Where the probate court did not collect fees at the time the petitioner filed guardianship and conservatorship petitions, the probate court had jurisdiction to order the payment of those fees at the end of the proceedings, the Michigan Court of Appeals has ruled.

The petitioner in In re Guardianship and Conservatorship of Pobanz (Docket No. 356546) argued, among other things, that the Huron County Probate Court lacked jurisdiction to collect the filing fees because it failed to require the fees when he filed the petitions.

The Court of Appeals disagreed.

“Under MCR 5.101(B), a probate court proceeding is commenced ‘by filing an application or a petition with the court,’” the Court of Appeals said. “Filing fees are not required to commence a probate court proceeding. The payment of the filing fees is not a jurisdictional requirement for probate cases. Therefore, the probate court had jurisdiction over this case.”

The Court of Appeals also held in its 11-page unpublished opinion:

• the probate court did not err by postponing the collection of fees.

• the probate did not err by ordering the petitioner to pay the fees.

• the petitioner’s due process rights were not violated.

• the probate court wrongly found that the petitioner had to pay guardian ad litem (GAL) fees.

Court of Appeals Judges Michelle M. Rick, Amy Ronayne Krause and Anica Letica were on the panel that issued decision. Judge Letica wrote a separate concurrence, emphasizing her agreement that the petitioner “owed the fees, including the accounting fee, which the court properly ordered him to pay after he had an opportunity to be heard.”

Background

The petitioner filed guardianship and conservatorship petitions for his father, Larry Pobanz, with the Huron County Probate Court. The petitions stated that Larry suffered a stroke, could not move his right arm or leg, and could not speak. The conservatorship petition asserted that Larry could not enter rehab without certain paperwork, which could not be completed by the petitioner without a court order. Thereafter, Probate Judge David B. Herrington signed two orders granting the petitioner temporary conservatorship and guardianship of Larry.

In November 2019, Probate Judge David L. Clabuesch entered an order appointing a GAL for Larry. The GAL filed a written report stating that he tried, but was unable, to communicate with Larry. The GAL recommended that both petitions be granted. On December 3, 2019, the probate court held a hearing on the petitions. Judge Clabuesch entered orders appointing the petitioner as conservator and guardian of Larry. The judge also entered an order for the Huron County Probate Court to pay the GAL $234 for his services.

The probate court reportedly sent the petitioner a statement in November 2020 indicating that Larry owed the following: 1) $150 in filing fees and $25 for electronic filing fees for the guardianship, 2) $150 in filing fees and $25 for electronic filing fees for the conservatorship and 3) $234 to reimburse the court for the fees it paid the GAL. The petitioner subsequently filed an account for the conservatorship and asserted the court clerk did not collect the $20 filing fee for the filing of the account.

On February 18, 2021, the probate court held a sua sponte hearing. At the hearing, the petitioner argued the probate court did not have jurisdiction to order the fees be paid because it did not collect the fees when he filed the petitions. The probate court, however, told the petitioner that it had a longstanding policy of waiting to collect guardianship and conservator fees. The petitioner also maintained that he did not agree to pay the GAL fees, which the probate court had determined were fair and reasonable. The petitioner argued the GAL was required to comply with MCL 700.3505(1) and that, because the GAL did not comply with statutory requirements, the probate court could not compensate the GAL. The probate court asked the GAL if it was his practice to ask wards in Larry’s condition about their assets and the GAL responded: “Not at all, your Honor. My main concern is to find out what their level of competency is and then if they are able to talk to find out what the wishes are about whether they want to have a guardian and conservator. And if they do, who they want it to be. I couldn’t get to any of those levels with [Larry] at that time.”

Accordingly, the probate court ordered that the petitioner pay $604 in fees.

Proper Jurisdiction

On appeal, the petitioner first argued the probate court did not have jurisdiction because it did not collect the fees for the conservatorship or guardianship at the time of filing.

The Court of Appeals disagreed, noting the petitioner “has not provided any authority that supports his argument that the probate court’s failure to collect the filing fees deprived it of jurisdiction. Because petitioner has failed to adequately brief this issue, it is abandoned.”

Moreover, the petitioner’s argument “is meritless,” the Court of Appeals said, emphasizing that Larry resided in Michigan. “Therefore, the probate court had personal jurisdiction over Larry under MCL 700.5301b(1)(a) and MCL 700.5402(1)(a).”

The probate court also had subject-matter jurisdiction, the Court of Appeals explained. “Because this case involved a guardianship and conservatorship proceeding, the probate court had exclusive legal and equitable jurisdiction under MCL 700.1302(c).”

The probate court was not divested of jurisdiction because the filing fees were not paid when the petitions were filed, the Court of Appeals said. According to MCR 5.101(B), a probate court proceeding is commenced “by filing an application or a petition with the court,” the appeals court observed.

