Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

In the Matter of the Protective 

Proceedings of Vernon H., 

VERNON H. and JUDITH H., 

Appellants, 

v. 

PETER H., 

Appellee. 

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) Supreme Court No. S-14960 

Superior Court No. 3AN-12-00209 PR 

O P I N I O N 

No. 6945 – August 22, 2014 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Andrew Guidi, Judge. 

Appearances: Anne R. Helzer, Anchorage, for Appellant 

Vernon H., and Kenneth P. Jacobus, Kenneth P. Jacobus, 

P.C., Anchorage, for Appellant Judith H. Jonathon A. 

Katcher, Pope & Katcher, Anchorage, for Appellee Peter H. 

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, 

Justices. [Maassen, Justice, not participating.] 

FABE, Chief Justice. 

I. INTRODUCTION 

An elderly father was hospitalized for medical testing and treatment. The 

father had previously granted a durable power of attorney to his eldest adult daughter and 
 

 

 

 

had been residing with his youngest adult daughter and her family. One of the father’s 

adult sons initiated guardianship and conservatorship proceedings over the father. The 

son’s petition alleged that the father was incapacitated and unable to manage his affairs 

or his property, citing the hospital’s psychiatric evaluation and the son’s own 

observations. The petition also alleged that the eldest and youngest daughters were not 

looking after the father’s best interests and wishes. The son later terminated the 

protective proceedings following a neuropsychological evaluation by the father’s expert 

that concluded that the father did not need a guardian. 

The father and his eldest daughter filed motions for attorney’s fees and 

costs incurred in defending against the son’s petition. The superior court denied both 

motions, concluding that Alaska Civil Rule 82 was entirely displaced by 

AS 13.26.131(d) and that the son’s actions did not meet the standard for fee shifting 

required by that statute: that the petitioner initiated a proceeding that was “malicious, 

frivolous, or without just cause.” We agree with the superior court’s analysis and affirm. 

II. FACTS AND PROCEEDINGS 

A. Vernon’s Family And His Recent Medical Problems 

Vernon H.1 was born in 1928 and has 15 living adult children. Vernon 

granted a durable general power of attorney over “[a]ll . . . matters” to his eldest 

daughter, Judith, in 2002. Since 2002, Vernon has chosen to live with his youngest 

daughter, Jeannette, and her family. Vernon reaffirmed those decisions in 

December 2011. 

Peter, one of Vernon’s sons, grew increasingly worried about his father’s 

decision-making during Vernon’s battle with cancer in late 2011 and early 2012. In 

We use initials in lieu of the parties’ last names to protect the family’s 

privacy. 

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1 
 

 

 

 

 

 

 

 

late 2011, Vernon exhibited confusion, and tests revealed elevated calcium levels; 

consequently, Vernon was hospitalized. He underwent diagnostic testing and some 

treatment for suspected cancer, and he was later discharged and referred for further 

outpatient oncology testing and treatment. During Vernon’s first stay in the hospital, 

Peter allegedly observed that Vernon “was out of it,” that he “could not remember what 

was going on from hour to hour,” and that he mistakenly “complained his children were 

not coming to see him.” 

Vernon’s condition appears to have fluctuated following his first discharge 

from the hospital in late 2011. On one hand, in a pair of emails from Peter to the other 

siblings, Peter stated: “Dad seems . . . more alert than I’ve seen him in weeks, maybe a 

month. . . . He spoke clearly, decisively and was able to comprehend everything being 

said.” 2 On the other hand, Vernon’s primary physician observed that Vernon “was not 

very alert or himself at all.” Vernon’s doctor also recalled that he told Judith that Vernon 

had to undergo several more tests, but Judith was reluctant to have any more tests 

performed, claiming that “her dad was a ‘very spiritual person, and felt like his problem 

had actually gotten better or gone away.’ ” Peter alleges that he was present at a meeting 

with Vernon and Vernon’s doctors during which a course of treatment was agreed to, but 

Vernon subsequently canceled the follow-up doctor’s appointments because Vernon 

mistakenly believed “the doctors had given him a clean bill of health.” The doctor 

recalled that Judith did not seek follow-up testing and treatment until the doctor informed 

Judith that Vernon “would likely DIE within a few days if she did not take him to the 

hospital ASAP.” 

Peter also stated: “Dad remains very alert and aware of everything around 

him. He carried on conversations during the entire visit, he answered all of the Dr.’s 

questions, asked his own questions when he had any, and made the final decisions to 

move forward with the upcoming surgery and necessary treatments.” 

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2 
 

 

 

 

 

 

 

On December 19, 2011, Alaska’s Adult Protective Services agency received 

a report alleging that Vernon was “mentally incapacitated,” that Jeannette and Judith had 

“refused contact with family and have disregarded physician care and advice,” and that 

there was “possible [f]inancial [e]xploitation.” Judith recalls that around the same time, 

several siblings “paid an unannounced visit at [Vernon’s] home” with Peter as 

“spokesperson,” trying to “convince [Vernon] to move out of his home and into another 

residence.” Vernon declined. 

Vernon was readmitted to the hospital on January 20, 2012, with the 

medical record noting that he was “pleasantly confused.” Vernon underwent 

chemotherapy treatment. At one point during this second hospitalization, Judith refused 

morphine for her father, and even physically pushed a nurse away when she was trying 

to administer it, before Vernon countermanded her order.3 Judith also tried to exclude 

the other siblings from the hospital room until Vernon told her he didn’t want a 

“standoff.” Peter’s affidavit states that Peter visited Vernon during this second 

hospitalization and observed that Vernon “was out of it” and “did not know why he was 

in the hospital” and “did not remember from one day to the next.” 

