In Re DONALD M.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term

______________ FILED
May 8, 2014
No. 13-0653 released at 3:00 p.m.
RORY L. PERRY II, CLERK

______________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

IN RE: DONALD M.

_________________________________________________________

Appeal from the Circuit Court of Mineral County

The Honorable Phil B. Jordan, Jr., Judge

Civil Action No. 12-G-5

REVERSED AND REMANDED

_________________________________________________________

Submitted: April 8, 2014

Filed: May 8, 2014

Timothy M. Sirk, Esq. Nicholas T. James, Esq.

Keyser, West Virginia Keyser, West Virginia

Counsel for the Petitioner E.D. Guardian ad litem for Donald M.

JUSTICE KETCHUM delivered the Opinion of the Court.

 SYLLABUS BY THE COURT

1. “A statute should be so read and applied as to make it accord with

the spirit, purposes and objects of the general system of law of which it is intended to

form a part; it being presumed that the legislators who drafted and passed it were familiar

with all existing law, applicable to the subject matter, whether constitutional, statutory or

common, and intended the statute to harmonize completely with the same and aid in the

effectuation of the general purpose and design thereof, if its terms are consistent

therewith.” Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

2. “Statutes which relate to the same persons or things, or to the same

class of persons or things, or statutes which have a common purpose will be regarded in

pari materia to assure recognition and implementation of the legislative intent.

Accordingly, a court should not limit its consideration to any single part, provision,

section, sentence, phrase or word, but rather review the act or statute in its entirety to

ascertain legislative intent properly.” Syllabus Point 5, Fruehauf Corp. v. Huntington

Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975).

3. Under W.Va. Code § 44A-2-1(a) [2009] of the Guardianship and

Conservatorship Act, jurisdiction lies in the circuit court of either the county in which the

protected person resides, or the county in which the protected person has been admitted

to a health care or correctional facility.

4. A conservator appointed under the Guardianship and

Conservatorship Act is responsible for managing the “estate” of the protected person.

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Under W.Va. Code § 44A-1-4 [2000], the “estate” includes any interest in real property

held by the protected person, even if that real property is located in another State.

5. Under W.Va. Code § 44A-3-5 [2008] of the Guardianship and

Conservatorship Act, when a conservator seeks to sell or mortgage an interest in real

property owned by a protected person, if the circuit court has jurisdiction of the protected

person, then the circuit court has jurisdiction to approve the sale or mortgage of the real

estate interest – even if the real estate is located outside the State of West Virginia.

6. “This Court reviews the circuit court’s final order and ultimate

disposition under an abuse of discretion standard. We review challenges to findings of

fact under a clearly erroneous standard; conclusions of law are reviewed de novo.”

Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

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Justice Ketchum:

In this appeal from the Circuit Court of Mineral County we are asked to

examine the power of a conservator for a protected person under the West Virginia

Guardianship and Conservatorship Act. Specifically, we are asked whether a circuit

court has jurisdiction to approve the sale by a conservator of real estate, owned by a

protected person who is a West Virginia citizen, which is located outside of West

Virginia. In this case, the circuit court refused to give the conservator permission to sell a

protected person’s real property that is located in Maryland.

As we detail below, we find that a circuit court does have jurisdiction to

approve the sale of an interest in real property owned by a protected person, regardless of

where the property may be located. Furthermore, we find that the circuit court in this

case abused its discretion in denying the conservator permission to sell the protected

person’s real property. Accordingly, we reverse the circuit court’s refusal to grant

permission to sell the real property and remand the case for further proceedings.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent Donald M., who is seventy-nine years old and suffers from

dementia, is unable to care for himself. On April 25, 2012, his daughter (petitioner

E.D.1) filed a petition requesting that she be appointed as both guardian and conservator

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E.D is one of respondent’s four children and—according to the guardian
ad litem—is the only child available to care for her elderly father.

