In Re Conservatorship of Chisholm

WECHSLER, Judge

(Dissenting).

{27} I concur with the majority concerning the district court’s power to appoint a conservator. However, I believe that NMSA 1978, § 45-5-407(1) (1998) also has effect for the protection of minors when applicable. As a result, I respectfully dissent from the majority’s conclusion that the New Mexico Uniform Probate Code does not require the district court to find by clear and convincing evidence that the conservatorship is the least restrictive form of intervention.

Statutory Format

{28} In my analysis, I differ with the majority when examining the statutory structure of the Uniform Probate Code to determine legislative intent. See Meridian Oil, Inc. v. New Mexico Taxation & Revenue Dep’t, 1996-NMCA-079, ¶ 12, 122 N.M. 131, 921 P.2d 327 (“ ‘The starting point in statutory construction is to read and examine the text of the act and draw inferences concerning the meaning from its composition and structure.’ ” (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 47.01, at 136 (5th ed.1992))) (footnote omitted). As the majority points out, Section 45-5-407(A) is the only subsection of Section 45-5-407 that, by its terms, concerns itself only with a conservatorship for a minor. While other subsections do not have effect for a minor’s estate, several subsections are applicable regardless of whether the estate is of a minor or another person to be protected. Nothing in Section 45-5-407 specifically indicates that its subsections do not apply to a petition involving a minor. Moreover, the format of Section 45-5-407 with seventeen apparently equal subsections suggests that the legislature did not intend to divide these subsections so that Subsection A was the only subsection that applied to a petition because of minority. Cf. Meridian Oil, Inc., 1996-NMCA-079, ¶ 14, 122 N.M. 131, 921 P.2d 327 (reasoning that had the legislature intended one subsection to be an exception to another, it would have been “a simple matter ... to insert conditional language”).

{29} In contrast, NMSA 1978, § 45-5-401 (1993) has two clearly divided subsections separating the provisions applying to minors and adults. Section 45-5-401 typifies the legislative format which divides subject matter into alternative subsections as Desert States contends. The legislature did not so divide Section 45-5-407. If the legislature had intended separate requirements for petitions based upon minority, it would have been a straightforward matter for it to have written the statute in that manner. See Meridian Oil, Inc., 1996-NMCA-079, ¶ 14, 122 N.M. 131, 921 P.2d 327. As the format and some subsections of Section 45-5-407 are of general applicability, I would conclude that the legislature intended that each subsection apply to a petition for appointment of a conservator based on minority as well as reasons other than minority depending upon the specific applicability of each subsection.

Required Findings of Fact

{30} I believe that the conclusion that Section 45-5-407(1) applies in this case becomes clear when I read Subsection A of Section 45-5-401 in conjunction with Subsections H and I of Section 45-5-407. Section 45-5-401 requires the court to make determinations. In order for a court to make determinations, it must necessarily make findings of fact and rely upon those findings to make its determinations. See Gersbach v. Warren, 1998-NMSC-013, ¶ 27, 125 N.M. 269, 960 P.2d 811 (district court makes “determinations” based upon “findings”). The first two determinations are applicable to this case. John Chisholm owns property that requires management or protection, and he may have financial affairs. Such a determination, however, is not sufficient for the appointment of a conservator. The court must also find that the management or protection of John’s property “cannot otherwise be provided,” or that his financial affairs “may be jeopardized or prevented by his minority.” Section 45-5-401(A)(l), (2). Respondent Father specifically disputes that such findings are proper. He asserts that the John Chisholm Trust provides the necessary management or protection of John’s property and enables John’s financial affairs to be carried out. Without a finding to the contrary, his position in the litigation is prejudiced.

{31} Subsections H and I of Section 45-5-407 relate to the court’s action upon a petition. Under Subsection H, if the court determines that the person to be protected has the capacity to manage his or her estate or financial affairs, or both, the court shall dismiss the petition. I agree with the majority that this subsection does not apply when the person to be protected is a minor because a minor is considered under legal disability. However, Subsection I permits the court to appoint a full or limited conservator after making a finding in the record based on clear and convincing evidence. I cannot agree with the majority that Section 45-5-407(1) does not have general applicability because it uses the word “Alternatively” and because it follows Subsection H. Subsection I uses the word “Alternatively” only because it sets forth the alternatives to dismissal.