On January 26, 2012, Peter drafted an email to the other siblings 

summarizing his recent discussions with Vernon’s doctors. In the email, Peter stated that 

Vernon said he “ ‘pretty much’ understands what the doctor is explaining” and that 

“Judy will remain ‘point person’ for the family.” Judith alleges that Peter was “playing 

both sides of the fence” and that three days earlier, Peter and many other siblings had 

“tried to force” Vernon to sign a new durable general power of attorney they had drafted. 

The hospital appears to have filed a notice of harm with Adult Protective 

Services following this incident. 

-4- 6945 

3 
 

 

 

 

 

 

 

 

 

 

 

Peter also alleges that on January 26, Vernon asked him to confer with Vernon’s attorney 

and help manage and distribute some financial assets. 

On January 28, 2012, Vernon executed a will while still in the hospital. 

Peter’s affidavit states that he was in the room and observed that Vernon “was sluggish,” 

took “several minutes to write his name” and “more than a minute to initial each of the 

pages,” had to be coached on how to spell his name, did not have his hearing aids in, and 

did not have reading glasses on for execution of two of the three copies of the will. The 

superior court later reviewed a video of the will execution and described Peter’s 

“characterization of the events in the video as accurate.” Peter requested a copy of the 

will,4

 and Vernon allegedly refused to provide it.5 

In order to “assess [Vernon’s] capacity to accept/refuse pain medication and 

other minor issues such as dietary care,” the hospital had a nurse practitioner perform a 

psychiatric evaluation of Vernon on January 30, 2012.6 The evaluation noted that 

Vernon was “notably confused and delirious prior to his last admission in December,” 

that he had been “pleasantly confused” at the time of his readmission in January, and that 

“[h]is mental status has varied somewhat since admission, with some definite clearing . . . 

from [January] 25th through the 28th.” The report stated that Judith claimed that Vernon 

“is more confused [today] than he usually is and that this is not his baseline mental 

4 Peter stated in an affidavit that he asked for the will because he assumed 

that he “could use the will to fulfill [Vernon’s] wishes for [Peter] to deal with the 

[financial assets]” that Vernon had allegedly asked him to manage a few days earlier. 

5 A few days later, Peter’s attorney demanded that Vernon’s lawyer provide 

a copy of the will to Peter, stating the attorney’s belief that Vernon “directed [Vernon’s 

attorney] repeatedly to provide a copy of the document to Peter.” Vernon’s lawyer 

responded saying that Vernon clearly stated at the will execution that Peter was not to 

have a copy of the will. 

6 The evaluation was co-signed by a doctor. 

-5- 6945
 
 

 

 

 

 

 

 

 

 

 

 

status.” Judith explained that Vernon’s cognitive abilities had “worsened significantly” 

since the day before.7 The hospital’s psychiatric evaluation recorded that on January 30, 

2012, Vernon was “displaying a significantly fluctuating span of attention, an inability 

to encode or recall information, and general cognitive disorganization” and that “[h]is 

insight is poor” and “[h]is judgment is impaired.” 

The hospital’s psychiatric evaluation concluded that Vernon’s symptoms 

that day were “very consistent with delirium” and that “[a]t this time, the patient is not 

able to demonstrate that he can retain and weigh the risks and benefits of any 

information, and actually does not demonstrate capacity regarding the potential 

consequences of pain management on an acute basis.” The report described this 

delirious condition as “acute” and subject to short-term fluctuation.8 The evaluation’s 

conclusions were borne out by observations of doctors and hospital staff over the next 

few days.9 

7 Vernon was allegedly given Benadryl one and a half days before the 

psychiatric evaluation, and Vernon’s medical expert, Dr. Paul Craig, subsequently 

determined that Benadryl “can result in an acute confusional state” in an elderly patient 

that would be “consistent with Vernon’s reported comportment following the dose of 

Benadryl in January [2012].” 

8 The same nurse practitioner stated in a follow-up note in the medical 

records that she was “certainly not encouraging seeking guardianship at this time, based 

on the description of his high functioning prior to delirium by Judy and his physicians.” 

9 Medical progress notes from one of Vernon’s doctors on January 30, 2012 

state that Vernon had “a fluctuating mental status” and was “competent to make limited 

decisions about care of himself, such as pain[,] likes[, and] dislikes,” but the doctor did 

“not feel that [Vernon] is competent to discuss complicated medical issues and evaluate[] 

risk-benefit.” Similarly, on February 1, 2012, one of Vernon’s doctors noted in a 

medical record that Vernon displayed “[s]table delirium and lethargy,” while Vernon’s 

dietician noted his “fluctuating mental status.” 

-6- 6945
 
 

 

 

 

 

 

B.	 Peter Petitions For Guardianship And Conservatorship But Later 

Withdraws The Petitions. 

Two days after the January 30, 2012 psychiatric evaluation, Peter10 filed 

emergency and long-term petitions for guardianship over Vernon pursuant to 

AS 13.26.10511 and for conservatorship over Vernon’s property pursuant to 

12	 13 AS 13.26.180. Peter alleged that Vernon was incapacitated and unable to manage his 

property.14 Peter’s petition characterized the hospital’s “[n]europsych evaluation” of 

10 Peter and another sibling allege in affidavits that Peter had the support of 

all of the surviving adult siblings, save Judith and Jeannette. One of the siblings alleged 

in an affidavit that she and the other siblings supported Peter’s guardianship petition 

because Vernon “appeared . . . to be mentally compromised” and because they were 

“very concerned that Judith has repeatedly demonstrated a profound inability to take care 

of Vernon’s health care best interests.” 

