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03/10/95 JACKIE R. MCCALLIE v. RUTH C. MCCALLIE

March 10, 1995

JACKIE R. MCCALLIE
v.
RUTH C. MCCALLIE, AN ALLEGED INCOMPETENT PERSON



Appeal from Etowah Probate Court. (CV-F-15327-92). Bobby M. Junkins, TRIAL JUDGE.

Rehearing Denied April 28, 1995. Released for Publication October 2, 1995.

Houston, Shores and Ingram, JJ., concur. Almon and Butts, JJ., concur in the result.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

Jackie R. McCallie filed a petition in the Probate Court of Etowah County, pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act, Ala. Code 1975, § 26-2A-1 et seq., seeking to be appointed as conservator of the estate of his mother, Ruth C. McCallie. Jackie's brother, David M. McCallie, acting under the authority of a durable power of attorney executed by his mother, filed a motion to dismiss the petition on the ground that he was qualified and competent to manage his mother's personal affairs and, therefore, that the appointment of his brother as conservator was unnecessary. After an ore tenus hearing, during which Jackie and David stipulated that their mother was unable to manage her personal affairs, the probate court entered an order dismissing Jackie's petition and requiring him to pay David's attorney fee in the amount of $450. Jackie appealed. We affirm in part, reverse in part, and remand.

Because there is no record of the testimony presented to the probate court, the probate court's apparent finding that David is qualified and competent to manage his mother's personal affairs is presumed to be correct. See Davis v. Davis, 278 Ala. 328, 330, 178 So. 2d 154, 155 (1965):

"The rule is that where no testimony is contained in the record on appeal, a decree which recites that it was granted on pleadings, proofs and testimony will not be disturbed on appeal. Williams v. Clark, 263 Ala. 228, 82 So. 2d 295 [(1955)], 2 Ala.Dig., Appeal & Error § 671(3). And it will be presumed that the evidence was sufficient to sustain the verdict, finding, judgment, or decree where all the evidence is not in the record. Williams v. Clark, supra; 2 Ala. Dig., Appeal & Error Key No. 907(4).

"A decree of the probate court will not be reversed if the evidence upon which it is made is not set forth, and there is no bill of exceptions, unless it appears in the decree that the court had no jurisdiction. Forrester v. Forrester's Adm'rs, 40 Ala. 557 [(1867)]; McAlpine v. Carre, 203 Ala. 468, 83 So. 477 [(1919)]....

"The finding of the probate court, based on the examination of witnesses ore tenus, is presumed to be correct and will not be disturbed on appeal unless palpably erroneous. Cox v. Logan, 262 Ala. 11, 76 So. 2d 169 [(1954)], and cases there cited.

"We assume that the circuit court affirmed the decree of the probate court on the principles we have stated [above], and we have no alternative but to affirm the decree of the circuit court on the same authorities." *fn1

Jackie contends, however, that the probate court had no statutory authority to dismiss his petition after he and his brother had stipulated to their mother's lack of capacity. He also contends that his mother was not present at the hearing; that a guardian ad litem was not appointed to represent his mother; and that his mother was not examined by a physician or other qualified person designated by the court. These alleged procedural defects, according to Jackie, require the reinstatement of his petition. Jackie also argues that there was no basis for an award of attorney fees.

Section 26-2A-31 provides that a probate court has "full power to make orders, judgments, and decrees and [to] take all other action necessary and proper to administer Justice in the matters [relating to estates of protected persons and protection of minors and incapacitated persons] that come before it." Section 26-2A-135 provides in pertinent part:

"(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for [a] hearing. Unless the person to be protected has chosen counsel, the court shall appoint an attorney to represent the person who may be granted the powers and duties of a guardian ad litem. If the alleged disability is mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, or chronic intoxication, the court must direct that the person to be protected be examined by a physician or other qualified person designated by the court, preferably one who is not connected with any institution in which the person is a ...


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