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### FILED MARCH 

### 23, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter ofthe Guardianship of PAULAA. FOWLER.

PAULAA. FLOWERand JOSEPH VALENTE, Respondents, 

### v. LIN O'DELL, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 

### No. 32979-8-111



### UNPUBLISHED OPINION

PENNELL, J. -LinO'Dell served as PaulaFowler's limited guardian. Ms. O'Dell appeals the superior court's findings offact, conclusions oflaw, arid order on show cause that found Ms. O'Dellviolated several statutes and standards ofpractice and orderedher to (1) 

### pay investigative fees, and (2) 

### disgorge excessive service fees of$2,591.50. 

### Ms. O'Dell appeals, arguing the superior court's orderviolatedher due process rights. We affirm.I 

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# l f No. 32979-8-111 

### In re Guardianship of Fowler 

### FACTS In 2007, 

### Ms. O'Dellwas appointed as limited guardian ofMs. Fowler and her estate. In 2013, 

### at a hearing to consider the guardian's proposed annual report, accounting and budget, the court noted concerns with Ms. O'Dell'sperformance. The court subsequently entered an order to show cause, detailing 13 

### suspected violations of fiduciary duties, standards ofpractice, and state statutes. The orderrequired Ms. O'Dell to respond and provide the court with additional information. Ms. O'Dell timely responded, providing the court with what it characterized as "voluminous material." Report ofProceedings (RP) (Dec. 31, 2013) 

### at 7, 12; 

### Clerk's Papers (CP) at 277. 

### Upon receiving Ms. O'Dell's submission, the court appointed Joseph Valente as investigator and special master to review the matter and answer specified questions. Mr. Valente reviewed the guardianship file, including Ms. O'Dell'srecent submission ofmaterials and declarations from Ms. O'Dell and Ms. Fowler. He also followed up directly with Ms. O'Dell for additional information. 

### Mr. Valente then filed a comprehensive report in response to the court's order. His report did not agree with all the allegations set forth in the show cause order. However, the report did include several findings that were critical ofMs. O'Dell. Mr. Valente recognized that serving as Ms. Fowler's guardian had "been a nightmare for [Ms. O'Dell]." CP at 363. 

### Fortunately, Mr.
2No. 32979-8-111 

### In re Guardianship of Fowler
Valente concluded Ms. O'Dell's violations ofstatutes and standards ofpractice had "no direct impact" on Ms. Fowler, outside the imposition ofsome excessive fees. 

### Id. Ms. O'Dell filed a written response to Mr. Valente's report, disputing his findings. OnMarch4, 2014, the courtheld a reviewhearing at which Ms. O'Dell, Mr. Valente, and Ms. Fowler addressedthe court. Atno time priorto or during the hearing did Ms. O'Dell request an evidentiary hearing. At some point after the hearing, the court issuedproposed findings offact and conclusions oflaw. 1 Ms. O'Dell then filed a detailed written objection claiming, among otherthings, that the court's procedure violated due process because no witnesses were called and there had notbeen opportunity for cross-examination. Shortly after receiving Ms. O'Dell's objection, the court held a presentment hearing. Ms. O'Dell, Mr. Valente, and Ms. Fowler all addressedthe court. During her remarks, Ms. O'Dell criticized the court'sprocedures and claimed she had notbeen given
a sufficient opportunity to respond to Mr. Valente's report. The court disagreed with Ms. O'Dell'sprocedural concerns, though it noted the court bore someresponsibility for failing to promptly "raise specific issues" in the guardianship. RP (Nov. 20, 2014) at 46.

1Therecord on appeal does not include the court'sproposed findings orthe date ofits submissionto the parties. 3'.I No. 32979-8-III 

### In re Guardianship of Fowler Ultimately the court entered final written findings and conclusions which were consistent with the recommendations in Mr. Valente's report. The court ordered (1) Ms. O'Dellpay $3,000.00 to Mr. Valente for his services as investigator and special master, (2) Ms. O'Dell disgorge to the guardianship estate $2,591.50, and (3) dismissal ofthe Washington limited guardianship. Ms. O'Dell appeals. ANALYSIS Ms. O'Dell contends the superior court erred by failing to hold an evidentiary hearing to resolve disputed issues offact she established in her declaration and in response to the show cause order. According to Ms. O'Dell, the court essentially employed a summaryjudgmentprocedure to rule against her without following CR 56(c). We review the superior court's disposition for abuse ofdiscretion. 