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for her father. Donald M. lives in his home in Mineral County, West Virginia. E.D. lives

in Winchester, Virginia, seventy-five miles away (about a ninety-minute drive) from her

father’s residence. The circuit court appointed a guardian ad litem who, upon finding that

Donald M. was not competent, recommended that E.D. be named as her father’s guardian

and conservator. The court concurred and made the appointment.

On January 16, 2013, acting as Donald M.’s conservator, E.D. filed a

motion with the circuit court seeking permission to sell two parcels of Donald M.’s real

property: his home in Mineral County, West Virginia, and an undeveloped parcel of land

in Allegany County, Maryland. E.D. intended to use the proceeds of the sales either to

rent a home for Donald M. near her home in Winchester, Virginia, or, if necessary, to

place her father in an assisted living facility in Winchester.

A hearing on the motion to sell the two parcels was held before a mental

hygiene commissioner on April 29, 2013. The guardian ad litem told the mental hygiene

commissioner that Donald M. (1) was unable to make his own meals even though Donald

M. claimed he could; (2) had fallen four times in the last year; (3) sometimes forgets to

take his medication; and (4) has a caretaker only two hours a day, six days a week. E.D.

drives the 150-mile roundtrip to care for her father on the seventh day. The guardian ad

litem concluded that, in the near future, Donald M. would need more care than he is

currently receiving and that the additional care could best be provided by his daughter in

Virginia. The guardian ad litem recommended that Donald M.’s West Virginia home be

put up for sale immediately given that it might take significant time to sell in a down real

estate market. The guardian ad litem also said, in part because Donald M. had agreed,

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that the Maryland property should also be sold. However, the mental hygiene

commissioner filed a report recommending that the circuit court deny the sales.

In an order dated May 6, 2013, the circuit court adopted the findings and

recommendations of the mental hygiene commissioner and denied E.D.’s motion to sell

her father’s two properties. Although it believed that the Maryland property “should be

sold,” the circuit court found that it was “without jurisdiction over the real estate” and,

therefore, could not order its sale. The circuit court adopted the commissioner’s

recommendation that a guardianship/conservatorship proceeding be brought in Maryland

“in a court with proper jurisdiction [to order] such sale.”

As for Donald M.’s residence in West Virginia, the circuit court ruled it

was not in Donald M.’s best interest for the property to be sold “at this time.” The court

concluded that E.D. (1) had not proven a need to sell the residence; (2) had failed to

consider Donald M.’s express desire not to sell the residence; and (3) failed to present

evidence showing how a move to Virginia would save money or benefit Donald M.’s

health given that his needs are being met at the present time.

E.D. now appeals the circuit court’s May 6, 2013, order.

II.

ANALYSIS

E.D. asserts that the circuit court erred in two ways. First, she contends that

the circuit court erred in its interpretation of the West Virginia Guardianship and

Conservatorship Act (“the Act”), W.Va. Code §§ 44A-1-1 to 44A-5-9. Specifically, she

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argues the circuit court was wrong in concluding that it had no jurisdiction to approve the

sale of Donald M.’s Maryland property, and that only a Maryland court had jurisdiction

to allow the sale. Second, E.D. argues that the circuit court abused its discretion when it

precluded E.D.’s sale of Donald M.’s West Virginia residence, simply because Donald

M. said he did not wish to sell the property. We consider these two arguments in turn.

A. Jurisdiction to approve the sale of out-of-state property

As we have often said, “Where the issue on an appeal from the circuit court

is clearly a question of law or involving an interpretation of a statute, we apply a de novo

standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459

S.E.2d 415 (1995). Accord Syllabus Point 1, Appalachian Power Co. v. State Tax Dep’t

of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an

administrative rule or regulation presents a purely legal question subject to de novo

review.”). Accordingly, we give the circuit court’s ruling that it had no jurisdiction to

approve the sale of the Maryland property plenary review.

E.D. was appointed as both guardian and conservator of her father, Donald

M., under the Guardianship and Conservatorship Act. As a “guardian,” she was “a

person appointed by the court who is responsible for the personal affairs of a protected

person[.]” W.Va. Code § 44A-1-4(5) [2000]. As a “conservator,” she was “responsible

for managing the estate and financial affairs” of her father. W.Va. Code § 44A-1-4(1).

