IN THE MATTER OF THE CONSERVATORSHIP OF J.J.W., An Incapacitated Person.
Submitted on Briefs: November 16, 2016
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DG 15-0027
Honorable Gregory R. Todd, Presiding Judge
Appellant: John R. Christensen, Timothy A. Filz, Joseph L.
Breitenbach, Christensen Fulton & Filz, PLLC, Billings,
Appellee: John M. Van Atta, Patten, Peterman, Bekkedahl &
Green, PLLC, Billings, Montana (Attorney for Carol Daniel)
Doak, Doak & Associates, P.C., Billings, Montana
(Attorney for Roger Daniel)
E. Sands, Sands Law Office, Billings, Montana (Attorney for
Jeremiah Shea Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Kim Wallinder Moffet appeals an order of the Thirteenth
Judicial District Court, Yellowstone County, dismissing her
petition for conservatorship of her mother, J.J.W. We address
whether the District Court erred by denying Moffet's
petition. We affirm.
In March 2015, Moffet filed a petition for conservatorship in
the District Court, seeking to appoint a third-party
conservator for J.J.W. J.J.W. and her other daughter, Carol
Daniel, opposed the petition. In September 2015, Moffet moved
for partial summary judgment that J.J.W. met the first prong
of the test for appointing a conservator, set forth in §
72-5-409(2), MCA. Section 72-5-409(2), MCA, provides:
Appointment of a conservator . . . may be made in relation to
the estate and affairs of a person if the court determines
(a) The person is unable to manage the person's property
and affairs effectively for reasons such as mental illness,
mental deficiency, physical illness or disability, advanced
age . . .; and
(b) the person has property that will be wasted or dissipated
unless proper management is provided . . . .
December 2015, the District Court granted Moffet's
motion, finding that J.J.W. "is afflicted with a mental
condition due to her advanced age that requires she be
assisted with decisions that are of significant
consequence." The District Court then held a hearing on
the second prong of § 72-5-409(2), MCA: whether J.J.W.
"has property that will be wasted or dissipated unless
proper management is provided." At the conclusion of
Moffet's case-in-chief, Daniel moved for summary judgment
on the basis that Moffet did not produce sufficient evidence
to show J.J.W.'s assets will be wasted or dissipated.
J.J.W. joined Daniel's motion, which the ...