The payment of filing fees is not required to initiate a probate court proceeding, the Court of Appeals concluded. Therefore, because the payment of filing fees is not a jurisdictional requirement for probate cases, the probate court had jurisdiction over this case.

Filing & Account Fees 

Next, the petitioner asserted the probate court erred by 1) failing to collect the filing fees when he filed the petitions and 2) requiring that Larry pay the filing and account fees.

The Court of Appeals disagreed. The petitioner “has not provided any authority to support his argument that the trial court did not have the authority to waive the filing fees until November 2020,” the appeals court said. “Petitioner cites only Manning v. Amerman, 229 Mich App 608 (1998)] ... for the proposition that the probate court ‘is a court of limited jurisdiction, deriving all of its power from statutes.’ The Manning Court discussed the difference between the jurisdiction of circuit courts, which are courts of general jurisdiction, and probate courts, which derive their jurisdiction from statutes. … It did not discuss a probate court’s ability to waive filing fees. … Because petitioner has failed to adequately brief this issue, it is abandoned.”

Further, “MCL 600.880(1) and MCL 600.880a(1) imposes the burden of payment on the commencing party and the statutes do not clearly state that payment is required to commence a case,” the Court of Appeals explained. “Nonetheless, … the probate court had jurisdiction to hear the case regardless of whether it collected the fees under MCL 600.880(1) and MCL 600.880a(1). Further, there is no statute or court rule that prohibits a probate court from waiving or postponing the payment of a filing fee. Under MCL 600.880(1), MCL 600.880a(1), MCL 600.1986, and MCR 5.101(B), petitioner was required to pay the filing and electronic filing system fees for the guardianship and conservatorship when he filed the petitions on November 6, 2019. However, MCL 600.880d provides, ‘A judge of probate shall order that the payment of any fee required under this chapter be waived or suspended, in whole or in part, upon a showing by affidavit of indigency or inability to pay.’ It does not state that the probate court may only waive or suspend a fee if an individual is unable to pay, and it does not prohibit the probate court from waiving or suspending the fee in other circumstances. Similarly, MCR 2.002 discusses the requirements for an individual to request waiver of fees on the basis of indigency, but it does not include any provision prohibiting a court from waiving fees sua sponte.”

Based on the foregoing, the probate court “did not err by postponing the collection of the filing fees until November 2020,” the Court of Appeals held.

The Court of Appeals also rejected the petitioner’s claim that the probate court erred by requiring Larry to pay the fees.

GAL Fees & Due Process Claims 

The petitioner further contended the probate court wrongly ordered that the GAL fees be paid because the GAL did not comply with MCL 700.5305(1)(g) or MCL 700.5305(1)(h)(i)(B).

“We agree,” the Court of Appeals said. “Although the GAL stated that he performed the duties required by statute in his written report, there is evidence that the GAL failed to ask Larry or petitioner about Larry’s assets. Further, the GAL did not provide that information in his written report. At the motion hearing, the GAL told the trial court that he was not able to communicate with Larry when he interviewed Larry, and that it was not his practice to inquire about the assets of wards when they were in Larry’s condition. Further, petitioner asserted that the GAL never asked him about Larry’s assets, as required by MCL 700.5305(1)(g). The GAL admitted to the trial court that he had ‘no idea about their financial situation’ and had ‘no clue’ what Larry’s assets were. Because the GAL failed to fully comply with MCL 700.5305(1), the trial court should not have ordered compensation.”

Moreover, the probate court erred by ordering the petitioner to pay the GAL fees “because it had already compensated the GAL,” the Court of Appeals observed. “Under MCL 700.5413, ‘[i]f not otherwise compensated for services rendered, a … guardian ad litem … appointed in a protective proceeding, is entitled to reasonable compensation from the estate.’ … Because the trial court ordered the Huron County Probate Court to pay $234 for the GAL’s services, the GAL was not entitled to reasonable compensation from Larry’s estate.”

The Court of Appeals also rejected the petitioner’s due process claims. Specifically, the petitioner argued the probate court did not give him notice that it was attempting to collect the fees or notice that it would be attempting to collect those fees in the sua sponte motion hearing that it held. However, the probate court “was not required to specifically identify all the issues it was going to address at the motion hearing,” the Court of Appeals said. “Instead, notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ … The record indicates that petitioner knew that the trial court intended to address the fees at the hearing. … [T]he [probate] court provided petitioner a notice for a hearing for petitioner to air his grievances. The [probate] court did not violate petitioner’s due-process rights because he had notice that the … court would address the fees and he was given the opportunity to be heard at the motion hearing.”

Accordingly, “[w]e reverse the portion of the probate court’s order requiring payment of the GAL fees,” the Court of Appeals held. “In all other respects, we affirm.”