The instant case centers on E.D.’s powers as a conservator over Donald M.’s “estate,”

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which involves his “real and personal property or any interest in the property and means

anything that may be the subject of ownership.” W.Va. Code § 44A-1-4(4).

The Act permits a person appointed as a conservator to perform certain acts

on behalf of a protected person “without the necessity of seeking prior court

authorization[.]” W.Va. Code § 44A-3-3 [2012]. These acts include using the “income

and principal of the estate as needed for the protected person’s support, care, health, and

if applicable, habilitation, education or therapeutic needs.” Id. A conservator may also,

without prior court approval, do such things as prudently invest and reinvest estate funds,

sell personal property, repair personal or real property, vote stock, or abandon property

that is valueless and of “no benefit to the estate[.]” W.Va. Code § 44A-3-4(a) [2000].

The Act gives special treatment to real estate. First, the Act only authorizes

a conservator, “without prior court authorization,” “[t]o collect, hold, and retain assets of

the estate, including land in another state, and to receive additions to the estate[.]”

W.Va. Code § 44A-3-4(a)(2) (emphasis added). Second, if a conservator wishes to sell

any real estate within a protected person’s estate, then the conservator must seek the

approval of the circuit court. W.Va. Code § 44A-3-5 [2008] states as follows:

(a) A conservator shall not sell real estate and shall not
be authorized to mortgage any real estate without approval of
the court.

(b) Following a petition by the conservator for the sale
or mortgage of real property, the court or mental hygiene
commissioner shall appoint a guardian ad litem and set a
hearing on the petition. The conservator shall personally
serve the protected person and serve by certified mail all
persons entitled to notice pursuant to the original petition at
least thirty days prior to the hearing.

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 The circuit court – relying upon the recommendation of the mental hygiene

commissioner – concluded that it did not have jurisdiction to approve the sale of the

Maryland real estate under W.Va. Code § 44A-3-5. We reject this interpretation of the

Act.

The Act states that jurisdiction for the appointment of a conservator must

be filed “in the county in which the alleged protected person resides or, if an alleged

protected person has been admitted to a health care or correctional facility, in the county

in which that facility is located.” W.Va. Code § 44A-2-1(a) [2009]. A conservator “is

responsible for managing the estate . . . of a protected person,” and the estate includes any

real property, or any interest in property, W.Va. Code § 44A-1-4(1), (4), even if that real

property interest is “in another state.” W.Va. Code § 44A-3-4(a)(2). We read these

statutes together and perceive that the Legislature intended for the powers of a

conservator to manage or sell real property to extend to all such property interests owned

by a protected person, whether in this State or another.

In assessing the Act, in general, and specifically W.Va. Code § 44A-3-5, we

keep in mind that “[t]he primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s

Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). “A statutory provision which is

clear and unambiguous and plainly expresses the legislative intent will not be interpreted

by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly,

135 W.Va. 877, 65 S.E.2d 488 (1951).

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 “Our rules of statutory construction require us to give meaning to all

provisions in a statutory scheme, if at all possible.” Community Antenna Serv., Inc. v.

Charter Communications VI, LLC, 227 W.Va. 595, 604, 712 S.E.2d 504, 513 (2011).

“Statutes which relate to the same subject matter should be read and applied together so

that the Legislature’s intention can be gathered from the whole of the enactments.”

Syllabus Point 3, Smith v. State Workmen’s Compensation Comm’r, 159 W.Va. 108, 219

S.E.2d 361 (1975). “It is always presumed that the legislature will not enact a

meaningless or useless statute.” Syllabus Point 4, State ex rel. Hardesty v. Aracoma–

Chief Logan No. 4523, Veterans of Foreign Wars, 147 W.Va. 645, 129 S.E.2d 921

(1963).

