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In re Guardianship of Brydon P.

Supreme Court of Nebraska

October 11, 2013

In re Guardianship of Brydon P., a child under 18 years of age.
v.
Eric L., intervenor-appellant and cross-appellee. Silvija P., appellee and cross-appellant,

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Appeal from the County Court for Sarpy County: TODD J. HUTTON, Judge. Affirmed in part, and in part reversed and remanded for further proceedings on the issue of fees.

Molly M. Blazek, of Law Office of Molly M. Blazek, Omaha, NE, for intervenor-appellant.

Amy Sherman and William D. Gilner, Omaha, NE, of Sherman & Gilner, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

2. Attorney Fees: Appeal and Error. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

3. Attorney Fees: Appeal and Error. When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb on appeal unless the court abused its discretion.

4. Attorney Fees. Whether attorney fees are authorized by statute or by our recognition of a uniform course of procedure presents a question of law.

5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an appellate court judicially construes a statute and that construction fails to evoke an amendment, the court presumes that the Legislature has acquiesced in its determination of the Legislature's intent.

6. Guardians and Conservators: Minors: Attorney Fees. When a court determines that a petitioner seeks a guardianship appointment for a minor in good faith and that the guardianship is in the minor's best interests, the court is statutorily authorized to assess a successful petitioner's reasonable costs, including attorney fees, against the minor's estate, if an estate exists. In such cases, the [286 Neb. 662] authorizing statute for the assessment is Neb.Rev.Stat. § 30-2613(1)(b) (Cum.Supp.2012).

7. Guardians and Conservators: Minors: Attorney Fees. Under Nebraska's guardianship statutes for minors, a county court is not authorized to assess attorney fees against another party.

8. Courts: Jurisdiction: Equity. Although county courts lack general equity jurisdiction, they may apply equitable principles to matters that are within their exclusive jurisdiction.

9. Actions: Parent and Child: Child Custody: Visitation: Standing. In the context of a court action in which a nonparent seeks custody or visitation with

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the child, in loco parentis is a standing doctrine. Its application depends upon the circumstances in existence when the nonparent claims a child's best interests lie in allowing him or her to exercise parental rights.

10. Parent and Child. Once a person alleged to be in loco parentis no longer discharges all duties incident to the parental relationship, the person is no longer in loco parentis. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.

11. Parent and Child: Guardians and Conservators: Minors: Child Custody: Standing. Because the in loco parentis doctrine is transitory, whether a person seeking guardianship of a minor should have standing to maintain custody if the minor's biological parent ever seeks custody in the future is an issue that cannot be decided in advance of any dispute.

Connolly, J.

SUMMARY

After Brydon P.'s mother died, the county court appointed the appellee, Silvija P., to be his permanent guardian. Silvija is Brydon's maternal grandmother. The appellant, Eric L., is Brydon's adjudicated father. The court allowed Eric to intervene. Although it appointed Silvija as Brydon's permanent guardian, it rejected her request for permanent in loco parentis [286 Neb. 663] status. The court awarded Silvija attorney fees and assessed them equally to Brydon's estate and Eric.

In Eric's appeal, we are asked to decide whether, in a guardianship proceeding, a county court can assess a petitioner's attorney fees against another party. In Silvija's cross-appeal, the issue is whether a court can confer permanent in loco parentis status to a party. We conclude that in a guardianship proceeding for a minor, a court cannot assess a petitioner's costs against another party. Nor does the record show that the court awarded fees under Neb.Rev.Stat. § 25-824 (Reissue 2008). We therefore reverse that part of the court's order that assessed Silvija's attorney fees against Eric and remand the cause for further proceedings. But we affirm the court's determination that it could not confer permanent in loco parentis status to Silvija.

BACKGROUND

Brydon was born in 1999. Eric and Brydon's mother, Nicole L., never married, and Eric does not have a familial relationship with Brydon. But he has paid court-ordered child ...


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