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In re Guardianship and Conservatorship of Alice H.

Supreme Court of Nebraska

May 24, 2019

In re Guardianship and Conservatorship of Alice H., an incapacitated and protected person.
v.
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.

         2. 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.

         3. 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.

         4. 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.

         5. ___: ___: ___: ___. 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.

          Appeal from the County Court for Douglas County: Marcena M. Hendrix, Judge. Affirmed in part, and in part reversed.

         [303 Neb. 236] Donald W. Kleine, Douglas County Attorney, Timothy K. Dolan, and Tess M. Moyer for appellant.

          No appearance for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Stacy, J.

         In 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.

         BACKGROUND

         In 2007, a guardianship-conservatorship was established for Alice H. (the ward) in Douglas County. The ward's adult daugh­ter, Pamela Grimes, was appointed her guardian-conservator.

         In 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.

         Application for Surcharge

         After 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.

         [303 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.''

         McGill 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.

         On 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 ...


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