An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
INMAN, Judge.
Appellant Deborah Gates ("Gates") appeals from the Wake County Superior Court's order affirming the Clerk of the Wake County Superior Court's ("the Clerk") orders denying Gates' motion to transfer venue and appointing a guardian of the estate for the incompetent ward, Michael Francis Rieger ("Rieger"). Gates argues that multiple findings in the Clerk's guardianship order are unsupported by competent evidence and that the Clerk did not satisfy the statutory mandate to determine Rieger's assets and liabilities. Gates also argues that the Clerk misapprehended the law in denying her motion to transfer venue. After thorough review of the record and applicable law, we affirm.
The record tends to show the following:
Gates and Rieger have been companions for over forty years. Due to his physical and psychological ailments, on 11 April 2014, Rieger appointed Gates as his durable power of attorney and health care power of attorney, giving her powers to the extent North Carolina law allows. The durable power of attorney became effective immediately.
On 8 June 2017, an acquaintance of Rieger's petitioned in Wake County for him to be adjudicated incompetent. At the time of the petition, Rieger was residing in Wake County at an assisted living facility. That same day, in conjunction with the notice of hearing, the Clerk appointed Angela Lassiter ("Lassiter") as guardian ad litem to represent Rieger in subsequent proceedings. On 18 July 2017, the Clerk adjudicated Rieger incompetent and appointed LifeLinks, LLC ("LifeLinks") as the guardian of the person. Gates did not contest Rieger's adjudication or request to be the guardian of the person, despite Rieger's recommendation, in naming Gates as his healthcare power of attorney, that Gates be one of his guardians of the person. The Clerk did not appoint a guardian of the estate because Gates was essentially performing that role as Rieger's durable power of attorney.
After being appointed as Rieger's guardian, LifeLinks and its representative John Maynor ("Maynor") then attempted to work with Gates to establish the proper round-the-clock healthcare for Rieger. Gates failed to cooperate with LifeLinks. Despite not having the authority, Gates repeatedly sent health care workers away, leaving Rieger without professional assistance, and often remarked that his cost of care was too expensive. Gates said that she would have to sell their home to pay for Rieger's care. Over the next year, three different healthcare companies were put in place at the behest of Gates due to her concern over the cost.
On 27 February 2018, Gates petitioned the Clerk in Wake County to transfer venue to Durham County. Gates argued that, although Rieger resided in Wake County at the time of the petition to find him incompetent, Rieger had otherwise always been a resident of Durham County.
On 12 April 2018, Rieger's sister, Patricia Stull ("Stull"), filed a motion in the cause, pursuant to N.C. Gen. Stat. § 35A-1207(a), in Wake County requesting the appointment of a guardian of the estate. Stull alleged that Gates was not properly performing her role as durable power of attorney due to her lack of oversight of Rieger's finances. Lassiter remained Rieger's guardian ad litem.
On 26 April 2018, a hearing on both the petition to transfer venue and motion to appoint a guardian of the estate was held before the Clerk, with Stull, Maynor, and Lassiter testifying. Gates did not attend the hearing but was represented by counsel who objected to the appointment of a guardian of the estate. As of the date of the hearing, Rieger had been moved from LifeLinks' care to a residential facility in Durham.
On 17 May 2018, the Clerk denied Gates' motion to transfer venue and appointed Leslee R. Sharp as the guardian of Rieger's estate, while keeping LifeLinks on as his guardian of the person.
Gates then appealed the Clerk's orders to the Superior Court. Following a hearing, the Superior Court affirmed both orders on 3 October 2018.
Gates now appeals the Superior Court's decision to this Court.
Section 1-301.3 of our General Statues governs appeals from the clerk of court's decision on matters pertaining to guardianship of an incompetent person. See N.C. Gen. Stat. § 1-301.3(a) (2017) ("This section applies to matters arising in the administration... of estates of... incompetents[.]"); see also In re Winstead, 189 N.C. App. 145, 151, 657 S.E.2d 411, 415 (2008) (holding that Section 1-301.3 applies to appeals from orders appointing a guardian). When the Superior Court sits as an appellate court reviewing decisions by the clerk, its standard of review is limited to determining the following:
N.C. Gen. Stat. § 1-301.3(d) (2017); see also In re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599, 601 (2007) (suggesting that competent evidence must support the clerk of court's findings). The superior court's appellate jurisdiction "is derivative and appeals present for review only errors of law committed by the clerk. In exercising the power of review, the judge is confined to the correction of errors of law. The hearing is on the record rather than de novo." In re Flowers, 140 N.C. App. 225, 227, 536 S.E.2d 324, 325 (2000) (quoting In re Simmons, 266 N.C. 702, 707, 147 S.E.2d 231, 234 (1966)). Our standard of review mirrors that of the superior court. In re Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2-3 (1995) (citing In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436 (1985)).
