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South Carolina
Judicial Department
2007-UP-361 - Muckenfuss v. Muckenfuss


In The Court of Appeals

Wendell L. Muckenfuss, and Thomas D. Muckenfuss, III, Respondents,


Pauline T. Muckenfuss, an alleged incapacitated adult, Paul M. Muckenfuss, Sr., and Pauline J. O’Keefe, her next of kin, Defendants,

of whom Pauline J. O’Keefe is the Appellant.

Appeal From Charleston County
 J. C. Buddy Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2007-UP-361
Heard April 5, 2007 – Filed July 31, 2007


Dennis James Christensen, of Mt. Pleasant, for Appellant.

Nat B. Benson, Jr., of Mt. Pleasant, Sarah L. Clingman, of Columbia, for Respondents.

PER CURIAM:  Jane O’Keefe (Daughter) appeals the circuit court’s order affirming the probate court’s orders appointing third parties as Pauline Muckenfuss’s (Mother’s) guardian and conservator.  Daughter argues the probate court failed to make the necessary finding of good cause to bypass her statutorily-designated priority as Mother’s attorney-in-fact.  Because we find the probate court failed to make the requisite finding and the circuit court erred in affirming the probate court’s orders, we reverse and remand for proceedings consistent with this opinion.


Mother is a widow who lives at an assisted-living facility, the Savannah House in Charleston.  In addition to Daughter, Mother has three sons: Thomas (Tommy), Wendell, and Paul.  Daughter was designated as Mother’s power of attorney in October 2002.  Mother was admitted to the Savannah House in November 2002, following hospitalization for mental illness.

On January 29, 2004, Wendell and Tommy petitioned the probate court to find Mother incapacitated and to appoint a guardian and conservator.  The probate court conducted a hearing on September 15, 2004.  At trial, Dr. Susan Hardesty of the Medical University of South Carolina testified Mother needed a guardian and conservator.  Dr. Hardesty stated to a reasonable degree of medical certainty that Mother’s capacity did not allow her to manage her resources. 

The hearing also included testimony regarding the relationship between the children and the affect the friction between the siblings had on Mother.  Dr. Hardesty testified that Mother felt paranoid regarding her children’s roles.  Dr. Hardesty was not certain if having one of Mother’s children serve as a guardian or conservator would aggravate Mother’s condition because Mother’s reaction would be dependent on her paranoid ideation at the time.  Additionally, Dr. Hardesty stated any suggestions by Mother regarding who should be the guardian or conservator should not be given weight by the court. 

The guardian ad litem testified Mother was concerned over the conflict between her children.  The guardian believed a third party serving as guardian and conservator would be in the best interest of everyone given the infighting between Daughter and the sons.  The guardian believed a third party could circumvent current communication problems, but the animosity between Daughter and the sons will likely remain regardless of whether a third party is used.  The guardian testified he had no problem with the way Daughter provided care for Mother and handled Mother’s finances.

The friction between the siblings was illustrated by trial testimony.  Paul testified he had to call the police department to locate Mother after Mother moved to the Savannah House because no one informed him of the move.  Paul thought Daughter had done a good job providing for Mother; however, he believed having a third party involved in Mother’s care would be best for everyone.

Wendell also requested a third party’s involvement in order to reduce the infighting in the family and minimize Mother’s paranoia towards her children.  Regarding the friction, Wendell testified Daughter would not allow him to visit Mother privately on one occasion.  Wendell further testified Daughter’s husband followed Wendell to the airport and behaved suspiciously. 

According to Daughter, she gets along well with Tommy and Paul, but has difficulty with Wendell.  Daughter testified she did not tell her brothers she had power of attorney because Mother requested she not tell them.  Regarding Mother’s relocation to the Savannah House, Daughter explained she notified the oldest brother, Tommy, and assumed he would notify the other two brothers.  Over the three years prior to the hearing, Daughter testified she has spoken with or seen Paul and Tommy numerous times, but only contacted Wendell twice. 

In response to Wendell’s statement that Daughter refused to allow him to see Mother, Daughter stated she suggested Wendell not meet with Mother alone because Mother had not seen Wendell in years and it would be too shocking for Mother.  According to Daughter, while Wendell was speaking to Mother that day, a Savannah House employee informed Daughter that Mother’s whole body was shaking. 

