Conservatorship of JS, KS, & RS

Conservatorship of JS, KS, & RS, 2015 MT 335 (Dec. 3, 2015) (Cotter, J.; McKinnon, J., dissenting) (4-1, aff’d)

Issue: Whether the district court abused its discretion in appointing a GAL to determine whether litigation of the minor children’s claims against their father and their father’s business from a car accident that kicked their mother is in the children’s best interests.

Short Answer: No.

Affirmed

Facts: Jennifer Soule was killed in 2012 when she and Michael were driving on the interstate, their car rolled, and both were ejected. Michael was charged with vehicular homicide while under the influence, but does not remember who was driving. The charges were eventually dropped due to police misconduct, loss or destruction of evidence, and violations of Michael’s constitutional rights.

The Soules’ car was insured by Safeco, which offered the $300,000 policy limits to be split equally among the three Soule children. Jennifer’s father, Tom Reiner, petitioned for approval of the settlement and appointment as conservator, and the court appointed him conservator for the limited purpose of approval and oversight of the Safeco settlement funds.

In January 2014, the court appointed attorney Benjamin Alke to represent the minor children with respect to the proposed Safeco settlement. Mr. Alke realized the children may have additional claims against their father and his business, Belgrade Liquor, which has a commercial general liability policy with a limit of $1 million.  Mr. Alke petitioned the court to appoint a guardian ad litem to determine whether litigation is in the children’s best interests as well as counsel to pursue those claims on the children’s behalf.

Michael did not oppose the GAL appointment until the day after the deadline to object, when the district court dismissed the criminal charge pending against him. Michael contends the family is financially secure and pursuing further insurance coverage would result in allegations against him, his wife, and his business, which would be traumatic for the children.

In March 2015, one of the Soule children attempted suicide.

Procedural Posture & Holding: The district court called a hearing on Mr. Alke’s petition, after which the court appointed retired Judge Dorothy McCarter as GAL under § 25-5-301, MCA, and appointed Mr. Alke as counsel to pursue any legal claims. Michael appeals, and the Court affirms.

Reasoning: The Court analyzes the question of whether the district court abused its discretion in three parts. It first finds that the appointment for the purposes of considering and possibly pursuing litigation was not an abuse of discretion. It interprets § 41-1-202, MCA, as authorizing a minor to commence legal proceedings, but only through a GAL. § 25-5-301, MCA.

It next holds that authorizing the GAL to undertake certain duties was not an abuse of discretion. Although § 25-5-301 does not specify the duties a GAL should undertake, the Court looks at § 40-4-205, which authorizes a GAL to conduct investigations, interview or observe the child, appear and participate in all proceedings, and perform other duties as directed by the court.

Finally, the Court holds that the appointment was in the children’s best interests. Michael’s interests vis-à-vis possible legal claims against him are adverse to his children’s interests, which does not mean he’s not a competent, caring father. Whether litigation should proceed against Michael’s wishes is a question to be considered by the GAL in making her recommendations.

Justice McKinnon’s Dissent: The district court abused its discretion because the statutory requirements for appointing a GAL were not followed. “Absent statutory authority allowing a court to interfere, there is no justification for appointment of a guardian ad litem to usurp a father’s decisions regarding what is in his children’s best interests.” ¶ 25. No statute allows the court to appoint a GAL for the purpose of investigating claims against a fit parent.