In matters covered by Section 1-301.3, the clerk must determine all issues of fact and law and "enter an order or judgment, as appropriate, containing findings of fact and conclusions of law supporting the order or judgment." N.C. Gen. Stat. § 1-301.3(b) (2017) (emphasis added). Here, the Clerk's order appointing the guardian of the estate contains the following pertinent findings of fact:
Gates first argues that findings of fact 16, 17, 20, 22, 30, and 31 are supported only by her inadmissible hearsay statements. We disagree.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2017). One exception to the rule prohibiting hearsay as evidence is when such statements are made by a party-opponent, i.e., statements offered against the opposing party who made them in their individual or representative capacity. Id. § 8C-1, Rule 801(d)(A). Here, Stull's motion in the cause specifically requested the appointment of a guardian of the estate, alleging Gates was derelict in her duty as Rieger's power of attorney. Gates then intervened in the guardianship proceedings and attempted to frustrate the potential appointment. Gates is therefore considered a party-opponent—as she was an adverse party to Stull's motion—and her statements produced against her were admissible under Rule 801(d)(A)'s hearsay exception. Cf. In re J.M., __ N.C. App. __, __, 804 S.E.2d 830, 834 (2017) (holding that testimony regarding a parent's out-of-court statements are valid because parents are adverse parties in termination of parental rights proceedings).
At the hearing, Maynor testified that Gates had made the following statements to him: she was fearful of the cost of Rieger's constant and ongoing healthcare needs; she would have to sell their home to pay for Rieger's care; and that overnight care was unnecessary. Maynor also testified that Gates told him she switched to a new healthcare provider in Well Care because it was less expensive. This testimony was admissible and supports the Clerk's challenged findings.
Gates further contends that findings 14, 28, and 32 are unsupported by the evidence. Findings 14 and 28 rely on testimony relaying other witnesses' statements to them that multiple collection attempts were made before Gates paid for Rieger's healthcare and that Gates gave Rieger an expired medication in lieu of paying for a new prescription. Finding 32 states that Gates delinquently paid Rieger's 2017 property taxes. Assuming these findings were made in error, they do not render the Clerk's order invalid because the Clerk's conclusions were supported by other findings that were supported by competent evidence. See Pate, 119 N.C. App. at 403, 459 S.E.2d at 2 ("[E]ven though the Clerk may have made an erroneous finding which is not supported by the evidence, the Clerk's order will not be disturbed if the legal conclusions upon which it is based are supported by other proper findings.").
Subchapter I of Chapter 35A of our General Statutes governs the adjudication of incompetent individuals, N.C. Gen. Stat. §§ 35A-1101 et seq., while Subchapter II controls the procedures for appointing their guardians. Id. §§ 35A-1201 et seq. To adjudicate someone incompetent, the clerk of court must find by "clear, cogent, and convincing evidence that the respondent is incompetent." Id. § 35A-1112(d). Once the ward is found incompetent, "a guardian or guardians shall be appointed in the manner" dictated by Subchapter II. Id. § 35A-1120; accord id. § 35A-1112(e) ("Following an adjudication of incompetence, the clerk shall [] appoint a guardian pursuant to Subchapter II[.]").
Unlike the evidentiary burden for adjudicating incompetency, Subchapter II provides that, to appoint a guardian, the clerk need only hold a hearing and "make such inquiry and receive such evidence as the clerk deems necessary" to determine:
Id. § 35A-1212(a). If the clerk, in its discretion, decides that a guardian should be appointed, Subchapter II provides who may be considered a guardian and what powers and duties those guardians possess. Id. §§ 35A-1213, -1214, -1251 & -1252.
Gates argues that the Clerk did not sufficiently inquire into and make findings regarding Rieger's assets and liabilities. Gates' argument suggests that such findings were a prerequisite to appointing a guardian of his estate. We disagree.
Unlike the evidentiary burden provided by Section 35A-1112(d) to adjudicate a person incompetent, Section 35A-1212(a) provides no similar evidentiary standard that we can review to determine whether the Clerk erred in appointing a guardian. Subchapter II only obligates the clerk to hold a hearing and inquire into and receive evidence of a ward's overall health and circumstances until the clerk is comfortable deciding whether a guardian of the estate is warranted. Id. § 35A-1212(a). It would be unduly burdensome to delve into the minutiae of a ward's finances before appointing a guardian of the estate because (1) that is the duty of a guardian of the estate, id. §§ 35A-1251, -1253, -1261; and (2) before appointing a guardian, the clerk would have already determined through clear, cogent, and convincing evidence that the ward cannot make his own independent decisions. See id. § 35A-1101(7) (defining an incompetent adult). If the General Assembly intended to require a more thorough determination by the clerk following the adjudication of incompetence, it would have prescribed it in the statute.
