Michael T. Johnson v. Cathy L. Johnson

Opinion issued March 17, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00813-CV MICHAEL TERRY JOHNSON, Appellant V. CATHY LATRICE JOHNSON, Appellee On Appeal from Probate Court No. 1 Harris County, Texas Trial Court Cause Nos. 343667 & 343667-401 MEMORANDUM OPINION This appeal arose from a contested guardianship proceeding between children of the proposed ward, Daisy Mae Johnson, an incapacitated person. Appellant, Michael Terry Johnson, filed for appointment as guardian of his mother; appellee, Cathy Latrice Johnson, contested Michael’s application and brought a cross-application for guardianship. The court appointed an attorney ad litem to represent Mrs. Johnson’s interests. After a trial without a jury, judgment was entered appointing Cathy the permanent guardian of Mrs. Johnson’s person and her estate. In two issues, Michael appears to contend that the trial court erred in denying his application and appointing Cathy, and in denying his motion for new trial. We affirm. BACKGROUND Daisy Mae Johnson is a 73-year-old widow and mother of nine children. In 2000, she was diagnosed with Alzheimer’s disease. During her decline, Mrs. Johnson asked her daughter, Cathy, to oversee her personal affairs, and a joint checking account was opened. In 2001, after the family noted a further decline in Mrs. Johnson’s mental faculties, Cathy moved into her mother’s home and began acting as her primary caretaker. Cathy and Mrs. Johnson agreed that Cathy would live rent-free in exchange for care. Cathy began paying her mother’s expenses from the joint account. Cathy notified each of her siblings of Mrs. Johnson’s status and the arrangements. As Mrs. Johnson’s physical and mental health worsened, she required day care and home health care. Eventually, she became unable to speak or to walk. On May 5, 2003, after several hospitalizations, it became medically necessary to admit Mrs. Johnson into a nursing home. Mrs. Johnson granted Cathy statutory durable power-of-attorney (“POA”) on June 29, 2003. The POA was recorded on June 30, 2003. There is no evidence that Mrs. Johnson was incompetent to execute the POA and no such adjudication took place at that time. Since 2003, Cathy has resided in Mrs. Johnson’s home and has managed her estate—consisting of a home, two small tracts of real estate, and a bank account that solely holds social security funds until they are disbursed for Mrs. Johnson’s needs. Cost of care at the nursing facility is $5,000 per month and has been by private pay. At the time of trial, a $9,000 balance was outstanding. Mrs. Johnson has been ineligible for Medicaid to cover that cost due to her ownership of the two tracts of real estate—one located in Washington County and one in Waller County—totaling approximately $9,000 in value. To pay for nursing care and qualify for Medicaid benefits, Cathy, acting under the POA, transferred the properties into Cathy’s name to facilitate selling them. Michael has been absent throughout much of the events. Michael testified that he lived with his mother for a period of time after losing his job and has visited periodically, but never noticed any decline in her mental faculties. Michael testified that he does not know what his mother’s needs are or what it would cost to provide for them. Further, the evidence shows that Michael was convicted of misdemeanor possession of marijuana approximately five years ago. Michael contends that he can offer his mother the care she needs at home and seeks to remove her from the nursing home. Michael seeks to invalidate Cathy’s POA because, he contends, his mother was incompetent to execute it. Further, Michael contends the tract of land in Waller County belongs to him, and Cathy improperly transferred it into her own name. At trial, Mrs. Johnson appeared through her attorney ad litem and her appearance was waived. All parties agreed that Mrs. Johnson is incapacitated and requires constant care. The trial court took judicial notice of her medical file, a letter from her doctor indicating her incapacitation, and affidavits from six of Mrs. Johnson’s other children stating that they elect appointment of Cathy as Mrs. Johnson’s guardian. The trial court found by clear and convincing evidence that Mrs. Johnson is incapacitated and lacked the necessary capacity to care for herself and to manage her property as a reasonably prudent person, and that appointment of a guardian was in her best interest. Further, the court found Michael disqualified to serve as guardian pursuant to Probate Code section 681, and appointed Cathy as guardian of Mrs. Johnson’s person and estate. Guardianship In his first issue, Michael contends that the trial court erred in denying his application for guardianship and appointing Cathy guardian of Mrs. Johnson’s person and estate. A trial court has broad discretion in selecting a guardian. Trimble v. Tex. Dep’t of Prot. & Regulatory Servs., 981 S.W.2d 211, 214 (Tex. App.