11 AS 13.26.105(a) provides that “[a]ny person may petition the court for a 

finding of incapacity and the appointment of a guardian . . . for another person,” and 

AS 13.26.105(c) provides that “[t]he petition may also . . . include a request for 

temporary guardianship . . . if the petitioner believes there is an imminent danger that the 

physical health or safety of the respondent will be seriously impaired during the 

pendency of the guardianship proceeding.” 

12 AS 13.26.180(a) provides that “any person who would be adversely 

affected by lack of effective management of the property and affairs of the person to be 

protected, may petition for the appointment of a conservator,” and AS 13.26.180(c) 

provides that “[t]he petition may include a request for temporary conservatorship . . . if 

it appears that the respondent’s property is likely to be wasted or dissipated during the 

pendency of the conservatorship proceeding.” 

13 AS 13.26.005(5) defines an “incapacitated person” as “ a person whose 

ability to receive and evaluate information or to communicate decisions is impaired . . . 

to the extent that the person lacks the ability to provide the essential requirements for the 

person’s physical health or safety without court-ordered assistance.” 

14 AS 13.26.165(2) provides that a conservator may be appointed “if the court 

(continued...) 

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January 30, 2012, as determining that Vernon “is not competent to make treatment or 

financial decisions,” and he further alleged that Judith “is attempting to remove [Vernon] 

from [a healthcare facility] against [Vernon’s] express wishes and against medical 

advice.” Peter also alleged that Vernon owned a one-percent interest in a natural gas 

lease that was “currently in the process of distribution” and that Vernon “directed [Peter] 

to become the trustee” and “manage this investment.” 

Vernon, through his privately retained attorney, moved to dismiss the 

petition, stating that Vernon was lucid and competent, wished to retain Judith as his 

durable power of attorney, wished to continue living with Jeannette, and intended to 

argue that Peter brought the petition in bad faith to gain control of Vernon’s assets to pay 

Peter’s personal debts. Judith, through her separate lawyer, stated that Judith concurred 

in the motion to dismiss. Vernon supported the motion with an affidavit of his own, 

along with affidavits from 16 other people attesting to his capacity. 

In a preliminary report from the court visitor dated February 7, 2012, the 

visitor noted that Peter filed the petition “out of concern for [Vernon’s] medical 

well-being” and that Judith had been “controlling and difficult,” had “refuse[d] pain 

medication for her father despite hospital standards of care,” and had “reportedly pushed 

a nurse[’]s hand away when attempting to administer morphine.” The visitor observed 

that Vernon was “cognitively impaired (at varying degrees)” but that this impairment 

may have been temporary due to his hospitalization. The visitor recommended a 

continuance to give Vernon a chance to “regain his cognitive abilities after treatment.” 

The visitor later conducted interviews to follow up on the two reports of harm filed with 

14(...continued) 

determines that (A) the person is unable to manage the person’s property and affairs 

effectively . . . ; and (B) the person has property that will be wasted or dissipated unless 

proper management is provided . . . .” 

-8- 6945 
 

 

 

 

 

Adult Protective Services and concluded that “[t]he reports of harm were not 

substantiated and Adult Protective Services has not filed as a party to this matter though 

they are informed of these proceedings.” In late March, the visitor notified counsel for 

Vernon, Judith, and Peter that a full neurological assessment by Vernon’s expert was 

forthcoming and that in the meantime the court visitor’s “current recommendation is that 

a guardian[] not be appointed.” 

On April 4, 2012, Judith’s attorney submitted to the superior court and 

opposing counsel a report from Dr. Paul Craig, a board-certified clinical 

neuropsychologist. Vernon’s attorney secured Dr. Craig as an expert, and after 

conducting two lengthy interviews and administering a battery of cognitive tests, 

Dr. Craig concluded that Vernon was “unequivocally competent” and met “all criteria 

for being his own guardian, making his own decisions, and making informed choices 

regarding his health care.” Dr. Craig expressly concurred with the previous 

determination by one of Vernon’s doctors expressed in a medical record dated 

February 21, 2012, that Vernon “is fully competent to carry out complex decision 

making. He is cognizant of the risk/benefits and has good insight into what is happening 

to him medically and psychologically.” Dr. Craig noted that Vernon suffered from 

“emotional distress” stemming from Peter’s petition that put “his ability to make his own 

decisions . . . in dispute.” Finally, Dr. Craig specifically noted that Vernon was happy 

with the services Judith and Jeannette were giving him: Vernon “was very clear about 

his positive relationship with [Jeannette and her family] with whom he [was] residing” 

and “ha[d] no interest in relocating,” and Vernon “expressed confidence about [Judith].” 

On April 9, 2012, one day before trial was scheduled to begin, Peter 

notified the superior court that he wanted to withdraw his petitions and terminate the 

proceedings. The superior court signed the proposed order on April 11. 

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C.	 The Superior Court Denies Vernon’s And Judith’s Motions For 

Attorney’s Fees And Costs. 

Vernon moved for full attorney’s fees and for costs related to Dr. Craig’s 

expert report.15 The motion alleged that Peter petitioned for guardianship and 

conservatorship knowing that Vernon was not incapacitated or incompetent and that 

Peter’s true purpose was “to cause deliberate harm and emotional distress” to Vernon, 

Judith, and Jeannette “because [Vernon] would not allow [Peter] to view [Vernon’s] 

will.” The motion also alleged that Peter initiated the proceedings “for the malicious and 

selfish purpose of obtaining his father’s assets in a thoughtless effort to preserve [Peter’s] 

own rapidly declining financial situation.” The motion stated that Vernon was entitled 

16	 17 to attorney’s fees and costs under both AS 13.26.131(d) and Civil Rule 82. 