The aforementioned Savannah House employee, Patty Daniel, testified she had no concerns over Daughter’s handling of Mother.  Daniel and Daughter both stated they believe the system in place prior to trial, with Daughter serving as attorney-in-fact, worked fine.  Daniel acknowledged that the only problem she saw under the system was Mother gets very agitated by Wendell’s phone conversations.  Daniel believed it is easier to deal with a family member than a third party. 

On October 19, 2004, the probate court ordered third parties Seniors Choice and First Southeast Fiduciary and Trust Services, Incorporated to serve as Mother’s guardian and conservator, respectively.  Daughter appealed the orders to the circuit court.  On May 23, 2006, the circuit court affirmed the probate court.  After a hearing, the circuit court held the probate court did not abuse its discretion in finding that Mother’s best interest would be served by appointing third parties as guardian and conservator.  This appeal followed.  


“[T]he determination of the standard of review by an appellate court of matters originating in the probate court is controlled by whether the cause of action is at law or in equity.”  Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct. App. 1993).  “To make this determination, the appellate court must look to the essential character of the cause of action alleged by the petitioners in the court below.”  Id.  “Persons of unsound mind, like infants, are under the special protection of the courts of equity with respect to their persons, property, and legal transactions.”  Shepard v. First Am. Mortgage Co., 289 S.C. 516, 518, 347 S.E.2d 118, 119 (Ct. App. 1986); see Dean, 313 S.C. at 259, 437 S.E.2d at 155 (finding petition to remove personal representative is in equity); Gaddy v. Douglass, 359 S.C. 329, 333, 597 S.E.2d 12, 14 (Ct. App. 2004) (recognizing an action to set aside a power of attorney and an instrument revoking a power of attorney on the ground of a lack of mental capacity sounds in equity).  If the probate proceeding is equitable in nature, an appellate court may make factual findings according to its own view of the preponderance of the evidence.  In re Howard, 315 S.C. 356, 362, 434 S.E.2d 254, 257-58 (1993).  Therefore, “[b]eing an equity case, the circuit court, sitting as an appellate court, had jurisdiction to make findings in accordance with its own view of the preponderance of the evidence.”  Eagles v. S.C. Nat’l Bank, 301 S.C. 402, 408, 392 S.E.2d 187, 191 (Ct. App. 1990).

The two-judge rule applies to appeals from the probate court to the circuit court.  Dean, 313 S.C. at 259-60, 437 S.E.2d at 155.  Pursuant to this rule, the standard of review in equity cases in which the circuit court concurs with the probate court is whether there is any evidence which reasonably supports the findings of the court below.  Id. at 260, 437 S.E.2d at 155-56.

The specific choice of who should serve as guardian and conservator is decided under the probate court’s discretion.  “The matter of a selection of a guardian is within the discretion of the court, and the appellate court ordinarily will not interfere unless a clear abuse of discretion is shown.”  39 C.J.S. Guardian and Ward § 28 (2003).  “Subject to statutory restrictions, the selection of a guardian is a matter committed largely to the discretion of the appointing court, whose decision will only be interfered with on appeal in the case of a clear abuse of discretion.”  39 Am. Jur. 2d Guardian and Ward § 40 (1999). 

The relevant statutes in this case, sections 62-5-311 and 62-5-410 of the South Carolina Code, indicate the appointing court has discretion by using the phrases “may be appointed guardian” and “the court may appoint . . . as conservator,” respectively.  The appointing court will not be overturned absent an abuse of discretion.  See Patterson v. Cook, 288 S.C. 220, 221, 341 S.E.2d 782, 782 (1986) (interpreting an appointment statute without priority guidelines). 


Daughter argues the probate court, and in turn the circuit court, erred by failing to make a finding of good cause when appointing third parties as Mother’s guardian and conservator because Daughter had statutory priority as Mother’s attorney-in-fact.  We agree.

Section 62-5-311 of the South Carolina Code provides the order of priority for guardian appointees, stating:

(A) Any competent person or a suitable institution may be appointed guardian of an incapacitated person.

