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In Re Guardianship of Mary Louise Eaton

March 16, 2012

IN RE GUARDIANSHIP OF MARY LOUISE EATON


The opinion of the court was delivered by: Conboy, J.

Cheshire County Probate Court

Submitted: November 16, 2011

The petitioner, Daniel Eaton, appeals the denial of his motion for payment of legal fees, arguing that the Cheshire County Probate Court (Hampe, J.) erred in finding that the imposition of a guardianship does not require the proposed ward to pay a good-faith petitioner's attorney's fees pursuant to RSA 464-A:43 (2004). We affirm.

The pertinent facts are drawn from the record. In March 2010, Dean Eaton (Dean), the petitioner's brother, filed a petition for guardianship over their mother, Mary Louise Eaton. The petitioner objected to Dean's petition and filed his own petition. In June 2010, in a written settlement agreement, the petitioner and Dean agreed that their brother, Michael Eaton, the respondent, would be appointed guardian. Shortly thereafter, the trial court found Mrs. Eaton incapacitated and appointed the respondent guardian over her person and estate.

Thereafter, the petitioner asked the court, pursuant to RSA 464-A:43, to order the respondent, as guardian of Mrs. Eaton's estate, to pay the attorney's fees he incurred during the proceedings. The respondent objected.

The trial court denied the petitioner's motion, reasoning that under RSA 464-A:43, I, the statute providing for payment of guardianship costs, "the phrase 'fees for the counsel' refers to the counsel for the proposed ward," and not to the counsel for the petitioner. The court further found that no other justification existed to require payment of the petitioner's attorney's fees from the ward's estate. This appeal followed.

"An award of attorney's fees must be grounded upon statutory authorization, an agreement between the parties, or an established exception to the rule that each party is responsible for paying his or her own counsel fees." Merrimack School Dist. v. Nat'l School Bus Serv., 140 N.H. 9, 14 (1995) (quotation and ellipsis omitted). Here, the petitioner asserts entitlement to an award of attorney's fees pursuant to RSA 464-A:43.

We review the trial court's statutory interpretation de novo. State v. Bernard, 158 N.H. 43, 44 (2008). In matters of statutory interpretation, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. Further, we interpret a statute in the context of the overall scheme and not in isolation. Id. We do not consider legislative history to construe a statute that is clear on its face. Id.

RSA 464-A:43 provides in full:

The costs incurred by the imposition of a guardianship or conservatorship pursuant to the procedures established in this chapter shall be distributed in the following manner:

I. Except in cases in which the petitioner filed the petition in bad faith, the court costs and fees for the counsel and resource person shall be borne by the proposed ward. In cases in which the petitioner acted in bad faith, he or she shall bear all costs of the proceeding.

II. If the proposed ward is indigent, the costs and fees of the proceeding shall be borne by the state.

III. The costs incurred in the petition for a conservatorship shall be paid by the ...


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