{32} The findings required cover five specific areas. The first area is that the person is either totally incapacitated or incapacitated only in specific areas. A finding of minority suffices to address this requirement. The next three areas subject to a finding address the appointment of a conservator as the appropriate remedy as opposed to another method of managing the estate or financial affairs of the person to be protected. This issue is specifically the one which Father raises in this case. The last of the five areas to be found by the court involves whether “the proposed conservator is both qualified and suitable and is willing to serve.” Section 45-5-407(I)(5). The Uniform Probate Code does not otherwise contain this requirement. I believe that the legislature intended the district court to make these findings with regard to all appointed conservators. Indeed, it does not make sense that the district court would be required to find that only conservators for persons to be protected other than minors be found to be qualified, suitable, and willing to serve.

{33} Under the structure of Article 5 of the Uniform Probate Code, Section 45-5-401 sets forth the required elements for the appointment of a conservator, and Section 45-5-407 describes the procedure for the district court to follow. Reading the two sections together, given the format of Section 45-5-407, I would conclude that Section 45-5-407(1) applies to the court’s determinations under Section 45-5-401(A). See Citizens for Incorporation, Inc. v. Board of County Comm’rs, 115 N.M. 710, 717, 858 P.2d 86, 93 (Ct.App.1993). Otherwise, none of the procedural requirements of Section 45-5-407 attendant to a hearing would pertain to a conservatorship petition with regard to a minor. I do not believe that the legislature intended to provide lesser procedural protections to minors than to other persons to be protected. Cf. Meridian Oil, Inc., 1996-NMCA-079, ¶ 14, 122 N.M. 131, 921 P.2d 327 (reasoning that lack of conditional language meant that legislature did not intend one subsection to be an exception for another). As a result, I further conclude that the legislature intended that Section 45-5-407(1) apply to a petition for appointment of a conservator because of minority. With this conclusion, the district court had the obligation to make findings based on clear and convincing evidence as set forth in Section 45-5-407(1).

Need for Evidentiary Hearing

{34} Some of the confusion in this case may have arisen from the fact that the March 13, 1997 hearing which resulted in the order regarding conservatorship was on Desert States Life Management’s motion to review conservatorship and accounting, not on the petition for appointment of a conservator. It was not an evidentiary hearing. Because the order resulted from the motion hearing, Desert States Life Management argues that findings of fact and conclusions of law are not required. See Rule 1 — 052(B)(1 )(a) NMRA 1998 (findings of fact and conclusions of law are generally unnecessary in decisions on motions). The fault in this argument is that if the district court only ruled upon the motion at the March 13, 1997 hearing, it never held a hearing on the petition as required under Section 45-5-401 and Section 45-5-407(A).

{35} I believe that the district court made just that error. Although the subject matter may have been the same or overlapped, the substance of the petition never came before the district court for an evidentiary hearing to enable the court to enter findings and conclusions concerning the content of the petition. The petition was not verified, and no sworn witness ever testified. The petitioner has the burden of establishing an entitlement to the relief sought on the record. Cf. In re Sanders, 108 N.M. 434, 436-38, 773 P.2d 1241, 1243-45 (Ct.App.1989) (burden of proof is on petitioner in a guardianship proceeding). The questions posed by Sections 45-5-401(A) and 45-5-407(A) concerning the appropriateness of a conservator-ship raise issues about Father’s creation of the John Chisholm Trust and whether the district court could set aside the trust. Without an evidentiary hearing, the district court was unable to make the required statutory determinations. See §§ 45-5-40KA), - 407(1).

{36} Desert States Life Management argues alternatively that if the district court needed to make findings, the court’s oral statement at the December 20, 1996 hearing that “it is inconceivable to me that a young man with that kind of money would not have a conservatorship to manage the money” is sufficient to fulfill the district court’s obligation. I do not agree. First, the district court made its oral finding at the December 20, 1996 hearing. After that time, Father submitted to the court documents and affidavits concerning his position. The December 20, 1996 finding could not have addressed Father’s submissions. Second, Sections 45-5-401 (A) and 45-5-407(1) require findings in addition to a minor having possession of substantial property. The court did not make such findings on December 20, 1996.

{37} I therefore would reverse the order regarding conservatorship and remand to the district court to conduct an evidentiary hearing as required by the Uniform Probate Code and enter findings of fact and conclusions of law.