Separately, Judith also moved for full attorney’s fees, incorporating and reiterating the 

arguments made in Vernon’s motion.18 

Peter opposed the motions, denying Vernon’s and Judith’s allegations that 

he initiated the proceedings for an improper purpose. Peter argued that when he filed his 

petition on February 1, “he had a good faith, non-frivolous belief, based on substantial 

evidence, that Vernon was an incapacitated person in need of a guardian and a 

15 He sought $20,408.50 in attorney’s fees and $5,657.50 for Dr. Craig’s 

report. 

16 AS 13.26.131(d) provides: “The court may require the petitioner [in a 

protective proceeding] to pay all or some of the costs described in (a) and (b) of this 

section if the court finds that the petitioner initiated a proceeding under this chapter that 

was malicious, frivolous, or without just cause.” 

17 Alaska R. Civ. P. 82(a) provides: “Except as otherwise provided by law 

or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney’s 

fees calculated under this rule.” 

18 She sought $13,117.50. 

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conservator.” Peter further argued that Civil Rule 82 was displaced by AS 13.26.131(d) 

and that no fees should be awarded under AS 13.26.131(d) because “[a]t the time he 

initiated his petition Peter had abundant evidence that Vernon was incompetent and that 

Judith was not taking good care of him” and because there was “no evidence” of an 

improper purpose. Peter pointed to his own affidavits about his contemporaneous 

observations of his father’s condition, as well as the corroborating psychiatric evaluation 

performed by the hospital. He also argues that his subjective beliefs were objectively 

reasonable given the confirming notes of Vernon’s confused mental state in Vernon’s 

medical records prior to Peter’s filing of the petition, as well as Vernon’s general 

practitioner’s description of events after Vernon’s first hospitalization. He argues that 

because he didn’t have access to all of Vernon’s medical records until after he filed the 

petition, he had no reason to believe that “Vernon’s delirium could be temporary.” 

The superior court denied Vernon’s and Judith’s motions for attorney’s fees 

and costs. The superior court first ruled that Civil Rule 82 could not apply in this case 

because AS 13.26.131(d) “sets out ‘a specific statutory scheme for awarding attorney’s 

fees’ . . . [and] therefore . . . displaces Civil Rule 82.” 19 The superior court further ruled 

that attorney’s fees of privately retained counsel may be recovered under 

AS 13.26.131(d).20 The superior court then concluded that “there is insufficient evidence 

to support a finding that [Peter] instituted this proceeding ‘maliciously, frivolously, or 

without just cause.’ ” On the contrary, the superior court stated that “[t]he detailed 

evidence presented by [Peter] makes out a prima facie case that this action was not 

initiated maliciously, frivolously or without just cause,” noting that Peter had an 

19 The superior court quoted Enders v. Parker, 66 P.3d 11, 14 (Alaska 2003). 

20 The superior court cited In re Guardianship of McGregory, 193 P.3d 295, 

298 (Alaska 2008). 

-11- 6945 
 

 

 

 

objectively reasonable basis to support his subjective belief that Vernon was 

incapacitated and that Judith was not adequately protecting Vernon.21 

Vernon and Judith appeal, filing their briefs jointly. 

III. STANDARDS OF REVIEW 

“Determinations of which legal authorities apply in a case and 

interpretations of what those legal authorities mean are questions of law subject to de 

novo review.”22 “When construing the meaning of a statute under this standard, we look 

to the meaning of the language, the legislative history, and the purpose of the statute and 

adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”23 

Whether a litigant’s conduct is malicious, frivolous, or without just cause 

within the meaning of AS 13.26.131(d) is a question of fact that we review for clear 

error.24 A superior court’s factual finding “is clearly erroneous when a review of the 

entire record leaves us with the ‘definite and firm conviction’ that a mistake has been 

made.”25 

21 Vernon and Judith moved for reconsideration, but the motions were denied 

by operation of Alaska Civil Rule 77(k)(4) when the superior court did not grant the 

motions within 30 days. 

22 ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 

114, 122 (Alaska 2014) (citations omitted). 

23 Enders, 66 P.3d at 13-14 (internal quotation marks and citations omitted). 

24 In re McGregory, 193 P.3d at 300. 

25 Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Wee v. 

Eggener, 225 P.3d 1120, 1124 (Alaska 2010)). 

-12- 6945
 
 

 

 

 

 

 

 

 

 

 

IV.	 DISCUSSION 

A.	 The Superior Court Did Not Err By Denying Vernon’s And Judith’s 

Motions For Attorney’s Fees And Costs Under AS 13.26.131(d). 

Alaska Statutes 13.26.131(a) and (b) allocate certain categories of costs in 

guardianship proceedings to the state, respondent, and petitioner. Alaska 

Statute 13.26.131(d) enables the court to shift those costs to the petitioner: “The court 

may require the petitioner to pay all or some of the costs described in (a) and (b) of this 

section if the court finds that the petitioner initiated a proceeding under this chapter that 

was malicious, frivolous, or without just cause.” 

1.	 The fees of a respondent’s privately retained attorneys and 

experts can qualify for fee shifting under AS 13.26.131(d) as 

“other court and guardianship costs” listed in AS 13.26.131(b). 

The costs and fees identified in AS 13.26.131(a) and (b) — which are 

subject to shifting under AS 13.26.131(d) — include the costs of court visitors, experts, 

and attorneys “appointed” under various sections of the guardianship chapter of Title 13 

of the Alaska Statutes. Nothing in AS 13.26.131 expressly discusses fees and costs of 

a respondent’s privately retained counsel or experts. But subsection (b) includes a catchall provision providing that normally “the respondent shall bear . . . other court and 

guardianship costs incurred under this chapter.” 

