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In re Guardianship and Conservatorship of Forster

Court of Appeals of Nebraska

October 28, 2014

IN RE GUARDIANSHIP AND CONSERVATORSHIP OF JAMES D. FORSTER, AN ALLEGED INCAPACITATED AND PROTECTED PERSON. MARK D. FORSTER, FORMER TEMPORARY GUARDIAN, APPELLANT,
v.
MARK J. MILONE, THIRD SUCCESSOR TEMPORARY GUARDIAN AND CONSERVATOR, APPELLEE

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Appeal from the County Court for Douglas County: Sheryl L. Lohaus, Judge.

Stephanie S. Shearer, of Reagan, Melton & Delaney, L.L.P., for appellant.

Mark J. Milone, of Govier & Milone, L.L.P., Pro se.

MOORE, PIRTLE, and RIEDMANN, Judges.

OPINION

[22 Neb.App. 480] Riedmann, Judge.

I. INTRODUCTION

Mark D. Forster (Mark), a son of an alleged incapacitated person, appeals from the order of the county court for Douglas County approving the final accounting and inventory filed by the third successor temporary guardian and conservator, Mark J. Milone. For the reasons set forth below, we affirm the county court's judgment in all respects, with the exception of the court's awards of attorney fees to Milone on March 6 and April 23, 2012, because such awards were not supported by competent evidence.

II. BACKGROUND

On August 10, 2011, Mark filed a petition to establish a guardianship and conservatorship for his father, James D. Forster (James). He alleged that James was incapacitated due to vascular dementia and was no longer capable of meeting his own physical needs, nor of making or communicating responsible decisions concerning his person and his property. Mark simultaneously filed an application for the appointment of himself as temporary guardian and conservator, alleging that an emergency existed because James was currently hospitalized and lacked the ability and understanding to make decisions for himself. The county court issued an order that same day [22 Neb.App. 481] appointing Mark as James' temporary guardian for a period not to exceed 90 days.

On September 2, 2011, Jeffrey Stoehr, counsel for James, filed an objection to Mark's petition for appointment of a guardian and conservator, as well as a motion to remove Mark as temporary guardian and to appoint a new temporary guardian and conservator. A hearing was held on September 6 during which the court removed Mark as temporary guardian and appointed an attorney, Sally Hytrek, as successor temporary guardian and conservator. As to Mark's petition for appointment of a permanent guardian and conservator, the court found that the matter was contested and " should be set for a pre-trial hearing at which time a date will be set for an evidentiary hearing." The pretrial hearing was scheduled for November 25; however, it does not appear that the hearing was ever held.

On September 30, 2011, Hytrek moved to resign as temporary guardian and conservator and suggested a suitable person to replace her. The court entered an order the same day allowing Hytrek's resignation and appointing her successor, James' second successor temporary guardian and conservator, whom the court ordered to issue a written report within 30 days as to the issues that may require an evidentiary hearing. The record does not disclose that such a report was ever issued.

On November 29, 2011, Hytrek's successor moved to with-draw as temporary guardian and conservator. A hearing was held on December 6 during which the court permitted him to withdraw and indicated to the parties that it would appoint another temporary guardian within a week. The court issued an order the following day appointing Milone, an attorney, as third successor temporary guardian and conservator. It ordered Milone to issue a written report within 30 days as to the issues that may require an evidentiary hearing. Milone never issued such a report.

Various hearings were held to address attorney fees and other motions filed by the parties from December 2011 through August 2012. However, an evidentiary hearing on the issues raised in the petition

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for guardianship was never scheduled [22 Neb.App. 482] or held. James died on August 26, 2012, at which point the temporary guardianship was still in place.

Upon James' death, Milone filed a final inventory and accounting as well as a petition for approval of the same, termination of the guardianship and conservatorship, and discharge of the guardian and conservator and a request for fees. Mark filed objections to the final inventory and accounting, alleging numerous failures by Milone. After several continuances, a hearing was held on the final inventory and accounting on May 21 and July 2, 2013. The county court subsequently issued a written order approving the final inventory and accounting. This appeal followed.

Additional facts as needed to address each assignment of error are contained in the appropriate section of our analysis below.

I. ASSIGNMENTS OF ERROR

Mark assigns that the county court erred by (1) failing to hold an evidentiary hearing on the guardianship and conservatorship petition; (2) failing to require the temporary guardian to post bond and failing to hold a hearing regarding bond after statutory changes went into effect on January 1, 2012; (3) issuing an ex parte order without supporting evidence and without following proper procedures; (4) granting certain requests for attorney fees; (5) overruling Mark's ...


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