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Lehman v. Bielenberg

Court of Appeals of Oregon

July 10, 2013

STEVEN LEHMAN, Trustee, Appellant,
v.
DANIEL BIELENBERG, Respondent.

Argued and submitted on November 15, 2012.

Marion County Circuit Court 11C15524, Thomas M. Hart, Judge.

James F. Little argued the cause and filed the briefs for appellant.

Mary Kim Wood argued the cause and filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Hadlock, Judge.

HADLOCK, J.

This appeal relates to disputes over the care of Darline Stafford, who was in her early 80s at the time of these proceedings, and who is related to both parties to the appeal. Steven Lehman ("trustee"), is Stafford's son-in-law and has served since 2009 as a trustee of a revocable living trust that Stafford and her husband had formed the previous year. In 2011, Daniel Bielenberg ("petitioner"), Stafford's son, petitioned for appointment of a conservator and guardian for Stafford, alleging that she was financially incapable and could not provide for her basic needs. Stafford and trustee objected to the requested appointments. The trial court appointed a court visitor to investigate whether appointment of a conservator and guardian would be appropriate. After conducting an investigation, the court visitor reported that no guardianship or conservatorship was necessary.

During the August 3, 2011, status conference that followed preparation of the court visitor's report, the parties agreed that no conservatorship or guardianship should be established. After a later hearing, the court entered a general judgment of dismissal in which it dismissed the petition and asked both petitioner and trustee to submit attorney-fee petitions for the court's review. The judgment specified that trustee could seek attorney fees for the period before August 3, 2011, and that petitioner could seek attorney fees incurred from that date until the date of judgment. Finally, the judgment stated that fees would be allocated "subsequent to Rule 68 hearing before [the] court." On trustee's appeal from that general judgment of dismissal, we affirm.

Although the parties hotly dispute which family members bear responsibility for the events that precipitated this litigation, the facts pertinent to the issues on appeal are mainly procedural and, except as noted below, are not disputed in any way material to the issues before this court. Stafford and her husband formed a joint revocable living trust in 2008 in which they named trustee as successor trustee. After Stafford's husband died, Stafford amended the trust, establishing herself and trustee as co-trustees. Trustee has served in that capacity continually since 2009. Trustee's wife, Jeanie Lehman (who is Stafford's daughter) has been Stafford's healthcare representative since 2008 and, since about the same time, has coordinated Stafford's care, sometimes providing services directly.

In May 2011, petitioner filed a petition for appointment of a conservator for Stafford, alleging that she was financially incapable and had assets that required management or protection. Two weeks later, Stafford resigned as co-trustee, leaving trustee as sole trustee of the revocable trust. Stafford then filed an objection to the petition, stating that her living trust contained "substantially all of her property" and asserting that the trust was being effectively administered according to its terms and her wishes.[1] About a week later, Stafford and trustee filed a joint response to the petition and asserted various counterclaims.

In June 2011, the trial court appointed a court visitor to interview witnesses and to prepare a written report for the court. At the same time, petitioner notified the court that he intended to amend the petition to (1) exclude all property in the trust and (2) appoint a guardian, in addition to a conservator. The trial court set a status conference for August 3, but said that, if there ended up being "no recommendation for the appointment of a conservator, everything else is going fine in the current set up, and they follow through and dismiss them [apparently referencing the petitions], we won't have anybody come back at all." In late July, before the court visitor submitted his report, petitioner filed a first amended petition for appointment of a conservator and guardian, alleging that Stafford was financially incapable and was incapacitated with respect to providing for her basic needs. Petitioner acknowledged that the only property that needed management was whatever property was not included in the trust. He also alleged, however, that he did not know which of Stafford's property was in the trust, and he claimed that he had not known about the trust when he filed the original petition.

The court visitor submitted his report on August 3, 2011. The visitor did not recommend appointment of a conservator or a guardian, as he had no concerns for Stafford's well-being. To the contrary, the visitor reported, trustee and Jeanie Lehman were providing "fastidious attention" to Stafford's financial and healthcare issues. The visitor opined that the trust arrangement was appropriate for Stafford at that time.

Also on August 3, Stafford and trustee filed a joint response to the first amended petition. In a counterclaim, styled as a request for "Judicial Intervention in Administration of Trust and Declaratory Judgment, " they sought (1) a declaratory judgment that the trust was valid, (2) court approval of hourly rates for trustee, bookkeeping, and caregiver services that trustee and Jeanie Lehman provided to Stafford, and (3) costs, attorney fees, and an enhanced prevailing-party fee.[2]

The parties met with the trial court in chambers that same day and attempted to resolve some aspects of their dispute in light of the court visitor's report that Stafford was being cared for appropriately. As the trial court later recalled, petitioner said that he was "no longer going to go forward with any of that, " apparently referencing the petition for conservatorship and guardianship. Accordingly, the parties agreed to set another proceeding to deal solely with the request that Stafford and ...


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