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In re Bidstrup

Filed: January 5, 1982.

IN THE MATTER OF: MARGUERITE B. BIDSTRUP


Appeal by respondent from Lewis, Judge. Judgment entered 7 November 1980 in Superior Court, Cherokee County. Heard in the Court of Appeals on 12 November 1981.

Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.

Hedrick

Respondent first argues the judge of the superior court erred in not affording him a trial de novo on the issue of who would be appointed the guardian of the incompetent's estate. He argues that the enactment of G.S. § 35016, et seq., providing for argues that the enactment of G.S. § 35-1.6, et seq., providing for

"Guardianship of Incompetent Adults" abrogated the well-settled principle that the appointment of guardians is within the sound discretion and exclusive original jurisdiction of the clerk of the superior court. We disagree. While G.S. § 35-1.20 does provide that appeals to the superior court from orders of the clerk shall be de novo and thence to the Court of Appeals, this statute must be read in pari materia with the remaining sections of the article and when so read, we hold that the right of a trial de novo on appeal from the orders of the clerk relates only to the adjudication of incompetency. G.S. §§ 35-1.28, -.29, which provide qualification guidelines for the appointment of guardians, essentially require only that the guardian be a resident of North Carolina and be, in the following order of priority, either an individual, a corporation, or a disinterested public agent. The clerk's appointment of a guardian for an incompetent's estate therefore involves a determination too routine to justify saddling a superior court judge with a review any more extensive than a review of the record. This assignment has no merit. See 39 Am. Jur. 2d Guardian and Ward § 27 (1968); 5 Am. Jur. 2d Appeal and Error § 772 (1962); In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967); Beck v. Beck, 36 N.C. App. 774, 245 S.E.2d 199 (1978); In re Simmons, 266 N.C. 702, 147 S.E.2d 231 (1966); In re Michal, 273 N.C. 504, 160 S.E.2d 495 (1968). See also Battle v. Vick, 15 N.C. 294 (1833) and Long v. Rhymes, 6 N.C. 122 (1812).

Respondent next assigns as error the superior "court's refusal to find that the Clerk of Superior Court had abused her discretion in appointing W. Arthur Hays as Guardian of the Estate of Respondent."

For a litigant to succeed in having a judgment reversed on the grounds that the issuance of such judgment constituted an abuse of discretion, the litigant must show that the challenged action is "manifestly unsupported by reason." Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980). In the present case, the evidence presented by respondent before the superior court judge tends to show only how Blanche Smith might have been a suitable candidate for guardian of respondent's estate; nowhere in the record, however, is there evidence tending to show that the clerk's appointment of W. Arthur Hays, Jr., was "manifestly unsupported by reason" or in any other way tainted by an error of law. In fact, respondent states in her own brief that she "does not

argue that W. Arthur Hays, Jr., is unfit or otherwise disqualified to serve as guardian. . . ." Respondent having failed to show an abuse of discretion or any error of law in the clerk's appointment, this assignment of error has no merit.

Affirmed.

Disposition

Affirmed.

19820105 ...


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