Previously, in In re Guardianship of McGregory, we declined to decide 

whether the costs of privately retained counsel or experts fell within one of the 

enumerated categories of costs in subsections (a) or (b) that could be shifted pursuant to 

AS 13.26.131(d).26 Both parties in that appeal agreed that the costs of privately retained 

counsel or experts did not fall within AS 13.26.131(a) or (b) and were therefore not 

shiftable under AS 13.26.131(d), and “[f]or the purposes of this case we accept[ed] this 

193 P.3d at 298 n.8. 

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26 
 

 

 

 

 

 

 

 

 

 

position.” 27 But we noted, without reaching the legal issue, “that it is possible that the 

fees of privately retained counsel are encompassed within the phrase ‘other . . . 

guardianship costs’ in subsection (b).”28 

Today we decide what we hinted at in McGregory: The fees of privately 

retained counsel and experts qualify for fee shifting pursuant to AS 13.26.131(d) if the 

other requirements of that subsection are also satisfied. Those fees and costs constitute 

“other court and guardianship costs incurred under this chapter” within the meaning of 

AS 13.26.131(b). Our interpretation of AS 13.26.131(b) is consistent with our 

interpretation of other statutes allowing for the shifting of “costs.”29 As we have 

routinely held, “the term ‘costs’ is generally construed in Alaska to include attorney’s 

fees.”30 

In this case, Vernon, the respondent, retained counsel and an expert. The 

fees and costs Vernon paid are “other court and guardianship costs” enumerated in 

27 Id. 

28 Id. (omission in original). 

29 For example, AS 29.45.500(a) provides that a taxpayer who “pays taxes 

under protest,” “bring[s] suit in the superior court . . . for recovery of the taxes,” and 

prevails, is entitled to a refund, interest, and “costs.” We have interpreted the allowance 

for “costs” to include attorney’s fees. See Kenai Peninsula Borough v. Port Graham 

Corp., 871 P.2d 1135, 1141 (Alaska 1994); see also Fairbanks N. Star Borough v. Dena 

Nena Henash, 88 P.3d 124, 142 (Alaska 2004); Ketchikan Gateway Borough v. 

Ketchikan Indian Corp., 75 P.3d 1042, 1049 (Alaska 2003). 

Similarly, AS 42.06.610 provides that “ the commission may reallocate the 

cost of the proceeding [under the Pipeline Act] among the parties, including the 

commission, as is just under the circumstances.” We have interpreted “costs” as used in 

AS 42.06.610 to include attorney’s fees. Amerada Hess Pipeline Corp. v. Alaska Pub. 

Utils. Comm’n, 711 P.2d 1170, 1182 (Alaska 1986).

30 Kenai Peninsula Borough, 871 P.2d at 1141. 

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AS 13.26.131(b), normally borne by the respondent. These fees and costs are eligible 

for shifting onto the petitioner, Peter, if the requirements of AS 13.26.131(d) are met. 

2.	 The superior court considered all three of the statutory factors 

required by AS 13.26.131(d): whether the petitioner initiated a 

proceeding that was “malicious, frivolous, or without just 

cause.” 

Vernon’s first substantive argument for reversal is his allegation that the 

superior court’s order denying his motion for fees and costs considered only whether the 

litigation initiated by Peter was “malicious” but failed to consider whether it was 

“frivolous, or without just cause.” Peter maintains that Vernon misunderstands the 

superior court’s “repeated references to all three criteria.” 

We reject Vernon’s reading of the superior court’s order. The superior 

court correctly stated all three prongs of the AS 13.26.131(d) standard: “In guardianship 

proceedings, fees and costs may be awarded only if the Court finds that the petitioner 

initiated the proceeding maliciously, frivolously, or without just cause.” After reviewing 

the factual record, the superior court then found that “[t]he detailed evidence presented 

by Petitioner makes out a prima facie case that this action was not initiated maliciously, 

frivolously or without just cause.” Nothing in the superior court’s order purports to 

restrict its analysis or findings to the maliciousness prong. 

3.	 The superior court did not impermissibly consider matters 

unknown to Peter at the time he initiated the guardianship 

petition in the course of deciding that Peter’s petition was not 

initiated maliciously, frivolously, or without just cause. 

Vernon’s second substantive argument for reversal is his allegation that the 

superior court — to support its conclusion that Peter’s filing for guardianship was not 

malicious, frivolous, or without merit — impermissibly relied on evidence that was not 

known to Peter at the time of his filing of the petition for guardianship. Vernon asserts 

that AS 13.26.131(d)’s adjectives — malicious, frivolous, or without just cause — 

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“appl[y] to the ‘initiation’ of the guardianship proceeding” and that therefore only those 

things known to Peter at the time of his filing of the guardianship petition can properly 

be considered to determine if that filing was malicious, frivolous, or without just cause. 

Vernon further argues that (with the exception of the psychiatric evaluation performed 

by the hospital) Peter never saw the medical records detailing doctors’ observations of 

Vernon’s mental health before Peter filed his petition; Vernon argues that the superior 

court therefore erred by considering those documents in the course of concluding that 

Peter did not initiate his petition maliciously, frivolously, or without just cause. 

We conclude that the superior court did not improperly consider 

information that Peter did not yet know in concluding that Peter did not initiate the 

petition maliciously, frivolously, or without just cause. Instead, the superior court 

properly found that Peter had a good-faith basis for filing his petition based on Peter’s 

own repeated personal observations and his access to the hospital’s psychiatric 

evaluation. The superior court then concluded that this subjective concern for his 

father’s mental condition was corroborated by objectively reasonable indicators such as 

the medical reports that were not available to Peter at the time he filed his petition. 

