This opinion will be unpublished and

may not be cited except as provided by

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




In Re General Guardianship of

Susan Marie Sullivan, Ward.

Filed November 25, 1997


Foley, Judge**

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

Dakota County District Court

File No. P0-88-22686

Patrick Sullivan, 1141 Ivy Hill Drive, Mendota Heights, MN 55118 (Pro Se Appellant Guardian)

Wynn C. Curtiss, Vesely, Miller & Steiner, P.A., 1011 First Street S., 400 Norwest Bank, Hopkins, MN 55343 (For Respondent Maureen Vachuska)

Angela M. Amann, LeVander, Gillen & Miller, P.A., 633 South Concord, P.O. Box 298, South St. Paul, MN 55075 (For Respondent Special Guardian John Marien)

Mary L. Golike, Golike Law Office, 2121 Cliff Drive, #212, Eagan, MN 55122 (Guardian Ad Litem for Ward)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Foley, Judge.


FOLEY, Judge

Patrick Sullivan appeals his removal as co-guardian of the estate of Susan Sullivan. We affirm.


In 1993, appellant Patrick Sullivan and respondent Maureen Vachuska were appointed co-guardians of the estate and person of their mother, Susan Sullivan. Appellant has handled all of the bills, annual accounts, well-being reports, taxes, and other financial decisions without respondent's involvement. Communication between the co-guardians has been lacking, and several duties of the guardians have been neglected. For example, annual accounts were past due for 1994 and 1995.

In July 1996, appellant entered into a contract to sell the ward's land. Respondent was not involved in any of the negotiations, and appellant did not discuss the terms of the agreement with her. Appellant did not contact the buyer when the buyer wanted to close in late 1996. Thus, at the end of December 1996, the buyer served a summons and complaint on respondent. The summons and complaint alleged that the co-guardians would owe damages if they did not close by January 13, 1997. In response, respondent retained attorney Miller. The closing was held on January 13, 1997, with both appellant and Miller present. Appellant testified at the hearing that Miller's services were not necessary.

Appellant opened a new account and deposited the proceeds of the sale. He never told respondent where he made the deposit. Later, appellant invested the money in government securities. He did not keep respondent informed of his decision to invest or discuss it with her, except to ask if she had investment suggestions. He testified he did not want her to have access to the money, because they disagreed about whether to pay the attorney's bill. In January 1997, respondent wrote to appellant suggesting they cooperate. Appellant did not contact respondent to discuss the bills, investments, or annual accounts.

On February 18, 1997, respondent filed a petition to remove appellant as a co-guardian. After a hearing, the court allowed both appellant and respondent to continue as guardians of the person. However, it found they had not cooperated on financial matters and had failed to fulfill several duties, and removed both of them as guardians of the estate. A successor guardian was appointed. On April 4, 1997, Patrick Sullivan appealed his removal.


Appellant first argues that the decision of the district court is invalid, because the judge had no authority to hear the case. Appellant filed a notice to remove the assigned judge from participation in guardianship matters in 1988. When the court file grew, a second file folder was opened. The notice of removal was not noted on the second file, and the originally assigned judge presided over several guardianship matters. Appellant now argues that the order removing him as guardian is not valid, because the original judge presided over the hearing. Appellant did not bring his notice of removal to the attention of the judge before or during any of the hearings at which that judge presided.

"Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove." Minn. R. Civ. P. 63.03. When a judge does not honor a removal notice, further exercise of judicial power generally is reversible error and requires a new hearing. Ellis v. Minneapolis Comm'n on Civil Rights, 295 N.W.2d 523, 525 (Minn. 1980). However, jurisdictions uniformly have held that where the parties do not make the judge aware of the affidavit of prejudice and the judge presides over the case, the affidavit of prejudice has been waived.

In Clark v. State, 286 N.W.2d 344 (Wis. 1979), the defendant filed an affidavit of prejudice. There was no evidence that the judge ever considered it, and the defendant and his attorney never communicated with the clerk of court or judge about it or objected when that judge presided at a hearing. Id. at 346. The court held the affidavit was invalid because it was untimely, but noted that even if it had been timely, under these facts, it had been waived. Id. at 349. Similarly, the appellate court in Illinois has also held that proceeding to trial before a judge against whom the party has filed an affidavit of prejudice constitutes waiver. People v. Bach, 393 N.E.2d 563, 566 (Ill. App. Ct. 1979).

In State v. Smith, 539 P.2d 101 (Wash. Ct. App. 1975), the court held that the defendant's failure to bring a year-old affidavit of prejudice to the attention of the judge at the time of the hearing constituted waiver. Id. at 102. In that case, the affidavit was filed in a timely fashion, and the case was tried by another judge. Id. The defendant later was arrested for violating his probation and the judge who had been removed presided over the hearing to revoke the probation. Id. The defendant did not object to the authority of the judge. Id. The court stated, "We do not believe that it should be the responsibility of the trial judge to meticulously examine each file before him for the possible existence of an affidavit of prejudice," and that it would not unduly burden attorneys to bring affidavits to the attention of judges, especially when there are long periods of time between proceedings. Id. at 103.

We agree with these cases and hold that the affidavit of prejudice has been waived. Appellant filed his affidavit of prejudice nine years ago, has appeared before the originally assigned judge several times for guardianship matters, and did not object to that judge's authority until this appeal. Under these circumstances, appellant's affidavit of prejudice is no longer valid.

Appellant next argues that notice of the successor guardian was not given to the adult children of the ward.

If a guardian or conservator dies, resigns, or is removed, the court may appoint a successor with at least 14 days prior notice to the ward or conservatee, a spouse, parents, adult children and siblings, and to other persons as the court may direct.

Minn. Stat. § 525.59 (1996). Appellant received notice of the hearing to remove him as co-guardian on February 18, 1997, and the hearing was held on March 10, 1997. Thus, notice was served 21 days before the hearing. The adult children of the ward had adequate notice of the hearing and that a replacement guardian may be appointed.

Appellant also argues that he should not have been removed as guardian. The court has broad powers in appointing a guardian and in assuring that the ward's interests are protected. Schmidt v. Hebeisen, 347 N.W.2d 62, 64 (Minn. App. 1984). An appellate court will not interfere with the exercise of this discretion unless the discretion has been clearly abused. Id.

Upon a motion to remove a guardian or conservator and appoint a new guardian or conservator, the court shall consider whether the existing guardian or conservator has performed the applicable duties and whether the continued appointment of the guardian or conservator is in the best interests of the ward or conservatee. The court shall appoint a new guardian or conservator if it finds that:

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

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

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

Minn. Stat. § 525.61, subd. 3 (1996). "The court's finding as to the best available guardian must specifically address the reasons for the court's determination that the appointment of that person is in the best interests of the ward or conservatee." Minn. Stat. § 525.551, subd. 5 (1996).

The district court found that appellant failed in his duties as a guardian. Specifically, the court found appellant

has opened bank accounts without the knowledge or permission of the co-guardian[,] * * * has negotiated a purchase agreement for land without the involvement of the co-guardian[,] and has maintained funds in accounts without divulging the location of such account to the co-guardian.

The court also found appellant had failed to file annual reports in a timely manner. We hold it was not an abuse of discretion for the court to find that appellant failed to perform duties required of a guardian.

The statute also requires that the court make a determination that appointing a successor is in the best interest of the ward. The district court did not use the words "best interest" in its order. However, it found that it was "unlikely that removal of one of the parties as co-guardian would result in increased cooperation and it is necessary to appoint an independent guardian of the estate." This statement is adequate as a finding that a successor is in the ward's best interest.