Furthermore, statutes are not to be construed in a vacuum, but must be read

in the context of the general system of law of which the Legislature intended it to be a

part:

A statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it being
presumed that the legislators who drafted and passed it were
familiar with all existing law, applicable to the subject matter,
whether constitutional, statutory or common, and intended the
statute to harmonize completely with the same and aid in the
effectuation of the general purpose and design thereof, if its
terms are consistent therewith.

Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908). In other words,

statutes must be read in pari materia to ensure that legislative intent is being effected.

“Statutes which relate to the same persons or things, or to the same class of persons or

things, or statutes which have a common purpose will be regarded in pari materia to

7

assure recognition and implementation of the legislative intent. Accordingly, a court

should not limit its consideration to any single part, provision, section, sentence, phrase

or word, but rather review the act or statute in its entirety to ascertain legislative intent

properly.” Syllabus Point 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159

W.Va. 14, 217 S.E.2d 907 (1975). See also, Syllabus Point 3, State ex rel. Graney v.

Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958) (“Statutes in pari materia must be construed

together and the legislative intention, as gathered from the whole of the enactments, must

be given effect.”).

Under the Act, W.Va. Code § 44A-2-1(a), jurisdiction lies in the circuit

court of either the county in which the protected person resides, or the county in which

the protected person has been admitted to a health care or correctional facility. A

conservator appointed under the Act is responsible for managing the “estate” of the

protected person. Under W.Va. Code § 44A-1-4, the “estate” includes any interest in real

property held by the protected person, even if that real property is located in another

State. Hence, we hold that under W.Va. Code § 44A-3-5, when a conservator seeks to

sell or mortgage an interest in real property owned by a protected person, if the circuit

court has jurisdiction of the protected person, then the circuit court has jurisdiction to

approve the sale or mortgage of the real estate interest – even if the real estate is located

outside the State of West Virginia.

Accordingly, we find that the circuit court erred in finding it had no

jurisdiction to approve E.D.’s sale of Donald M.’s real property in Maryland under W.Va.

Code § 44A-3-5.

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 b. Approval to sell Donald M.’s West Virginia property

Both E.D. and Donald M.’s guardian ad litem assert the circuit court erred

in its conclusion that E.D. could not sell her father’s West Virginia property because

there was no evidence it was in Donald M.’s best interests. “This Court reviews the

circuit court’s final order and ultimate disposition under an abuse of discretion standard.

We review challenges to findings of fact under a clearly erroneous standard; conclusions

of law are reviewed de novo.” Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178,

469 S.E.2d 114 (1996).

Both E.D. and the guardian ad litem contend that it is not in Donald M.’s

best interest to continue to reside alone in his home. The circuit court has previously

found that Donald M. was not competent enough to care for himself when it appointed

E.D. as his guardian and conservator. The record shows that Donald M. is alone twenty-

two hours a day, and cannot bathe himself, prepare meals, or drive. He has fallen

numerous times, and he forgets to take his medication. E.D. states that she respects her

father’s wish to stay in his home, but as his guardian she has determined it is not in his

best interests. As his conservator, she has determined it is not in his best interests to keep

his residence.

On this record, we find that the circuit court clearly abused its discretion.

As his guardian, E.D. established a need to move her father seventy-five miles to be

closer to her residence in Winchester, Virginia, so that she could provide him with care.

E.D. demonstrated that Donald M. will be provided with both freedom and continuous

care near her home. Once E.D. moves Donald M., there would be no need to maintain

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the West Virginia property. The record establishes that, as Donald M.’s conservator,

E.D. has exercised “reasonable care, diligence and prudence,” and that she is “act[ing] in

the protected person’s best interests” in selling the properties. W.Va. Code § 44A-3-3(c).

Accordingly, we must reverse the circuit court’s decision preventing the

sale of the West Virginia property.

IV.

CONCLUSION

The circuit court erred in finding it was without jurisdiction to approve the

sale of Donald M.’s Maryland property, and finding it was not in his best interest to sell

the West Virginia property. Accordingly, the circuit court’s May 6, 2013, order is

reversed and the case is remanded to the circuit court for entry of an order properly

approving the sale of both properties.

Reversed and Remanded.

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