determined that all the parties agreed the property would be sold.

David argues that petitions Schmid brought in district court were unnecessary and therefore not in LaVina's best interests. Schmid first brought a petition for relief against David for moving LaVina to Texas without keeping Schmid apprised of her whereabouts and for retaining certain assets that Schmid believed should be under the conservatorship. The court did not grant the relief Schmid requested, but did require David to provide the conservator with an accounting of LaVina's assets. Schmid brought a second petition to remove the trustees of the Selmer Halla trust and to appoint trustees to distribute the trust to the conservatorship. That petition was dismissed when Schmid discovered other funds available to the conservatorship and no longer needed the Selmer Halla trust funds to fulfill the obligations of the conservatorship. The district court found that neither petition was unnecessary.

David argues that Schmid failed to demand from Donald an accounting of the LaVina Halla trust, referring to language in the trust that requires an accounting. Schmid testified that he requested information regarding the trust assets from Donald and that he promptly received the information.

David argues that Schmid's petition to reduce the amount of monthly payments from the conservatorship to LaVina was not in her best interests. Schmid argues that, for a time, the amount of the monthly payments was based on LaVina's expenses when she lived in a hotel in Texas with David and that her food and lodging expenses decreased when she and David moved into his Texas residence. The district court found that because LaVina's living situation had changed and because LaVina is harmed by unnecessary depletion of the conservatorship's assets, it was not unreasonable for Schmid to bring the petition.

David argues that Schmid's failure to sue Donald for loss of gold coins worth approximately $5000 was not in LaVina's best interests. Donald delivered the coins to LaVina in 1993, and they were subsequently lost. Schmid concluded that the cost of litigation would not be worth its potential benefit.

David argues that Schmid violated his statutory duties to LaVina by (1) failing to make an annual report pursuant to Minn. Stat. § 525.58, subd. 4(c) (1996), (2) failing to pay money that should have been paid to LaVina, (3) failing to collect dividend income from trust accounts, (4) allowing Donald to purchase carpeting for the Edina home before it was sold, (5) inquiring "whether the sons would approve an annual gift of $10,000 each" at a time when he said he was having trouble making support payments to LaVina, (6) making support payments late, and (7) filing the conservator's annual account late. The duty to file an annual report of changes in the mental and emotional condition of a conservatee pursuant to section 525.58, subdivision 4(c), is a duty of the conservator of the person, who, in this case, except for visitation issues, is David, not Schmid. The duties of the conservator of an estate include paying for the support and maintenance of the conservatee, paying the debts of the conservatee, and managing the estate for the benefit of the conservatee. Minn. Stat. § 525.56, subd. 4 (1996). The evidence shows that Schmid made ample support payments to LaVina, and there is no evidence that he failed to pay debts or to manage the estate properly. The conservator of the estate also has the duty to file an annual account within 30 days after the anniversary of the conservator's appointment. Minn. Stat. § 525.58, subd. 1 (1996). The district court found that the annual account's lateness was attributable to the difficulty that Schmid had in obtaining necessary information and documents from David. The record supports the district court's conclusion that Schmid did not breach any of his statutory duties.

Finally, David argues that Schmid did not act in LaVina's best interests because he did not claim the proceeds from the sale of the Edina home for the conservatorship. The sale of the home occurred after the April 1996 hearing, and at a subsequent hearing the district court continued David's petition on the issue. The matter is, therefore, not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding that issues not presented to and considered by the district court will not be considered on appeal).

The district court did not abuse its discretion in finding that Schmid acted in LaVina's best interests and fulfilled his duties as conservator of her estate. The district court's refusal to remove Schmid as conservator was, therefore, proper.

2. Specific Findings Pursuant to Minn. Stat. § 525.61, subd. 3

David argues that the district court was required to make specific findings pursuant to Minn. Stat. § 525.61, subd. 3 (1996), and that it failed to do so. Subdivision 3 is entitled "Appointment of new guardian or conservator" and provides that a court shall appoint a new conservator if it finds that

(1) the existing * * * conservator has failed to perform the duties associated with the * * * conservatorship or to provide for the best interests of the * * * conservatee; and

(2) the best interests of the * * * conservatee will be better served by the appointment of a new * * * conservator.

The court's decision must include the specific findings required by section 525.551, subdivision 5.

Minn. Stat. § 525.551 (1996) governs the appointment of a conservator or guardian. Subdivision 5 provides that

[i]n all cases the court shall make specific written findings of fact, state separately its conclusions of law, and direct the entry of an appropriate judgment or order.

The statute lists the specific findings that must be made in appointing a conservator, such as a finding that the appointment is in the best interests of the conservatee and a finding that the conservatorship is voluntary, or if it is not voluntary, a finding that the proposed conservatee is incapacitated and in need of supervision and protection. Id. There is no requirement that a court make such findings in deciding not to remove a conservator.

David cites In re Conservatorship of Lundgaard, 453 N.W.2d 58 (Minn. App. 1990), in support of his argument that the district court's findings were too general. This court held in Lundgaard that findings that do not address the factors listed in Minn. Stat. § 525.551, subd. 5, do not comply with the requirements for appointing a conservator. Id. at 63. This case, however, is about the proposed removal of a conservator, not the appointment of a conservator. The district court was, therefore, not required to make the specific findings listed in Minn. Stat. § 525.551, subd. 5.

3. Authority of Conservator to Initiate Litigation

David argues that Schmid needs court approval to initiate a lawsuit on behalf of LaVina. Pursuant to Minn. Stat. § 525.56, subd. 4(3), a conservator has

[t]he duty to possess and manage the estate, collect all debts and claims in favor of the ward or conservatee, or, with the approval of the court, compromise them, institute suit on behalf of the ward or conservatee and represent the ward or conservatee in any court proceedings, and invest all funds not currently needed for the [support, maintenance, and satisfaction of debts] and the management of the estate.

Because the clause "with the approval of the court" refers only to compromising debts or claims, Schmid would need court approval to compromise debts or claims, but he may institute suit on Lavina's behalf without court approval.

Further, even if Schmid needed court permission to institute suit, the district court has explicitly granted such permission here, by providing in its order dated October 10, 1995, that

[t]he Conservator of the Estate shall have authority to take whatever action is necessary, including the commencement of litigation, to assure that the Conservatorship shall have sufficient monies to satisfy the obligations of the Conservatorship.

The district court correctly determined that Schmid has the authority to initiate legal action on behalf of Lavina.

Affirmed.