In re Guardianship & Conservatorship of Alice H. , 303 Neb. 235 ( 2019 )


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  • Nebraska Supreme Court Online Library
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    06/28/2019 09:06 AM CDT
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
    Cite as 
    303 Neb. 235
    In   Guardianship and Conservatorship of
    re
    A lice H., an incapacitated and
    protected person.
    Jodie H aferbier McGill, Successor Guardian
    and Conservator, appellee, v. Douglas
    County, Nebraska, appellant.
    ___ N.W.2d ___
    Filed May 24, 2019.     No. S-18-780.
    1. Guardians and Conservators: Appeal and Error. An appellate court
    reviews guardianship and conservatorship proceedings for error appear-
    ing 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 deci-
    sion 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 judg-
    ments 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: M arcena
    M. Hendrix, Judge. Affirmed in part, and in part reversed.
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
    Cite as 
    303 Neb. 235
    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 daugh-
    ter, 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.
    A pplication for Surcharge
    After her appointment, McGill filed an application for sur-
    charge, 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 applica-
    tion also sought an award of attorney fees.
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
    Cite as 
    303 Neb. 235
    An evidentiary hearing on the application was held on
    February 19, 2016. Grimes appeared pro se, and McGill rep-
    resented 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 attor-
    ney 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 “mis-
    appropriated 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 mat-
    ter” 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 spe-
    cifically ordered Grimes to: “Pay the Successor Guardian and
    Conservator’s attorney’s fees in the amount of $37,505.70 to
    . . . McGill. This amount shall accrue interest at the judicial
    rate of 2.510% until paid in full.”
    No appeal was taken from this 2016 order.
    2018 A pplication for A pproval
    of Attorney Fees
    In March 2018, McGill filed an application and support-
    ing affidavit for approval of attorney fees in the amount of
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
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    $2,088 plus costs of $12.57 as “payment for the work done
    [as guardian-conservator from] March 9, 2017 to February 9,
    2018.” This was the only relief requested in the application.
    The supporting affidavit averred that the ward had died and
    referenced bank assets of $1,768.76 as of February 21. The
    affidavit sought an order directing the bank assets to be applied
    toward the $2,088 in attorney fees.
    The affidavit also made several additional requests that were
    unrelated to the motion seeking $2,088 in attorney fees. As rel-
    evant to this appeal, the affidavit referenced the court’s March
    9, 2016, order requiring Grimes to pay McGill’s attorney
    fees, and averred that Grimes had paid only $100 and owed
    “an outstanding total balance of $42,990.23.” The affidavit
    requested that Douglas County be ordered to pay the balance
    of the attorney fee award at the reduced hourly rate of $60 per
    hour for a total of $15,160.64, but also asked that “Grimes be
    liable for any and all unpaid portions of the total balance of
    the account.” In an amended affidavit, McGill asked that the
    “balance of the order entered on March 9, 2016” be paid by
    Douglas County “at the reduced rate of $80 per hour for a total
    of $15,725.60.”
    At a hearing on June 22, 2018, the county court took up
    several matters, including McGill’s application for approval
    of attorney fees, and a separately filed motion to terminate
    the guardianship which is not in our record. Douglas County
    appeared at the hearing to oppose McGill’s request that the
    county be ordered to pay the balance of the attorney fees
    previously taxed to Grimes. After the hearing, the county
    court entered two orders. The first order was filed the same
    day as the hearing, and the second was filed approximately 1
    week later.
    In its first order, the “Douglas County Court Fund” was
    ordered to pay two sums: (1) “[g]uardian fees in the amount of
    $1,923.57” and (2) “the balance of the order entered March 9,
    2016 in the amount of $17,649.17 . . . for prior Guardian Fees
    and expenses incurred by . . . McGill in her duties as Guardian
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    of [the ward].” The second order, entered June 29, terminated
    the guardianship-conservatorship, approved the final account-
    ing, and ordered the “Douglas County Court” to pay two
    sums: (1) attorney fees of $1,923.57 for McGill’s “current
    fees” and (2) prior attorney fees and expenses in the sum of
    $15,725.60. Additionally, the court ordered that $1,768.76 was
    “to be paid from [the ward’s] American National Bank trust
    account” to McGill.
    Motions to A lter or A mend
    On June 27, 2018, Douglas County filed a motion to alter or
    amend the June 22 order and filed an amended motion the next
    day. The county did not ever seek to alter or amend the order
    entered June 29.