### In re Guardianship of Cornelius, 181 Wn. App. 513,528,326 P.3d 718 (2014). No statute or courtrule requires a trial or evidentiaryhearingpriorto termination ofa guardianship. Both RCW 11.88.120(1) and the former RCW 11.88.120(1) and (4) (1991)provide that a court, for good reason, may modify orterminate a guardianship and grant relief"as it deemsjustand in the best interest ofthe incapacitatedperson." Supplementing this, the legislature has given courts "full and ample power and authority
4

### No. 32979-8-III In re Guardianship of Fowler



### ... to administer and settle
... [ a]ll matters concerning the estates and assets of incapacitated
...persons." RCW l l.96A.020(l)(a); seeIn re Guardianship of McKean, 

### 136 Wn. App. 906, 913-14, 151 P.3d 223 (2007). RCW 1l.96A.020(2) grants the court "full power and authority to proceed
... in any manner and way that to the court seems right andproper." Perhaps recognizing the lack ofstatutory support, Ms. O'Dell couches her argument in terms ofdue process. She claims the fundamental principles ofdue process required the courtto hold an evidentiary hearing priorto terminating the guardianship and imposing approximately $5,000 in costs and fees. We do not dispute thatMs. O'Dellwas entitled to due process priorto imposition ofthe superior court's final order. However, due process is a flexible concept that does not demand a strict set ofprocedures in every situation. Mathews v. Eldridge, 

### 424 U.S. 319,334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). To comport with due process, a courtprocedure mustprovide notice and a meaningful opportunity to be heard. Morrison v. Dep 't of Labor &Indus., 

### 168 Wn. App. 269, 273, 277 P.3d 675 (2012). No due process violation occurredhere. Priorto issuance ofthe final order, the courtprovided Ms. O'Dell with detailed written notice ofits concerns. Not only did Ms. O'Dell receive notice in the form ofthe superior court's initial orderto show cause, she


### 5No. 32979-8-III 

### In re Guardianship of Fowler
also received the more comprehensive report by Mr. Valente. Ms. O'Dell was given ample opportunityto respond to both documents. She submitted a lengthy written response to the orderto show cause and also responded in writing to Mr. Valente's report. Afterthe show cause and review hearings, Ms. O'Dell filed a written objection to the court'sproposed findings. She addressed the court orally during hearings held before each ofthe court's orders. At no point during this process did Ms. O'Dell request an evidentiary hearing.2 We are unmoved byMs. O'Dell's complaintthat the superior court improperly considered unswom testimony thathad not been subject to cross-examination. With the exception ofthe declaration from Ms. Fowler,3 the only factual information considered by the court came from Ms. O'Dell. Mr. Valente was not a witness. His review was limited to existing courtrecords and information supplied by Ms. O'Dell. The accuracy and reliability ofthe hearings would not have been enhanced by requiring Mr. Valente to presenthis findings as a witness, subject to cross-examination.

2 Ms. O'Dell first raised her concerns regarding the court'sprocedures in her objection to the court'sproposed findings. However, even at that late date Ms. O'Dell neverrequested an evidentiary hearing. 3 Ms. Fowler's declaration is referenced in Mr. Valente's report, but it does not appear to be part ofthe record on appeal. In any event, Ms. O'Dell's claims on appeal pertain to the superior court's reliance onMr. Valente's report, not Ms. Fowler's declaration. 6No. 32979-8-111 

### In re Guardianship of Fowler
Becausetheprocedure utilized bythe superior court comported with due process,
we affirm the orderterminating Ms. Fowler's guardianship and requiring disgorgement of excessive service fees. Ms. O'Dell separately appeals theprovision ofcourt's order requiring payment ofMr. Valente's fees. Her arguments rest entirely onher due process claims regarding the perceived need for an evidentiary hearing. Because we disagree with Ms. O'Dell'sposition, her argument regarding fees is rejected as well. APPELLATE ATTORNEY FEES Mr. Valente asks this courtto award attorney fees, citing to RCW 11.96A.150, which permits us to award attorney fees "in such amount and in suchmanner as the court determines to be equitable." We respectfully decline this request. While the court appreciates Mr. Valente's assistance throughout this case, his participation on appeal was largely a result ofhis own volition, in orderto securepayment ofthe fees awarded by the superior court. 

### See Commissioner's Ruling, 

### In re Guardianship of Fowler, No. 32979-8- 111 (Wash. Ct. App. Apr. 2, 2015). That goal has been accomplished. Meanwhile, at least
some equities weigh in Ms. O'Dell's favor, including the significant financial obligations imposed by the superior court as well as the difficulties encounteredbyMs. O'Dell in working onMs. Fowler's case. The court declines to impose further financial burdens on Ms. O'Dell in the form ofattorney fees.
7No. 32979-8-111 

### In re Guardianship of Fowler
CONCLUSION The orders ofthe superior court are affirmed, and Mr. Valente's request for appellate fees is denied. A majority ofthepanel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR: 

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