—Houston [14th Dist.] 1998, no pet.). We review a trial court’s appointment of a guardian for an abuse of that discretion. Id. A trial court abuses its discretion when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A probate court considers the best interests of the ward and appoints a guardian according to the circumstances. Tex. Prob. Code Ann. § 677(a) (Vernon 2003). If there is not a spouse, as here, the nearest of kin to the ward who is not disqualified is entitled to act as guardian. See id. Under the Probate Code, in pertinent part, a person may not be appointed as guardian if . . . (2) the person’s conduct is notoriously bad; . . . (5) the person is indebted to the proposed ward, unless the person pays the debt before appointment; (6) the person asserts a claim adverse to the proposed ward or the proposed ward’s property, real or personal; (7) because of inexperience, lack of education, or other good reason, the person is incapable of properly and prudently managing and controlling the ward or the ward’s estate; or (8) the person is found unsuitable by the court. Tex. Prob. Code Ann. § 681(2), (5)–(8) (Vernon 2003). There is ample evidence to support the trial court’s disqualification of Michael. The trial court stated that it found Michael unsuitable, pursuant to section 681, because of his prior conviction. Id. § 681(8). In addition, the evidence shows that Michael asserts a claim to the tract of real property in Waller County that is adverse to the ward. Id. § 681(6). Further, the evidence shows that Michael has no comprehension of Mrs. Johnson’s needs or the cost of her care. Id. § 681(7). Conversely, there is no evidence to disqualify Cathy; rather, there is ample evidence to support her appointment. See Hill v. Jones, 773 S.W.2d 55, 57 (Tex. App.—Houston [14th Dist.] 1989, no writ). Unlike Michael, there is no evidence of an adverse claim or that Cathy is unsuitable to serve. See id.; Tex. Prob. Code Ann. § 681(6), (8) (Vernon 2003). Cathy asserts no claim to Mrs. Johnson’s bank account or real property and there is no outstanding money owed to Mrs. Johnson by Cathy. Tex. Prob. Code Ann. § 681(5)–(8). Cathy has made arrangements to sell the properties to pay the nursing home debt, and the evidence shows that the sales proceeds will just cover the debt. The evidence shows that Cathy and her mother had an agreement that Cathy would live rent-free in exchange for care of Mrs. Johnson and her property. Cathy has provided care and has paid Mrs. Johnson’s monthly bills from Mrs. Johnson’s funds. This agreement has continued since Mrs. Johnson went into the nursing home. Cathy continues to oversee the care of her mother, visits her daily, and is listed with the nursing home as the family contact. Mrs. Johnson’s property has been maintained and her expenses have been paid. See Hill, 773 S.W.2d at 57. Hence, Cathy has demonstrated her ability to prudently manage Mrs. Johnson’s person and estate, and the trial court reasonably appointed Cathy as guardian. See id. It was Michael’s burden to establish Cathy’s disqualification under the Probate Code. See id. Because Cathy is related to the proposed ward in the same degree of kinship as Michael, Cathy is entitled to guardianship, subject to disqualification. See id. Michael failed to meet his burden. Hence, Cathy is presumed best qualified to serve. See id. In a sub-issue, Michael argues that Mrs. Johnson was incompetent to sign the POA at the time it was executed. However, Michael presented no evidence on this point. Rather, the testimony showed that Mrs. Johnson was merely incapable of writing her name at the time. Michael presented no evidence of an adjudication that Mrs. Johnson was incompetent or lacked competence to grant the POA. Motion for New Trial In his second issue, Michael contends that the trial court erred in denying his motion for new trial. We review a trial court’s denial of a motion for new trial under an abuse of discretion standard and make every reasonable presumption in favor of the trial court’s refusal to grant the new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983), rev’d on other grounds, 121 S.W.3d 715 (Tex. 2003). To obtain a new trial based on new evidence, a party must show the trial court that (1) the evidence has come to light since trial; (2) it is not due to lack of diligence that it was not presented sooner; (3) the new evidence is not cumulative; and (4) the new evidence is so material that it would probably produce a different result in the case if a new trial were granted. Jackson, 660 S.W.2d at 809. Here, the trial court found that there were no grounds to grant a motion for new trial because Michael produced no new evidence. Michael’s sole statement at the hearing was that he had applied to open a nursing home in his house. The evidence shows that Michael previously presented his plan to provide home health care for Mrs. Johnson at trial. Hence, the trial court reasonably found the evidence presented in Michael’s motion for new trial to be cumulative; thus, it did not qualify as newly-discovered evidence. We conclude that the trial court did not abuse its discretion in refusing to grant the motion for new trial. Michael’s second issue is overruled. CONCLUSION We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Alcala, Higley, and Bland.