In the Matter of the Guardianship of and Conservatorship for:
BRADFORD D. LUND, An Adult.
MICHELLE A. LUND, et al., Petitioners/Appellants, v. WILLIAM S. LUND, et al., Respondents/Appellees.
No. 1 CA-CV 16-0453
ARIZONA COURT OF APPEALS DIVISION ONE
December 26, 2017
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge, Retired
The Honorable Robert D. Myers, Judge, Retired
The Honorable Gary E. Donahoe, Judge, Retired
The Honorable Barbara A. Hamner, Judge Pro Tempore, Retired
AFFIRMED
Mooney, Wright & Moore, PLLC, Mesa
By Paul J. Mooney
Counsel for Petitioners/Appellants Kristen Lund Olson and Michelle A. Lund Sheppard, Mullin, Richter & Hampton, LLP, Costa Mesa, CA
Pro Hac Vice for Petitioners/Appellants Kristen Lund Olson and Michelle A. Lund
By Roger T. Hargrove
Kile & Kupiszewski Law Firm, LLC, Scottsdale
By Stephen J.P. Kupiszewski, Jennifer L. Kupiszewski
Counsel for Appellee Bradford D. Lund
Grobaty & Pitet, LLP,Newport Beach, CA
By Joseph P. Busch, III
Pro Hac Vice for Appellee Bradford D. Lund
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired) joined.
BROWN, Judge:
¶1 After more than six years of contentious litigation and a ten-day bench trial, the superior court found that Michelle A. Lund and Kristen Lund Olson did not meet their burden of proving Bradford D. Lund ("Bradford") is in need of a guardian or conservator. Olson raises several issues on appeal, including whether the court abused its discretion in (1) denying the petition for guardianship and conservatorship; (2) refusing to order the court-appointed investigator and physician to update their reports; (3) denying requests to update discovery; (4) admitting and excluding evidence at trial; (5) limiting Bradford's examination; (6) rejecting the argument that Bradford was not represented by independent counsel; and (7) dismissing the guardian ad litem ("GAL"). For the following reasons, we affirm.
¶2 In February 2006, Bradford filed a voluntary petition for guardianship, stating that a "guardian is necessary because . . . [he] is impaired by reason of mental deficiency to the extent that he is easily influenced and lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his medical care." Bradford, however, later withdrew the petition.
¶3 In October 2009, Olson filed a petition to appoint a guardian, conservator, guardian ad litem, and next friend for Bradford,1 who is Walt Disney's grandson and the beneficiary of significant trusts. She amended the petition in November 2010, alleging in part that due to Bradford's cognitive and mental disabilities, he is incapacitated. She further alleged that Bradford is "unable to manage [his] estate and affairs effectively" and has "property which will be wasted or dissipated." Olson requested that the court order a "limited guardianship and conservatorship" to help Bradford with decisions regarding health care, his living situation, his assets, and how his funds are expended. Bradford, represented by private counsel, objected to the petition but admitted he "has had to cope with developmental disabilities." William S. Lund (Bradford's father), and his wife, Sherry L. Lund (Bradford's step-mother), filed a separate objection to Olson's petition.2
¶4 The superior court appointed Robert Segelbaum as the investigator and Dr. H. Daniel Blackwood as the physician to determine whether Bradford needed a guardian and conservator. Segelbaum filed his investigative report on May 19, 2011, and Dr. Blackwood evaluated Bradford on May 3, 2011.
¶5 Following years of intensive litigation, including appointment of a special discovery master, substitution of counsel at various stages, and successive re-assignment of the case to several judges, the superior court conducted a bench trial that concluded in April 2016. At Bradford's request, the court issued findings of fact and conclusions of law (see Appendix A), denying Olson's petition.