Vernon misreads the order, mistaking what is really support drawn from objective 

indicators reinforcing the reasonableness of Peter’s subjective concerns and instead 

viewing it as improperly imputing knowledge to Peter that Peter could not possibly have 

known. But as the superior court clearly stated: “The medical records . . . strongly 

support [Peter’s] contention that there was a legitimate concern over [Vernon’s] mental 

clarity and capacity at the time this petition was filed” as well as concern that Judith “was 

not adequately protecting [Vernon].” Information developed through discovery can, as 

here, support a petitioner’s good-faith and objectively reasonable belief about the 

necessity of a guardianship. 

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4.	 Vernon has not satisfied his burden on appeal of showing that 

the superior court’s factual finding — that Peter did not initiate 

his petition maliciously, frivolously, or without just cause — was 

clearly erroneous. 

The superior court determined that “[t]he detailed evidence presented by 

[Peter] makes out a prima facie case that this action was not initiated maliciously, 

frivolously or without just cause.” The superior court noted that Peter “relied upon his 

own observations” of his father’s declining cognitive condition while in the hospital; that 

Peter also relied on the observations “of qualified medical personnel” [that is, the 

hospital’s psychiatric evaluation]; that the court had reviewed the video of the will 

execution and found Peter’s “characterization of the events in the video [indicating 

Vernon’s apparent cognitive impairment] as accurate”; and that Peter’s own observations 

of Vernon’s cognitive decline and Peter’s reliance on third-party observations available 

to him at the time were supported by the additional third-party observations found in 

Vernon’s medical records. The superior court also noted that Peter “has presented 

sufficient evidence to establish an objectively reasonable basis for his belief that 

Judith . . . was not adequately protecting [Vernon].” The superior court concluded that 

Vernon “has not presented sufficient evidence to the contrary” to persuade the superior 

court to find that Peter’s petition was malicious, frivolous, or without just cause. 

On appeal, Vernon must demonstrate that the superior court’s factual 

finding — that Peter’s guardianship proceeding was not initiated maliciously, 

frivolously, or without just cause — was clearly erroneous. 31 We conclude that he has 

not done this. 

In re McGregory, 193 P.3d at 300 (“How the State’s conduct should be 

characterized was a question of fact for the superior court, and its finding that the petition 

was not malicious, frivolous, or without just cause is not clearly erroneous.”). 

-17-	 6945 

31 
 

 

 

 

 

 

 

 

 

Ample record evidence supports the superior court’s findings, belying 

Vernon’s assertion that Peter “simply [had] no evidence on February 1, 2012, to establish 

that Vernon . . . needed a guardian.” First, evidence supports the superior court’s finding 

that Peter had a good-faith concern about his father’s mental capacity. Peter stated in an 

affidavit that he repeatedly observed his father in a state of apparent cognitive 

impairment during December 2011 and January 2012. His concerns about his father’s 

mental condition were supported by the hospital’s January 30, 2012 psychiatric 

evaluation,32 which he cited in his February 1 petition. Second, evidence supports the 

superior court’s finding that Peter’s belief was objectively reasonable, such as the 

hospital’s evaluation to which Peter had access as well as many contemporaneous 

observations of Vernon’s declining cognitive condition. And the court visitor’s 

32 Vernon argues that the hospital’s evaluation “did not even support 

incapacity, but does say that Vernon . . . is oriented, able to make his needs known, and 

that guardianship is not needed or recommended at this time.” This characterization is 

misleading. The report never disavowed the need for guardianship; that was a 

subsequent note added to the medical records. And a fair reading of the evaluation itself 

shows grave concerns about Vernon’s mental condition. Even if the report, standing on 

its own, was not sufficient to support an order imposing guardianship, it is certainly 

enough to generate a good-faith and objectively reasonable belief by Peter that there was 

a sufficient risk that Vernon needed a guardian to justify his initiation of guardianship 

proceedings. 

Vernon also argues that Peter “falsely characterized that consultation as a 

‘neuropsychological evaluation’ ” in his petition. But the document itself is titled 

“Psychiatric Consultation,” so Peter’s characterization hardly seems out of line. 

Finally, Vernon argues that Peter “secured” the hospital’s evaluation in 

violation of federal law. But the report indicates the psychiatric evaluation was 

generated by referral from one of Vernon’s physicians. Nothing in the record indicates 

that Peter played a role in “secur[ing]” the report. And even if he had initiated the 

hospital’s evaluation, we do not understand how that could help demonstrate that Peter’s 

reliance on the hospital’s evaluation could not be reasonable as a basis for his good-faith 

belief that his father needed a guardian. 

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preliminary report even stated that Peter initiated the petition “out of concern for 

[Vernon’s] medical well-being.” 

By contrast, Vernon identifies little, if any, evidence supporting his 

contention that the superior court clearly erred. Vernon claims on appeal that Peter’s 

intent was to gain control of assets, citing Peter’s petition. But Peter’s petition merely 

alleged that Vernon wanted Peter to help Vernon distribute some of Vernon’s assets. 

This view is bolstered by the court visitor’s preliminary report, which discusses an 

interview with Vernon in which Vernon said, “Peter is helping with investments.” 

Vernon further argues that even if there is no evidence of an improper 

motive, there are two reasons to conclude that Peter could not have had a proper motive 

because he knew that Vernon had no need of protective proceedings. 

