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In re Guardianship & Conservatorship of G.T.C.

Supreme Court of South Dakota

September 17, 2014

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF G.T.C. and E.M.C., Minor Children

Considered on Briefs August 25, 2014.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA. THE HONORABLE CHERYLE W. GERING, Judge.

TAMARA D. LEE, Yankton, South Dakota, Attorney for appellants Christine and Daniel Iiams.

WANDA HOWEY-FOX of Harmelink, Fox & Ravnsborg, Yankton, South Dakota, Attorneys for appellees guardians & conservators Larry and Joan Clark.

DANA J. LARSON of Kabeiseman & Pollard Yankton, South Dakota, Attorneys for appellee mother Roxanne Snoozy.

ZINTER, Justice. GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.

OPINION

Page 344

ZINTER, Justice.

[¶1] This case involves a dispute over the payment of reasonable attorney's fees necessarily incurred in the course of a guardianship and conservatorship. The question is whether the fees are to be paid from the estate or by the guardian and conservator personally. We conclude that under the relevant statutory language, such fees are to be paid from the estate.

Facts and Procedural History

[¶2] In 2009, after G.T.C.'s and E.M.C.'s mother was imprisoned, the children went to live with their half-sister, Christine Iiams, her husband Daniel Iiams, and the Iiamses' three children. This was the third time G.T.C. and E.M.C. had lived with the Iiamses because the children's mother could not care for them. The Iiamses did not petition for a guardianship and conservatorship, and they cared for the children until 2013 without court involvement.

[¶3] In 2013, with the release of the mother from prison approaching, the Iiamses petitioned for a guardianship and conservatorship. The court appointed them as temporary guardians and conservators. The Iiamses were not, however, appointed the permanent guardians and conservators. They allowed their temporary guardianship and conservatorship appointment to lapse, and they agreed to the appointment of Larry and Joan Clark.[1] The Iiamses then moved for the attorney's fees that had been incurred while they were the temporary guardians and conservators. The circuit court considered the motion in two memorandum decisions.

[¶4] In the first decision, the court found that the hourly rate charged by the attorney and the time spent on the case were reasonable. However, the court declined to decide who should pay the fees. The court explained " that before [the Iiamses could] take monies from the children's future estate assets, they [had] to make some showing as to what was done with the assets they received on behalf of the children during the time period the formal temporary guardianship and conservatorship was in place." [2] According to the court, that showing was necessary before it could determine whether the fees should be paid from the children's estate or whether the Iiamses should pay the fees personally.

[¶5] The court considered Iiamses' showing and issued its second memorandum decision. The court found that a vehicle retained by the Iiamses was part of the children's estate. The court allowed the Iiamses to keep the vehicle, and the court reduced the attorney's fee request by the vehicle's value ($2,000). The court indicated that it did " not expect [the attorney] to accept the vehicle as payment for her fees, but rather, as the [Iiamses] are being awarded the vehicle, they are expected to be personally responsible for $2,000 in attorneys' fees[.]" The court also found that the Iiamses, while acting as guardians and conservators, had used the children's estate (Social Security benefits) " for the benefit not only of the minor children, but also for the benefit of ...


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