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In re Conservatorship of Brody

Court of Appeals of Michigan

September 19, 2017

In re CONSERVATORSHIP OF RHEA BRODY.
v.
ROBERT D. BRODY, Appellant, MARY LYNEIS, as Conservator for RHEA BRODY, Appellee, and JAY BRODY, Interested Party, and GERALD BRODY and CATHY B. DEUTCHMAN, Interested Parties-Appellees.

         Oakland Probate Court LC No. 2015-367333-CA

          Before: O'Brien, P.J., and Jansen and Murray, JJ.

          PER CURIAM.

         In this estate case involving Rhea Brody's personal assets, Rhea's husband, appellant Robert Brody, appeals as of right the probate court's order appointing Mary Lyneis as Rhea's conservator. Rhea's daughter, Cathy B. Deutchman, filed the petition for conservatorship, which was opposed by Robert and Jay Brody, the son of Robert and Rhea. We affirm.

         I. APPOINTMENT OF A CONSERVATOR

         Robert argues on appeal that the probate court abused its discretion by appointing a conservator to manage Rhea's estate and affairs under MCL 700.5401. We disagree.

         This Court reviews a probate court's appointment of a conservator for an abuse of discretion. In re Conservatorship of Shirley Bittner, 312 Mich.App. 227, 235; 879 N.W.2d 269 (2015). "An abuse of discretion occurs when the court's decision falls outside the range of reasonable and principled outcomes." Id. This Court reviews the probate court's factual findings for clear error and its legal conclusions de novo. Id. at 235-236. "A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." In re Townsend Conservatorship, 293 Mich.App. 182, 186; 809 N.W.2d 424 (2011) (quotation marks and citation omitted). "The reviewing court will defer to the probate court on matters of credibility, and will give broad deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing court." In re Erickson Estate, 202 Mich.App. 329, 331; 508 N.W.2d 181 (1993).

         Article V of the Estates and Protected Individuals Code (EPIC), MCL 700.5101 et seq., provides protection for individuals under disability. The standards governing conservatorship appointments are described in MCL 700.5401, which, in relevant part, provides:

(3) The court may appoint a conservator or make another protective order in relation to an individual's estate and affairs if the court determines both of the following:
(a) The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.
(b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual's support, care, and welfare or for those entitled to the individual's support, and that protection is necessary to obtain or provide money.

         These prerequisites must be established by clear and convincing evidence. MCL 700.5406(7). The clear-and-convincing-evidence standard is " 'the most demanding standard applied in civil cases . . . .' " Bittner, 312 Mich.App. at 237, quoting In re Martin, 450 Mich. 204, 227; 538 N.W.2d 399 (1995). Clear and convincing proof

produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [Martin, 450 at 227 (quotation marks and citations omitted; alterations in original).]

         Robert does not dispute that MCL 700.5401(3)(a) is satisfied, as Rhea's frontal temporal dementia renders her unable to manage her property or business affairs effectively. On appeal, Robert argues only that the probate court clearly erred in its conclusion that Rhea "has property that will be wasted or dissipated unless proper management is provided." We hold that the circuit court did not clearly err when it found that Rhea had property that would be wasted or dissipated without proper protection and oversight, or abuse its discretion when it appointed a conservator to oversee Rhea's estate.

         The probate court thoughtfully considered Rhea's circumstances and the nature of each of the assets in Rhea's personal estate-comprising a Fifth Third bank account for tax refunds, an individually-held IRA, a jointly-held Chase Bank account, and jointly-owned homes in Michigan and Florida-before concluding that the requirements of MCL 700.5401(3) had been met by clear and convincing evidence. The Fifth Third bank account, containing only $580.60 at the time of the hearing, existed for depositing tax refunds. Lyneis testified that, as special conservator, she was responsible for reviewing Rhea's personal tax return and paying any tax liabilities, which included Rhea's potentially-substantial income from the Rhea Trust. Rhea risked negative tax consequences for failure to file her signed return and pay any liabilities. While the probate proceedings were ongoing, Jay completed Rhea's tax return but refused to provide it to Lyneis for review. Without the ability to review Rhea's tax return, Lyneis was unable to verify whether any refund was properly deposited into the Fifth Third account. Assets involving tax liabilities and refunds, including the Fifth Third account dealing with refunds, risked waste or dissipation without proper management.

         The probate court noted that Rhea's IRA required an election of annual distributions. The probate court noted that with no one in place to authorize mandatory distributions, Rhea's IRA would be subject to tax penalties, which created a risk of waste and dissipation of the IRA funds. Robert argues that the probate court could not have found the IRA subject to waste or dissipation as a result of tax penalties because automatic distributions from the IRA had been set up to occur automatically for years, and Rhea's IRA requires "minimal involvement." Respondent fails to explain how the fact that an asset requires only minimal oversight renders the asset less likely to fall victim to waste or dissipation. Further, Robert's argument is not supported by the record. Although Lyneis testified that the annual distribution was deposited into the ...


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