Here, a year prior to the Court's appointment of the guardian of his estate, Rieger was adjudicated incompetent and a guardian of the person was appointed to oversee his healthcare needs. Gates did not contest these decisions. Upon Stull's request to appoint a guardian of the estate, the Clerk held a hearing and heard testimony surrounding Rieger's finances. Gates does not contest the finding that Rieger "requires assistance with everything," as he suffers from Parkinson's disease and dementia. Maynor and Stull both testified that they were unaware of the extent of Rieger's financial health. The Clerk also questioned each witness about Rieger's assets and liabilities.
As mentioned above, Gates further challenges findings of fact 14, 28, and 32. But none of these findings is relevant to the Clerk's duties under Section 35A-1212, so we do not address them. Gates does not argue how the absence of these findings, assuming they are unsupported by sufficient evidence, would render the Clerk's guardianship order invalid. In its order, the Clerk found that the amount of assets in Rieger's estate was unclear, that the amount of assets needed to sustain his recommended level of care was unclear, and that the Clerk was concerned over the management of his estate.
We hold that the Clerk performed its statutory duty under Section 35A-1212 in inquiring into Rieger's assets and liabilities before appointing a guardian of Rieger's estate.
Gates also contends that the Clerk erred in denying the motion to transfer venue from Wake County to Durham County. We hold that any error was not prejudicial to the outcome. Gates does not take issue with any of the Clerk's findings of fact or demonstrate that, but for the alleged error, her motion to transfer venue would have been allowed.
Venue to adjudicate someone incompetent is "in the county in which the respondent resides or is domiciled or is an inpatient in a treatment facility." N.C. Gen. Stat. § 35A-1103(b) (2017). The clerk, upon motion by a party or on its own motion, "may order a change of venue upon finding that no hardship or prejudice to the respondent will result from a change of venue." Id. § 35A-1104 (emphasis added).
Once adjudicated, venue for the appointment of a guardian for an incompetent person is in the same county where the ward was adjudicated incompetent. Id. § 35A-1204(a). Any time before or after a guardian is appointed, "the clerk may, on a motion filed in the cause or on the court's own motion, for good cause order that the matter be transferred to a different county." Id. § 35A-1205 (emphasis added).
Gates does not argue that the hearing finding Rieger incompetent and appointing a guardian of the person should have proceeded in a venue different from Wake County. It is undisputed that at the time of the petition to have him adjudicated incompetent, Rieger was residing in a healthcare facility in Raleigh.
Gates does contend, however, that the Clerk applied the wrong statute in ruling that venue should not be transferred to Durham County a year later. The Clerk cited Section 35A-1104 in concluding that transfer to "Durham County would be prejudicial" toward Rieger. Because the proceeding before the Clerk solely involved appointing a guardian of the estate rather than adjudicating Rieger incompetent, the Clerk erroneously applied the "prejudice or hardship" standard. The Clerk should have reviewed the motion to transfer under the "good cause" standard in Section 35A-1205.
While the Clerk may have misapprehended Chapter 35A's venue statutes, we nevertheless affirm its judgment. "[W]here a court's ruling [is] based upon a misapprehension of law, [but] the misapprehension of the law does not affect the result[,]... the judgment will not be reversed." Ball v. Maynard, 184 N.C. App. 99, 105, 645 S.E.2d 890, 895 (2007) (citations and quotations omitted) (alterations in original).
The Clerk did not find that Gates' trial counsel produced evidence tending to show any reason to transfer Rieger's proceedings to Durham County. The Clerk found that a change in venue would deprive LifeLinks from being his guardian of the person because it "does not have a contract with Durham County." As a result, Durham County Social Services would need to be appointed, yet Gates' counsel failed to notify the county of such potential circumstances. These findings expressly overruled counsel's argument at the hearing that a transfer would not strip Rieger of the care he needed from LifeLinks.
The only other argument put forth by counsel was that, but for the matters being in Wake County, Rieger would be able to attend, and possibly participate, in future proceedings. However, counsel only speculated that Rieger would want to attend the proceedings and admitted that Rieger never indicated his intent to participate and that it was difficult to determine whether he was lucid and could perceive his surroundings. Counsel further admitted that no alternative attempts were made to have Rieger attend the proceedings. Additionally, any needed participation would seem to defeat the purpose of Lassiter as guardian ad litem, and no evidence was presented as to the necessity of Rieger's attendance at any hearings going forward. See N.C. Gen. Stat. § 35A-1107(b) (2017) ("The guardian ad litem shall present to the clerk the respondent's express wishes at all relevant stages of the proceedings.").
In sum, although the Clerk did rely on the improper statute in denying Gates' motion to transfer venue, we hold that the misapprehension of law did not affect the result because the trial court found no facts showing good cause to transfer Rieger's proceedings to Durham County.
We affirm the Superior Court's order affirming the Clerk's orders appointing a guardian of Rieger's estate and denying Gates' motion to transfer venue.
AFFIRMED.
Judges DIETZ and BROOK concur.
Report per Rule 30(e).
