Parker v. Barefoot , 61 N.C. App. 232 ( 1983 )

HEDRICK, Judge.

The respondent sets forth three assignments of error on appeal. First, he contends that the Superior Court erred in failing to state findings of fact in its order. Under Rule 52(a)(1) of the North Carolina Rules of Civil Procedure, a judge is required to state findings of fact “[i]n all actions tried upon the facts. . . .” However, in the present case the Superior Court judge was not trying the action upon the facts; instead, the Superior Court judge had only derivative jurisdiction to hear questions of law. In Re Simmons, 266 N.C. 702, 147 S.E. 2d 231 (1966). The judge of Superior Court was not required to state findings of fact because he was bound by the clerk of Superior Court’s findings.

The respondent next contends there were no findings of fact in the clerk’s order to support the judge’s conclusion of law that respondent be removed as co-guardian. While we recognize that much of that portion of the clerk’s order designated as “findings of fact” is nothing more than a recital of the evidence and contentions of other children and grandchildren, and that many of the clerk’s “findings of fact” are irrelevant to the issue raised by the pleadings and evidence, we are of the opinion that the clerk’s order does contain sufficient legitimate findings of fact to support the judge’s conclusion that the respondent had wasted or converted the estate or money of the ward to his own use, in violation of N.C. Gen. Stat. § 33-9(1). The findings of fact indicate respondent rented land from his incompetent mother for less than fair market value. Respondent profited from this rental at the expense of the incompetent. Respondent rented the incompetent’s land privately and without showing it would serve the best interests of his ward to do so, in violation of N.C. Gen. Stat. § 33-21. Finally, respondent refused to agree with his co-guardian, the petitioner, to raise the rent to fair market value. Apparently, the respondent also lived rent-free in a home in which the incompetent had a life estate. These findings of fact by the clerk demonstrate that respondent violated his fiduciary duty and should have been removed as co-guardian pursuant to N.C. Gen. Stat. § 33-9(1), which states:

The clerks of the superior court have power and authority on information or complaint made to remove any fiduciaries appointed under the provisions of this Chapter . . . and it is their duty to do so in the following cases:

(1) Where the fiduciary wastes or converts the money or the estate of the ward to his own use.

The respondent’s last assignment of error is that the Superior Court judge did not limit himself to reviewing questions of law. However, the judge’s order states that it is based on the clerk’s findings of fact, and that the clerk’s error was one of law. Since the clerk’s findings of fact squarely support the Superior Court judge’s conclusion of law, it is clear the judge did not make new findings of fact but ruled only on matters of law.

Since, as we have already seen, the Superior Court judge’s jurisdiction in this matter is derivative only, In Re Simmons, 266 N.C. 702, 147 S.E. 2d 231 (1966), we hold the judge’s order removing the co-guardian must be reversed, and the cause must be remanded by the Superior Court to the clerk for an order removing the co-guardian. We affirm that portion of the order of the judge of Superior Court which declares that the findings made by the clerk require the removal of the co-guardian pursuant to N.C. Gen. Stat. § 33-9(1).

Affirmed in part, reversed and remanded with instructions in part.

Judges Whichard and Braswell concur.