County faces six-figure legal bill in ongoing guardian case

Supreme Court refuses to hear arguments but appeals continue in court battle overseen by Voiland
By 
DAN BENSON
Ozaukee Press staff

A battle between Ozaukee County and the son of an elderly woman over who should be her guardian continues with appeals over mounting attorney fees and whether the case should be transferred to a judge other than Joseph W. Voiland.

According to online court records, Ozaukee Corporation Counsel Rhonda Gordon has filed motions in the case regarding the award of costs, Voiland’s substitution and a request that Voiland’s orders in the case be stayed while she appeals them.

The county Executive Committee met recently in closed session to get an update on the case from Gordon and to discuss strategy. The committee has scheduled another closed session on Monday for further updates.

At a Finance Committee meeting last week, Supr. Justin Strom questioned Assistant Corporation Counsel Rik Kluessendorf on the progress of the case, saying he had been contacted by constituents concerned about the county’s mounting costs.

Kluessendorf told Strom that Gordon, who was in court that day regarding the case,  “was looking to appeal” aspects of the case and that there was a “dispute over attorney’s fees.”

Last fall, the Second District Court of Appeals ruled that Voiland was correct when he dismissed an August 2015 petition filed by the county’s Department of Health Services seeking guardianship of the then-80-year-old woman’s estate and her placement in assisted living. 

Voiland also ordered the county to pay $97,746 in private attorney fees accrued by her son, who opposed the petition, according to the Appeals Court ruling. The Appeals Court also directed Voiland to determine the cost of fees owed to the son’s and mother’s attorneys related to the appeal.

County supervisors gave Gordon the go-ahead to ask the state Supreme Court to review the case, hiring an outside lawyer to do so. The high court subsequently denied the review.

With the other appeals and hearings, fees are approaching $300,000, according to one source with knowledge of the proceedings.

Any fees the county must pay will come from the 2019 budget, County Administrator Jason Dzwinel said.

While the Circuit Court case files and ongoing appeals are sealed, court records of events and of the appellate decision from October are not. 

The woman and her adult children are identified only by their initials in court documents.

According to the Appeals Court ruling, the woman had assigned power of attorney to the son, taking that away from her daughter with whom court filings say the son had been at odds for years. But the county believed the woman was not competent to make that decision, had possibly been coerced by her son to do so and believed it was in the mother’s best interests for the county to assume guardianship.

Voiland ruled the county did not establish that the woman was incompetent when she signed the power of attorney over to her son.

The county appealed and the Appeals Court supported Voiland.

A couple of months after the county filed its petition, a temporary restraining order against her son was sought on behalf of the mother by the county. 

Several caregivers — including staff at the Lasata Care Center, the  Cedarburg Senior Center, the county Aging and Disability Resource Center, the woman’s private caregiver and the daughter — said they believed the woman’s son had poisoned her mind against the daughter and her family and that the son convinced her that the daughter had been stealing money from her, according to the petition.

Voiland rejected the restraining order petition, saying it was never established that the mother was at risk.

In the midst of this case, Voiland had his own private battles with the county.

In the 2013 election, Voiland upset veteran Judge Tom Wolfgram with a campaign that focused on Wolfgram’s decision to sign a Gov. Scott Walker recall petition.

In 2016, Voiland sparked a 16-month criminal investigation of the Ozaukee County Court System with accusations that fellow court officials had committed criminal misconduct in office in an effort to undermine him. That investigation ended abruptly without reaching any conclusions, but an administrative probe conducted by the state court system that followed found no basis for those accusations.

In December, months after that finding, Voiland announced he would not seek a second term in office. A Dec. 26 statement attributed to his campaign stated that Voiland, a disabled Gulf War veteran, would be taking medical leave to complete treatment at the Milwaukee VA Medical Center.

Since January, Voiland has seldom been in court, although the reason for his absence remains unclear to court officials.

According to Clerk of Courts Mary Lou Mueller, since April 1, reserve judges have filled in for Voiland 23 days and Voiland has been in court five days.

Yet Voiland has apparently paid close attention to the guardianship case, filing several orders at the end of April and in early May, according to Appeals Court records.

Meanwhile, four candidates vied for Voiland’s Circuit Court seat in the spring election. Mid-Moraine Municipal Court Judge and lawyer Steve Cain was elected in April to succeed Voiland.

Voiland’s term expires July 31.

Gordon declined to comment on this story, but last fall said the county was justified in seeking a reversal of Voiland’s ruling.

“This was a classic case of elder abuse,” Gordon said in an interview. “We did what we would hope every county elder agency would do in similar circumstances.”

County Board Chairman Lee Schlenvogt also supported the effort, saying, “We have an obligation to our taxpayers” to fight Voiland’s decision, which he said could set a precedent for counties all across the state.

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