First, he argues that Peter knew that Adult Protective Services had “closed 

its file on abuse claims against Vernon[’s] . . . primary care givers in January 2012 for 

lack of substantiation of abuse.” But nothing in the record indicates that Peter knew that 

the investigation had been closed. And nothing in the record indicates that the end of the 

investigation resulted from a conclusion that no guardian was needed. Further, the fact 

that claims of abuse are not substantiated in an initial investigation does not mean that 

a petitioner cannot have a good-faith and objectively reasonable concern about the need 

for a guardian. 

Second, Vernon argues that Peter sent emails to the family in December and 

January indicating his contemporary knowledge that Vernon was not cognitively 

impaired and was content with Judith’s and Jeannette’s help. But the fact that Peter saw 

his father on some of his good days and reported as much to the family does not 

undermine Peter’s observations of his father on his bad days. Vernon’s doctors noted 

his “fluctuating mental status” several times during January. Peter’s occasional 

observations of his father’s cognitive ability do not undermine Peter’s or others’ contrary 

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observations at other times, and does nothing to undermine Peter’s good-faith and 

reasonable concerns. They certainly do not compel us to conclude that the superior court 

clearly erred. 

Finally, Vernon argues that the superior court “should have considered” 

other pieces of evidence that allegedly tend to show that Peter acted maliciously, 

frivolously, or without just cause, such as affidavits supporting Vernon’s capacity filed 

with Vernon’s motion to dismiss, or Dr. Craig’s report. But those sources were available 

to Peter only after Peter initiated this action and thus are irrelevant to Vernon’s claim that 

Peter initiated his action maliciously, frivolously, or without just cause. And even if 

Peter had been aware of the information in those affidavits and in Dr. Craig’s report, the 

mere presence of countervailing evidence does not compel a conclusion that the superior 

court’s finding of good faith was clearly erroneous.33 

In sum, we conclude that Vernon has not met his burden of showing that 

the superior court clearly erred when it found that Peter did not initiate his petition for 

guardianship maliciously, frivolously, or without just cause and therefore could not 

receive attorney’s fees and costs under AS 13.26.131(d).34 

33 Appellants’ attorneys incorrectly characterize Dr. Craig’s report when they 

state that Dr. Craig found that Vernon “had full capacity at all times before, during and 

following the initiation of the proceeding.” Dr. Craig’s report concluded only that 

Vernon had capacity at the time of Dr. Craig’s evaluation. 

34 Peter also argues on appeal that Judith is ineligible to receive attorney’s fees 

or other costs under AS 13.26.131(d) because Vernon, rather than Judith, was the 

“respondent” in the protective proceedings. We do not reach this issue because we 

conclude that the standard for fee shifting under AS 13.26.131(d) has not been met. 

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B.	 The Superior Court Did Not Err By Concluding That AS 13.26.131(d) 

Entirely Displaces Alaska Civil Rule 82 In Guardianship And 

Conservatorship Proceedings.

 Two fee-shifting provisions are potentially applicable in this case: Alaska 

Rule of Civil Procedure 82 and AS 13.26.131(d). As discussed above, AS 13.26.131(d) 

provides for fee and cost shifting only where the petitioner initiated a protective 

proceeding that was malicious, frivolous, or without just cause. Civil Rule 82(a), by 

contrast, states: “Except as otherwise provided by law . . . , the prevailing party in a civil 

case shall be awarded attorney’s fees calculated under this rule.” Civil Rule 82 thus 

permits partial fee shifting as a matter of course.35 It also gives the superior court 

discretion to impose enhanced (or diminished) fee awards based on several factors, 

including “the reasonableness of the claims and defenses pursued by each side,” 

“vexatious or bad faith conduct,” and “other equitable factors deemed relevant.”36 

In deciding the applicability of Civil Rule 82 in this case, we are guided by 

two statutory commands. First, we have stated as a general proposition that “[i]f a 

specific statutory scheme for attorney’s fees exists, Civil Rule 82 does not apply” 

because fees would thus be “otherwise provided by law” within the meaning of Civil 

Rule 82(a).37 Second, Alaska Rule of Probate Procedure 1(e) provides that “[w]here no 

specific procedure is prescribed by these [Probate] rules, the court may proceed in any 

lawful manner, including application of the Civil . . . Rules,” but “[s]uch a procedure 

35 For example, in a case involving no claim for money judgment that is 

resolved without trial (such as the instant case), the prevailing party shall receive 

“20 percent of its actual attorney’s fees which were necessarily incurred.” Alaska R. 

Civ. P. 82(b)(2). 

36 Id. 82(b)(3)(F), (G), & (K). 

37 Enders v. Parker, 66 P.3d 11, 17 (Alaska 2003). 

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may not be inconsistent with these rules and may not unduly delay or otherwise interfere 

with the unique character and purpose of probate proceedings.” 

We first addressed the relationship between Civil Rule 82, 

AS 13.26.131(d), and Probate Rule 1(e) in In re Guardianship of McGregory.

38 In that 

case, the state initiated a petition for guardianship but later did not oppose a motion to 

dismiss after a social worker determined that the respondent was not in need of a 

guardian.39 Rather than move for attorney’s fees under AS 13.26.131(d), the respondent 

moved for fees pursuant to Civil Rule 82. 40 We held that routine awards of partial Civil 

Rule 82 fees as a matter of course to the prevailing party were not available because such 

routine fee shifting would “interfere with the unique character and purpose of 

guardianship proceedings” in violation of Probate Rule 1(e).41 We noted that 

AS 13.26.131 normally leaves enumerated costs with the state or respondent as outlined 

in the statute (unless shifted pursuant to AS 13.26.131(c) or (d)), making routine fee 

shifting to the prevailing party under Civil Rule 82 at odds with the more-specific 

statutory mandate of AS 13.26.131. 42 And we distinguished between typically selfinterested civil proceedings and beneficent guardianship proceedings, which “are not 

entirely adverse” and in which “application of [Civil] Rule 82 . . . could . . . deter the 

state from engaging in needed protective litigation.”43 

38 193 P.3d 295 (Alaska 2008).
 