¶6 After considering post-trial motions, including requests for attorneys' fees and costs submitted by the Lunds, the superior court entered a final judgment dismissing the petition and declining to award fees or costs. The court also vacated "restrictions previously imposed . . . on the distribution of income and principal of the Walt Disney Family Trust" to Bradford, and directed Wells Fargo, as trustee, to release funds to Bradford in accordance with the terms of the Trust. Olson's timely appeal followed.
¶7 We review guardianship orders for an abuse of discretion. See In re Guardianship of Kelly, 184 Ariz. 514, 518 (App. 1996). The court, when exercising its discretion, "has wide latitude to perform its statutory duty to safeguard the well-being of the ward." Id. But the court abuses that discretion "where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001). When findings of fact are issued according to Rule 52 of the Arizona Rules of Civil Procedure, we will affirm the superior court's factual findings "unless they are clearly erroneous or not supported by substantial evidence." Nordstrom, Inc. v. Maricopa Cty., 207 Ariz. 553, 558, ¶ 18 (App. 2004).
¶8 Under Arizona Revised Statutes ("A.R.S.") section 14-5304(B),
[t]he court may appoint a general or limited guardian . . . if the court finds by clear and convincing evidence that:
1. The person for whom a guardian is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of the incapacitated person.
3. The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance.
The term "incapacitated person" is defined as an individual who is "impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person." A.R.S. § 14-5101(3). The phrase "responsible decisions concerning his person" means that the "putative ward's decision-making process is so impaired that he is unable to care for his personal safety or unable to attend to and provide for such necessities as food, shelter, clothing, and medical care, without which physical injury or illness may occur." In re Guardianship of Reyes, 152 Ariz. 235, 236 (App. 1986).
¶9 Olson argues the court abused its discretion by denying her petition for guardianship based on insufficient evidence.3 She contends that William, Sherry, and Rachel "cannot be trusted" as Bradford's "de facto" guardians because they have abused the role by "isolating, controlling, surveilling, and medicating Brad[ford] against his own wishes." We therefore review whether substantial evidence supports the court's denial of the guardianship petition. Because it would serve no useful purpose to analyze all of the testimony and exhibits presented at the ten-day trial, by way of example only, we briefly summarize some of the evidence supporting the court's decision.
¶10 Mike Lovell, who traveled with Bradford on several occasions, testified that he and Bradford traveled to Los Angeles for a movie premier about a year before trial. While staying at a hotel, the two were in separate rooms. Bradford did not need help showering, shaving, dressing, or being on time. Bradford "appeared to be competent when [he] traveled with him" and was "capable of managing his daily affairs."
¶11 The court-appointed investigator, Segelbaum, reported in 2011 there was no "reason to secure a guardianship." Bradford seemed "very satisfied and very content with his present environment." He was able to do what he wanted and articulated his "needs, wants, and desires." His needs were met and he was not "in any danger of hurting himself or others." At trial, Segelbaum confirmed his prior recommendation and findings.
¶12 Dr. Blackwood, a neuropsychologist and the court-appointed physician, reported in 2011 that Bradford, although "suffer[ing] significant cognitive deterioration from 2003 to [2011]," was not cognitively incapacitated. Bradford "had an organizer, from which he produced his list of medications," and "did not . . . exhibit any psychotic symptomatology." Although having "word finding problems on occasion," Bradford's "[s]peech was fluent, articulate, and well modulated." Bradford's eye contact was also appropriate, and, when performing assessment tasks, he was able to monitor his performance reasonably well. At trial, Blackwood confirmed the findings of his 2011 report, explaining it was based on his interactions with Bradford and a clinical, quantitative, and qualitative examination. Ultimately, Blackwood concluded Bradford did not need a guardian.
¶13 Dr. Chung, a neurologist and one of Bradford's treating physicians, testified that Bradford is "able to direct his own medical treatment," and that Bradford knew and accurately spelled the names of his medications and explained why he was taking them. In his February 2016 consultation report on Bradford's overall cognitive function, Chung explained that Bradford was witty and could answer questions appropriately; he demonstrated "what he wants to do" and "how to acquire needed...
