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In Re Guardianship and Conservatorship of Ardelle E. Shannon, An Incapacitated Person. v. Dennis Shannon and Gary Shannon

February 1, 2011

IN RE GUARDIANSHIP AND CONSERVATORSHIP OF ARDELLE E. SHANNON, AN INCAPACITATED PERSON.
DANNY SHANNON,
APPELLANT,
v.
DENNIS SHANNON AND GARY SHANNON,
APPELLEES.



Appeal from the County Court for Douglas County: MARCENA M. HENDRIX, Judge.

The opinion of the court was delivered by: Moore, Judge.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IN RE GUARDIANSHIP & CONSERVATORSHIP OF SHANNON

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Affirmed.

IRWIN, CARLSON, and MOORE, Judges.

INTRODUCTION

The county court for Douglas County appointed Dennis Shannon and Gary Shannon as guardian and conservator, respectively, of their mother, Ardelle E. Shannon, over the objection of Danny Shannon. The court also assessed attorney fees against Danny to be reimbursed to the estate. On appeal, Danny challenges only the assessment of attorney fees against him. Because we find no abuse of discretion by the county court in this regard, we affirm. Pursuant to Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was submitted without oral argument.

BACKGROUND

Dennis, Gary, and Danny are all children of Ardelle. Dennis resides in Omaha, Nebraska; Gary resides in California; and Danny resides in Virginia. There are also two other siblings:

Lynda Tews (Lynda), who resides in Virginia, and another sister whose whereabouts are unknown and who is not in contact with the family. At some point prior to the filing of the petition for appointment of guardian and conservator, the three brothers and Lynda agreed generally that their mother was incapacitated and needed a guardian and conservator. The record shows that Danny and Lynda initially paid the fees of the attorney who was hired to file the petition for appointment. On October 31, 2008, the petition for appointment was filed, seeking appointment of Dennis as guardian and Gary as conservator, alleging that all four siblings were in agreement with these appointments. On the same day, an order was entered appointing Dennis as temporary guardian and Gary as temporary conservator. On January 13, 2009, Danny, with different counsel, filed an objection to Dennis' appointment. The objection alleged that Ardelle did not trust Dennis due to the way he ran the family business, that Dennis has animosity toward Ardelle because she fired him from and sold the family business, that a conflict of interest existed due to a debt owed by Dennis to Ardelle, that Dennis does not pay rent for his use of a building owned by Ardelle, and that Ardelle does not trust Gary because of the way he assisted Dennis in running the family business and not holding Dennis accountable. As a result of Danny's objection, the original attorney who filed the guardianship and conservatorship petition withdrew and new counsel represented Dennis and Gary for the balance of the proceedings. The court appointed a guardian ad litem for Ardelle to recommend a guardian and conservator.

Discovery was conducted, which included written interrogatories and requests for production of documents, as well as depositions of Dennis, Gary, and Danny. The focus of this discovery generally entailed the suitability of Dennis and Gary to serve as guardian and conservator in response to Danny's objection. Pretrial hearings were held on discovery disputes. The record shows that Danny resisted having his deposition taken in Omaha and sought allowance of a telephone deposition. Danny's initial refusal to voluntarily submit to a deposition necessitated the issuance of a subpoena and the filing of a motion to compel his attendance. Following a hearing on this motion to compel, the county court ordered that Danny have his deposition taken in Omaha. This discovery dispute resulted in a continuance of the first trial date. Danny thereafter sought a motion to compel Dennis to answer questions that he refused to answer in his deposition, including questions regarding his Social Security number, his income and finances, who was paying his attorney fees, his sexual activities, and domestic abuse charges against him. The court sustained the objections to these questions, denied Danny's motion to compel, and stated on the record, "Let's get on with it please."

Trial was held on July 27, 2009. At the commencement of trial, various medical records were stipulated into evidence, which records and reports generally confirm Ardelle's progressive dementia and need for a guardian and conservator. The focus of the trial was Danny's objection to, and the suitability of, Dennis and Gary serving as permanent guardian and conservator. The evidence shows that there has been a fair amount of acrimony between Ardelle and all of her children over the years, and that Ardelle is a fiercely private, independent, and strong-willed person. Ardelle was unhappy about the instant proceedings and did not want to have someone else in control of her life. Gary, who is an accountant, has been assisting Ardelle with her finances for several years, and Gary was a joint holder on some of Ardelle's bank accounts. Dennis, as the only child in ...


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