39 Id. at 297.
 

40 Id.
 

41 Id. at 300. 

42 Id. at 299-300. 

43 Id. at 299 (quoting Wetherhorn v. Alaska Psychiatric Inst., 167 P.3d 701, 

(continued...) 

-22- 6945
 
 

 

 

 

 

 

 

But McGregory did not close the door entirely on applying Civil Rule 82 

in guardianship and conservatorship proceedings. We suggested that “to the extent that 

[Civil] Rule 82 permits an award of up to full reasonable attorney’s fees for vexatious 

or bad faith conduct or for cases that are malicious, frivolous, or brought without just 

cause, utilization of the rule does not interfere with the unique character of guardianship 

proceedings and in such circumstances the enhanced fee shifting contemplated by [Civil] 

Rule 82 could be considered to be authorized under Probate Rule 1(e) if AS 13.26.131(d) 

is inapplicable.”44 But this suggested role for Civil Rule 82 to provide enhanced fees 

where AS 13.26.131(d) was “inapplicable” was predicated on the stipulation by the 

parties in that case that AS 13.26.131(d) did not apply to the fees of privately retained 

counsel and experts.45 Addressing that legal issue on the merits for the first time, we 

hold that the fees and costs of privately retained counsel and experts may be shifted 

pursuant to AS 13.26.131(d).46 Thus, AS 13.26.131(d) applies in this case, as it does in 

every guardianship or conservatorship case. Accordingly, McGregory’s allowance for 

Civil Rule 82 fee enhancements where AS 13.26.131(d) is “inapplicable” describes an 

empty set. 

We hold that AS 13.26.131(d) forecloses any role for Civil Rule 82 in the 

guardianship and conservatorship context. Anything in McGregory that would leave a 

43(...continued) 

703-04 (Alaska 2007)). We expressly invoked analogous holdings about the 

inapplicability of routine Civil Rule 82 fee shifting in the child-in-need-of-aid and civilcommitment contexts. Id. at 298 (citing Wetherhorn, 167 P.3d at 703 (commitment); 

Cooper v. State, 638 P.2d 174, 178 (Alaska 1981) (child-in-need-of-aid)). 

44 Id. at 300 (footnotes omitted). 

45 Id. at 298 n.8. 

46 See supra section IV.A.1, text accompanying notes 26-30. 

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role for Civil Rule 82, based on an incorrect stipulation of law by the parties in that case, 

is abrogated. We reaffirm McGregory’s core conclusion: application of Civil Rule 82 

would “interfere with the unique character and purpose of guardianship proceedings” in 

violation of Probate Rule 1(e).47 We expand this core holding to foreclose all 

applications of Civil Rule 82, including for enhanced attorney’s fees. And we clarify 

that Civil Rule 82 is inapplicable in guardianship or conservatorship proceedings 

regardless of whether the state or a private party initiated the petition.48 

In sum, AS 13.26.131(d) entirely displaces Civil Rule 82 in guardianship 

and conservatorship proceedings, for two reasons. First, AS 13.26.131(d) is a specific 

statutory scheme that triggers Civil Rule 82(a)’s provision that Civil Rule 82 shall not 

apply when fee shifting is “otherwise provided by law.” Second, application of Civil 

Rule 82 would “interfere with the unique character and purpose” of guardianship and 

conservatorship proceedings and is thus impermissible under Probate Rule 1(e). 

Here, the superior court determined that it could not apply Civil Rule 82 in 

these guardianship and conservatorship proceedings. We affirm.49 

47 In re McGregory, 193 P.3d at 300. 

48 We noted in McGregory that the proceedings in that case were “initiated 

by the State” and “express[ed] no view as to whether the holding of this opinion should 

be extended to guardianship proceedings initiated by private parties.” Id. at 298 n.12 

(emphasis added). But the logic of McGregory applies equally well in both cases. 

Guardianship proceedings initiated by a private party are similarly beneficent and “not 

entirely adverse,” and “application of [Civil] Rule 82 . . . could . . . deter [private 

petitioners] from engaging in needed protective litigation” as much as it could deter 

beneficent state action. Id. at 299 (citation omitted). 

49 Because we conclude that Civil Rule 82 is inapplicable, we do not address 

Peter’s argument that Judith is not a party and is thus ineligible for an award of 

attorney’s fees under Civil Rule 82. Similarly, we do not address Vernon and Judith’s 

(continued...) 

-24- 6945
 
 

 

 

 

 

V. CONCLUSION 

For these reasons, we AFFIRM the superior court’s order denying Vernon’s 

and Judith’s motions for attorney’s fees and other costs. 

49(...continued) 

arguments that they satisfied the requirements for routine or enhanced fees under Civil 

Rule 82. 

Vernon and Judith also argue that the superior court erred by not 

considering the applicability of Civil Rule 82 for Peter’s conduct after the initiation of 

the proceedings. They reason that AS 13.26.131(d) focuses narrowly on the initiation 

of a petition but “has no application regarding the conduct of the parties or on the 

proceeding as a whole. This is where [Civil] Rule 82 applies.” Because they raised this 

argument for the first time in their reply brief, it is waived. Oels v. Anchorage Police 

Dep’t Emps. Ass’n, 279 P.3d 589, 598-99 (Alaska 2012). But even if this argument were 

properly before us, it would be unavailing on the merits. McGregory’s core logic, and 

today’s holding, forecloses the application of Civil Rule 82 in guardianship proceedings. 

-25- 6945