In re Guardianship of Elizabeth C. , 31 Neb. Ct. App. 535 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/17/2023 09:03 AM CST
- 535 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535In re Guardianship of Elizabeth C.,
an incapacitated person.
Valorie S., appellant, v.
Malachi S., appellee.
___ N.W.2d ___
Filed January 17, 2023. No. A-22-130.
1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Decedents’ Estates: Judgments: Appeal and Error. In the absence
of an equity question, an appellate court, reviewing probate mat-
ters, examines for error appearing on the record made in the county
court. When reviewing a judgment for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. Decedents’ Estates: Equity: Appeal and Error. Equity questions aris-
ing in appeals involving the Nebraska Probate Code are reviewed
de novo.
6. Rules of Evidence: Appeal and Error. The admission of evidence
is reviewed for abuse of discretion where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court.
7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
- 536 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 5358. Courts: Jurisdiction: Equity. Although county courts lack general
equity jurisdiction, they may apply equitable principles to matters that
are within their exclusive jurisdiction.
9. Courts: Agency. The county courts have authority to construe a power
of attorney or review the agent’s conduct and grant appropriate relief.
Appeal from the County Court for Douglas County: Darryl
R. Lowe, Judge. Affirmed.
LaShawn D. Young, of Young & Young Attorneys at Law,
for appellant.
Christian R. Blunk, of Harris & Associates, P.C., L.L.O., for
appellee.
Moore, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
A guardian and conservator appeals the order of the county
court for Douglas County confirming the transfer of real estate
to a ward’s attorney in fact under a durable power of attorney
(POA). The guardian and conservator contests the court’s juris-
diction, the sufficiency of the evidence, and the court’s receipt
of the ward’s will into evidence. We affirm.
BACKGROUND
Elizabeth C. is the mother of six children: Valorie S., John
S., Malachi S., Mark S., Christopher S., and Tealauna S.
Elizabeth owned two houses in Omaha, Nebraska: one located
on North 48th Street (the 48th Street house) and the other
located on Miami Street (the Miami Street house).
In September 2019, Malachi took Elizabeth to an emergency
room. At the time, she was 78 years of age. Her blood pres-
sure was “way off the charts,” and she suffered a seizure at
the emergency room. Elizabeth was admitted to the hospital
through the stroke neurology department. Upon discharge,
- 537 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535Elizabeth’s diagnoses included cerebrovascular accident, hyper-
tension, hypercholesterolemia, and vascular dementia without
behavioral disturbance.
Prior to Elizabeth’s release from the hospital, a “notary”
from the hospital advised Malachi that Elizabeth needed a
POA so someone could take care of her bills and anything
else, in the event “she took a turn for the worse.” Elizabeth
executed a durable POA appointing Malachi as her attorney
in fact on October 14, 2019. Elizabeth was then released
to a rehabilitation facility. At that time, she was responsive
and able to understand what was going on with her medi-
cal treatment.
Malachi was advised by the doctors in December 2019
that Elizabeth had advanced vascular dementia. Elizabeth was
discharged from the rehabilitation facility in February 2020,
because Medicare stopped paying her bill due to her lack of
progress. An employee of the rehabilitation facility’s business
office advised Malachi that they needed Elizabeth’s financial
information to help Malachi decide where to take Elizabeth,
because she was unable to return home. They asked about
her bank statements and the number of cars and houses she
owned. They advised him that if Elizabeth had a will, then he
should transfer anything she had in her name pursuant to the
provisions of the will. He was told the same thing by other
long-term care facilities that they considered, as well as by the
facility to which he ultimately transferred her.
Pursuant to the advice Malachi was receiving, he obtained
a copy of Elizabeth’s will and distributed the real estate
and vehicles according to its terms and made several of
the cash distributions. Included in the will was a devise to
Malachi of the 48th Street house, so he deeded it to him-
self. In June 2020, Valorie filed an application for appoint-
ment of a temporary and permanent guardian and con-
servator for Elizabeth and nominated herself to serve in
those roles. She was appointed in a temporary position,
and Malachi initially filed a motion to terminate the temporary
- 538 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535guardianship and conservatorship, but later withdrew it.
Valorie was appointed Elizabeth’s permanent guardian and
conservator on March 8, 2021.
Following Valorie’s appointment, Malachi filed a motion to
confirm the transfer of the 48th Street house. Valorie objected,
and a contested hearing was held on January 31, 2022. In
addition to the facts set forth above, the following evidence
was adduced.
According to John, Malachi was the child Elizabeth trusted
with her finances and was named as her personal representa-
tive in her will. John had conversations with Elizabeth regard-
ing her estate plan and was aware that she was devising the
48th Street house to Malachi, the Miami Street house to
Christopher, and several vehicles to the other sons. Valorie was
not designated as a devisee to any of the houses or vehicles.
John explained that Elizabeth and Valorie had had a “falling
out” in about 2016 that involved Elizabeth’s refusal to allow
Valorie to live in the Miami Street house. John felt that prior
to Elizabeth’s hospitalization in September 2019, Elizabeth had
the mental capacity to make her own decisions.
Malachi resides in the 48th Street house. He has been dis-
abled since 2013 due to progressive glaucoma. He has talked
to or seen his mother every day leading up until the time she
was hospitalized. Malachi explained that Elizabeth drafted a
will and had Malachi’s wife type it. The will was received into
evidence over Valorie’s foundational objection. It indicates
on its cover that it was made March 12, 2018, and executed
on April 5.
After being advised by the long-term care facilities to trans-
fer his mother’s assets, Malachi secured his mother’s will,
which she kept under her television stand. He made most of
the distributions contained in the will, but first, he sought
counsel from the care facilities to make sure he was doing
things properly. He deeded the 48th Street house to himself
and the Miami Street house to Christopher. He transferred
- 539 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535the 48th Street house to himself on January 27, 2020, and the
Miami Street house before that.