(B) Subject to a finding of good cause by the court, persons who are not disqualified have priority for appointment as guardian in the following order:

. . .

(2) an attorney in fact appointed by the incapacitated person pursuant to Section 62-5-501, whose authority includes powers relating to the person of the incapacitated person;

S.C. Code Ann. § 62-5-311 (Supp. 2006)(emphasis added).

Section 62-5-410 of the South Carolina Code provides the order of priority for conservator appointees, stating:

(a) The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:

. . .

(3) an attorney in fact appointed by such protected person pursuant to § 62- 5-501;

. . .

(b) . . .  The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.

S.C. Code Ann. 62-5-410 (1987 & Supp. 2006)(emphasis added).

Good cause is defined as “[a] legally sufficient reason.  Good cause is often the burden placed on the litigant . . . to show why a request should be granted or excused.”  Black’s Law Dictionary 235 (8th ed. 2004). 

Based on the language of the applicable statutes, we believe before a probate court bypasses a person with a statutory priority for the appointment of a conservator or guardian, it must make a finding of good cause by articulating its reasons for such a finding.   See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (If a statute’s language is plain, unambiguous, and conveys a clear meaning, then “the rules of statutory interpretation are not needed and the court has no right to impose another meaning.”); McClanahan v. Richland County Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002)(“All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used.”); cf. Aycock v. Aycock, 284 S.C. 193, 195, 324 S.E.2d 650, 651 (Ct. App. 1984) (reversing award of unallocated alimony and support to wife, who had custody of children, where family court’s order gave no cause or reason for award where applicable statute required that “if an award of unallocated alimony and support payments is to be made, there must first be a finding of fact that there is good cause to make this award rather than allocated awards”).

In the instant case, the probate court passed over Daughter’s statutory priority without a specific finding of good cause in the orders appointing a third-party guardian and a third-party conservator.  In its orders, the probate court acknowledged that Mother had executed a durable power of attorney in favor of Daughter.  Without explanation the court cancelled Daughter’s power of attorney and found that it was “necessary and desirable” to appoint a third-party guardian and conservator.

From all indications in the record, Daughter had taken good care of Mother.  Although the probate court indicated in its order that Mother wanted a third party appointed because of the friction between her children, the evidence includes testimony of Dr. Hardesty that any suggestions by Mother regarding who should serve as her guardian and conservator should be given limited weight if any.  Admittedly, the record does include testimony of friction between the siblings; however, the probate court’s mere acknowledgment of the family’s divisiveness does not qualify as a finding of good cause.[1] 

As pointed out in the circuit court’s order, the probate court was undoubtedly cognizant of the statutory priorities.  The probate court, nevertheless, did not comply with the requirements of the statutes in bypassing Daughter without articulating its reasons why a third party would better serve as a guardian and conservator.  Because the probate court failed to make the requisite finding of good cause, we remand this case to the probate court for a finding consistent with sections 62-5-311 and 62-5-410.  See Act No. 483, 1990 S.C. Acts 2152 (amending section 62-5-311 to require a finding of good cause and stating “relating to guardians, so as to provide for additional persons who may be appointed as guardian subject to a finding of good cause instead of the court’s discretion”); 21 S.C. Jur. Guardian and Conservator § 15 (1993 & Supp. 2006) (“Absent a contrary finding of good cause by the court, competent persons qualified to serve as guardians must be selected” pursuant to the prioritized list of qualified persons under sections 62-5-311 and 62-5-410.).  On remand, the probate court should make specific findings based on the current record and should not consider additional testimony or evidence.

Accordingly, the decision of the circuit court is


HUFF, BEATTY, and WILLIAMS, JJ., concur.

[1]   At oral argument, the parties urged this court to definitively rule on whether friction or dissension between family members is sufficient to constitute good cause to bypass a person with a statutory priority.  In light of the probate court’s failure to make a specific finding regarding good cause, we do not believe this case presents the appropriate factual circumstances for this court to make that determination.  Therefore, we decline to rule on that issue.

[2]   In reaching our decision, we have considered the case law from other jurisdictions that was submitted by the parties.  We, however, conclude that the statutes and appellate decisions from this state provide a sufficient basis for our decision.