In re Guardianship and Conservatorship of Alice H., an incapacitated and protected person.
Douglas County, Nebraska, appellant. Jodie Haferbier McGill, Successor Guardian and Conservator, appellee,
1. Guardians and Conservators:
Appeal and Error. An appellate court reviews
guardianship and conservatorship proceedings for error
appearing on the record in the county court.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, an appellate
court's inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Courts: Jurisdiction. Under Neb. Rev. Stat.
§ 25-2720.01 (Reissue 2016), county courts have the
power to vacate or modify their own judgments and orders
during or after the term in which they were made in the same
manner as provided for district courts.
Guardians and Conservators: Counties: Attorney Fees:
Costs. Under Neb. Rev. Stat. § 30-2620.01
(Reissue 2016), a court may order the county to pay the
reasonable fees and costs of an attorney appointed by the
court for the incapacitated person, but only if the
incapacitated person does not possess an estate.
___: ___: ___. Under Neb. Rev. Stat. § 30-2643 (Reissue
2106) a court may order the county to pay the reasonable fees
and costs of an attorney appointed by the court for the
protected person, but only if the protected person does not
possess an estate.
from the County Court for Douglas County: Marcena M. Hendrix,
Judge. Affirmed in part, and in part reversed.
Neb. 236] Donald W. Kleine, Douglas County Attorney, Timothy
K. Dolan, and Tess M. Moyer for appellant.
appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
2016, the county court for Douglas County surcharged a former
guardian-conservator and ordered her to pay, among other
things, $37,505.70 in attorney fees to the successor
guardian-conservator. The former guardian-conservator paid
only a portion of the attorney fees, and in 2018, the
successor guardian-conservator asked the court to order
Douglas County to pay the balance. The court granted that
request, and Douglas County appeals. Because the record
contains no evidence that the ward did not possess an estate
from which the attorney fees could be paid, we reverse that
portion of the order.
2007, a guardianship-conservatorship was established for
Alice H. (the ward) in Douglas County. The ward's adult
daughter, Pamela Grimes, was appointed her
2012, the court was notified that Grimes had not been paying
the ward's nursing home bills and had refused to sell the
ward's home, which had become infested with bugs. The
nursing home sought the appointment of a nonfamily member to
serve as guardian-conservator for the ward. A hearing was
held, and the court appointed attorney Jodie Haferbier McGill
to serve as the ward's guardian-conservator.
her appointment, McGill filed an application for
surcharge, alleging Grimes had misappropriated the
ward's funds. The application alleged that $ 26,914.91 of
the ward's funds were "unaccounted for" and
sought to have Grimes surcharged "in an amount that the
Court deems appropriate." The application also
sought an award of attorney fees.
Neb. 237] An evidentiary hearing on the application was held
on February 19, 2016. Grimes appeared pro se, and McGill
represented herself. McGill offered into evidence an
affidavit in which she averred that she spent 20.5 hours
initiating and prosecuting the surcharge action, at a rate of
either $180 per hour for an attorney or $60 per hour for an
assistant, for a total of $2,360. At the hearing, however,
McGill also indicated she planned to amend her affidavit
"to include the unpaid amount for my attorney's fees
for acting as guardian/conservator.''
filed such an amended affidavit on March 8, 2016. The amended
affidavit itemized all the time McGill had spent on the case
in her capacity as a guardian-conservator, averring she spent
219.36 hours at an hourly rate of $180 for an attorney
or $60 for an assistant, for a total of $37,252.20, plus
costs and expenses of $253.50. The amended affidavit included
the 20.5 hours McGill attributed in her earlier affidavit to
initiating and prosecuting the surcharge action.
March 9, 2016, the court entered an order granting the
application for surcharge. The court found that Grimes
"misappropriated several thousand dollars of the
ward's income and assets" and "utilized the
ward's bank account for her own personal use." It
also found McGill was an attorney who spent time "in
furtherance of duties on the legal issues in this
matter" at rates that were fair and reasonable. The
order directed Grimes to "purchase a prepaid funeral
policy for [the ward] as restitution for the misappropriated
funds." The order also sustained McGill's amended
motion for attorney fees and specifically ordered Grimes
to: "Pay the Successor Guardian and Conservator's