    As to the order of June 22, 2018, Douglas County asked
    the court to amend the requirement that Douglas County “pay
    the Successor Guardian and Conservator the balance of an
    earlier order entered March 9, 2016 (said balance totaling
    $17,649.17).” The county argued the fees had been assessed
    against Grimes due to her misappropriation of the ward’s
    funds and claimed it would violate public policy to require
    the county to expend taxpayer funds to indemnify Grimes for
    her private misconduct. Douglas County did not challenge
    the June 22 order to the extent it required Douglas County to
    pay the guardian-conservator’s “current fees” in the amount
    of $1,923.57.
    On July 11, 2018, a hearing was held on the motions to alter
    or amend. No evidence was adduced. Douglas County argued
    that although the March 2016 order had not cited any statu-
    tory authority for ordering Grimes to pay McGill’s attorney
    fees, the court likely relied on Neb. Rev. Stat. § 30-2658(b)
    (Reissue 2016). That statute provides in relevant part that a
    conservator is individually liable for torts committed in the
    course of administration of the estate if he or she is personally
    at fault. Douglas County argued that by assessing a surcharge
    in March 2016, the court found Grimes was individually liable
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
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    for the amount surcharged. The county’s argument character-
    ized the entire $37,505.70 judgment against Grimes as relat-
    ing to the time McGill spent investigating and prosecuting
    Grimes’ misappropriation.
    On July 27, 2018, the court entered an order granting, in
    part, the county’s motions, and amending its prior order “to
    the extent that the Guardian’s hourly rate is reduced to $50.00
    per hour. It is further ordered that Douglas County Court pay
    . . . McGill $10,968.00.”
    On August 8, 2018, Douglas County filed a notice pur-
    porting to appeal from the court’s orders of June 22 and July
    27. We moved this case to our docket on our own motion.
    McGill has not filed a brief or otherwise participated in this
    appeal.
    ASSIGNMENTS OF ERROR
    Douglas County assigns, restated, that the county court erred
    in (1) modifying its 2016 order 2 years after issuing it and (2)
    ordering Douglas County to assume Grimes’ personal liability
    for paying McGill’s attorney fees.
    STANDARD OF REVIEW
    [1,2] An appellate court reviews guardianship and conser-
    vatorship proceedings for error appearing on the record in the
    county court.1 When reviewing a judgment for errors appearing
    on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence,
    and is neither arbitrary, capricious, nor unreasonable.2
    ANALYSIS
    As a threshold matter, we note that although Douglas County
    seeks to appeal from the orders of June 22 and July 27, 2018,
    the order of June 22 was effectively superseded by the order of
    1
    In re Guardianship & Conservatorship of Barnhart, 
    290 Neb. 314
    , 
    859 N.W.2d 856
    (2015).
    2
    
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
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    June 29. We thus focus our analysis on the final order of July
    27, which purported to modify the order of June 29.
    2016 Order Not Vacated
    or Modified
    [3] Douglas County first argues that the county court’s
    order was improper because it vacated or modified the March
    2016 order without legal authority. 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.3 But on this record, we
    cannot find that when the county court entered its July 27,
    2018, order, it also vacated or modified its earlier order of
    March 2016.
    The court’s March 2016 order required Grimes to pay McGill
    attorney fees in the amount of $37,505.70. The court’s July 27,
    2018, order required Douglas County to pay McGill attorney
    fees of $10,968 for the same period. Neither the July 27 order
    nor the June 29 order referenced, expressly or impliedly, the
    March 2016 order.
    Douglas County assumes the July 27, 2018, order sought
    to modify the March 2016 order, because both orders relate to
    McGill’s attorney fees for the same time period. But the fact
    that both orders relate to payment of McGill’s attorney fees
    does not compel the conclusion that the latter order vacated or
    modified the former. Two parties can both be responsible for
    the same financial obligation,4 and the record indicates that in
    2018, when McGill asked the court to order Douglas County
    to pay a portion of the 2016 attorney fee award, she expressly
    asked that Grimes also remain liable.
    On this record, we find no merit to Douglas County’s con-
    tention that the order of July 27, 2018, vacated or modified
    3
    See In re Interest of Luz P. et al., 
    295 Neb. 814
    , 
    891 N.W.2d 651
    (2017),
    citing Neb. Rev. Stat. § 25-2720.01 (Reissue 2016).
    4
    See, generally, Cano v. Walker, 
    297 Neb. 580
    , 
    901 N.W.2d 251
    (2017).
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    IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
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    the March 2016 order, and we proceed to the consideration of
    whether the July 27 order conformed to the law, was supported
    by competent evidence, and was neither arbitrary, capricious,
    nor unreasonable.5
    No Personal Liability Shifted
    Douglas County argues it would violate public policy to
    make the county pay sums the court previously ordered Grimes
    to pay individually because of her wrongful conduct. This
    argument is premised on the county’s assumption, expressed
    repeatedly before the county court and in its briefing to this
    court, that the $37,505.70 in attorney fees Grimes was ordered
    to pay in the March 2016 order is related to time McGill spent
    investigating and prosecuting the surcharge action.
    But the record here, specifically the affidavits submitted by
    McGill at the time the surcharge action was tried, does not
    support Douglas County’s assumption that the $37,505.70 in
    attorney fees was attributable to Grimes’ misappropriation.
    To the contrary, the record shows the actual attorney fees
    incurred by McGill in investigating and prosecuting the sur-
    charge were approximately $2,300, and the remainder of the
    $37,505.70 in fees was incurred by McGill during the course
    of performing her regular duties as the ward’s guardian and
    conservator.
    Because the record does not support Douglas County’s con-
    tention that the $37,505.70 in attorney fees was incurred as a
    result of investigating or proving Grimes’ misconduct, there is
    no merit to the related argument that it would therefore violate
    public policy to require Douglas County to pay a portion of
    those fees.
    OrderPay Fees Was Improper
    to
    Without Evidence
    The court entered three separate orders directing Douglas
    County to pay McGill’s attorney fees, and none cited any
    5
    In re Guardianship & Conservatorship of Barnhart, supra note 1.
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    authority for doing so. Our review of the relevant authority
    indicates two statutes under which the county may be ordered
    to pay such fees. The first is Neb. Rev. Stat. § 30-2620.01
    (Reissue 2016), which applies in guardianship proceedings for
    incapacitated persons and provides in relevant part:
    The reasonable fees and costs of an attorney, a guard-
    ian ad litem, a physician, and a visitor appointed by the
    court for the person alleged to be incapacitated shall be
    allowed, disallowed, or adjusted by the court and may be
    paid from the estate of the ward if the ward possesses an
    estate or, if not, shall be paid by the county in which the
    proceedings are brought or by the petitioner as costs of
    the action.
    The second is Neb. Rev. Stat. § 30-2643 (Reissue 2016), which
    applies in conservatorship proceedings and provides in rel-
    evant part:
    The reasonable fees and costs of an attorney, a guard-
    ian ad litem, a physician, a conservator, a special con-
    servator, and a visitor appointed by the court for the
    person to be protected shall be allowed, disallowed, or
    adjusted by the court and may be paid from the estate of
    the protected person if the protected person possesses an
    estate or, if not, shall be paid by the county in which the
    proceedings are brought or by the petitioner as costs of
    the action.
    These statutes authorize a court to “allow[], disallow[], or
    adjust[]” the payment of “reasonable fees and costs” of an
    attorney appointed by the court for an incapacitated person in
    guardianship proceedings or for a protected person in conser-
    vatorship proceedings.6 However, both statutes provide that
    if the incapacitated person or protected person “possesses an
    estate,” the fees “may be paid from the estate.”7 And both stat-
    utes provide that if the incapacitated person or protected person
    6
    §§ 30-2620.01 and 30-2643.
    7
    
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    does not possess an estate, then the fees and costs “shall be
    paid by the county in which the proceedings are brought or by
    the petitioner as costs of the action.”8
    [4,5] Under either statute, then, the county can be ordered
    to pay reasonable attorney fees only if the incapacitated per-
    son or protected person does not possess an estate. But in the
    instant guardianship-conservatorship proceeding, the record on
    appeal contains neither findings nor evidence regarding the
    extent of the ward’s estate. There were arguments presented
    suggesting the ward was indigent, but counsel’s arguments are
    not evidence.9 And although an affidavit was received averring
    the ward had a small sum of money in one bank account at the
    time of her death, this alone is not sufficient for the county
    court, or for this court, to conclude the ward does not “pos-
    sess[] an estate” under § 30-2620.01 or § 30-2643.
    On this record, we cannot find that either § 30-2620.01 or
    § 30-2643 provides statutory authority for the court’s order
    directing Douglas County to pay McGill’s attorney fees. We
    have not been directed to any alternative authority or rec-
    ognized course of procedure to support an order requiring
    Douglas County to pay McGill’s attorney fees, and we there-
    fore cannot find the order of the county court conforms to the
    law or is supported by competent evidence.
    CONCLUSION
    On this record, we cannot find the county court’s order of
    July 27, 2018, conformed to the law and was supported by
    competent evidence to the extent it directed Douglas County to
    pay McGill’s attorney fees. We thus reverse that portion of the
    order, and in all other respects, the order is affirmed.
    A ffirmed in part, and in part reversed.
    8
    
    Id. 9 Hausman
    v. Cowen, 
    257 Neb. 852
    , 
    601 N.W.2d 547
    (1999).