According to Malachi, he kept all the family members who
had a relationship with his mother fully informed. He sent
a text message to Valorie the day their mother went to the
hospital, but she did not respond to him or any of her sib-
lings. According to Malachi and Christopher, Valorie did not
visit while Elizabeth was in the hospital. Valorie confirmed
this. Christopher described Valorie as “disown[ing] us” in
April 2017.
Malachi testified that he had a phone call with Valorie in
the fall of 2019, explaining what the long-term care facilities
were telling him. Malachi believed his prior attorney sent all
family members a copy of the will in the summer of 2020.
According to Malachi, his mother told him to pay off the 48th
Street house; that provision is not in the will, but a “Statement
of Wishes” attached to the will indicates that funds from
Elizabeth’s retirement account should be used to pay off the
house at the time of her death, if not already accomplished.
Malachi made the cash gifts to his brothers as provided in the
will, but he did not distribute the cash gifts contained in the
will to his sisters or to himself. The will does not contain a
cash gift to Christopher, but Malachi stated that Elizabeth told
him to make one. He also transferred money from Elizabeth’s
retirement account to her credit union account after subtract-
ing the amount needed to pay off the mortgage on the 48th
Street house.
When questioned why he withdrew his objection to the
temporary guardianship and conservatorship, Malachi stated
there was an agreement that if Valorie would “not mess with
any of the things that were gifted to the family,” Malachi
would relinquish his POA. After relinquishing his POA and
withdrawing his objection, he discovered that Valorie did not
agree to that.
Following Elizabeth’s hospitalization, Valorie first saw her
mother on October 14, 2019. She testified that she did not
- 540 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535know her mother was in the hospital and did not find out any-
thing until she was transferred to the rehabilitation facility.
Valorie testified Elizabeth wanted Malachi’s POA revoked
because Elizabeth was concerned about her finances. She told
Valorie that she repeatedly asked Malachi for receipts and
statements and that he would not provide them, simply stating
everything was being paid and taken care of. Valorie contacted
Malachi, John, and John’s wife after Elizabeth relayed that
information, and they told Valorie the same thing. According to
Valorie, Elizabeth was present at the time of the conversations
and was very upset over what she heard.
After Valorie discovered that the 48th Street house had
been transferred, she contacted Adult Protective Services
to begin an investigation into Malachi’s actions. Following
the investigation, the Nebraska Department of Health and
Human Services issued a letter stating that the allegations
were unfounded.
Valorie contacted an attorney to draft another POA appoint-
ing her as attorney in fact. Valorie presented this POA dated
February 24, 2020, to the credit union. The credit union
advised Valorie in a letter that it would not accept her POA
without further documentation because it conflicted with a
prior POA it had on file and because it had contacted Elizabeth,
who had no recollection of signing the POA. Valorie did not
respond to the letter.
Valorie’s attorney suggested that Valorie obtain letters from
Elizabeth’s physicians indicating Elizabeth’s diagnosis and
prognosis. After receiving a letter from one of Elizabeth’s
physicians, Valorie decided it would be in Elizabeth’s best
interests to seek a guardianship. Since being appointed,
Valorie has been taking care of Elizabeth’s affairs. In the
course of doing so, she became concerned with some of the
withdrawals she saw on the accounting provided by Malachi,
specifically those described as “Pay her bills/Gifts.” Because
of her concerns, Valorie objected to Malachi’s motion to con-
firm the transfer of the 48th Street house.
- 541 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535The court ruled from the bench that the greater weight of the
evidence was with Malachi and confirmed the transfer of the
48th Street house to him. Valorie appeals.
ASSIGNMENTS OF ERROR
Valorie assigns that (1) the court lacked jurisdiction to
approve the transfer of the real property; (2) the evidence
was insufficient to determine the transfer of the property was
proper and without self-dealing; and (3) the court erred in
allowing Elizabeth’s will into evidence without proper founda-
tion, prejudicing Valorie.
STANDARD OF REVIEW
[1-3] Subject matter jurisdiction and statutory interpreta-
tion present questions of law. In re Estate of Adelung, 306
Neb. 646, 947 N.W.2d 269 (2020). A jurisdictional question
which does not involve a factual dispute is determined by
an appellate court as a matter of law. Id. An appellate court
independently reviews questions of law decided by a lower
court. Id.[4,5] In the absence of an equity question, an appellate
court, reviewing probate matters, examines for error appear-
ing on the record made in the county court. When reviewing
a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. Equity questions arising in appeals involv-
ing the Nebraska Probate Code are reviewed de novo. In re
Estate of Adelung, supra.[6] The admission of evidence is reviewed for abuse of
discretion where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court.
Prime Home Care v. Pathways to Compassion, 283 Neb. 77,
809 N.W.2d 751 (2012).
- 542 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535ANALYSIS
Subject Matter Jurisdiction.
Valorie contends that the county court lacked jurisdiction
to address Malachi’s motion because the recovery sought was
akin to a request to quiet title. And because a quiet title action
lies in equity and the county court does not possess equity
jurisdiction, she concludes the court was without jurisdiction.
We disagree.
[7] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or cat-
egory to which the proceedings in question belong and to
deal with the general subject matter involved. In re Estate of
Adelung, supra.County courts maintain exclusive original jurisdiction of
guardianship and conservatorship matters. Neb. Rev. Stat.
§ 24-517(2) and (3) (Cum. Supp. 2022). They also have con-
current jurisdiction with the district court in any matter relating
to a POA and the action or inaction of any agent acting under a
POA. See, § 24-517(13); In re Estate of Adelung, supra.After Valorie filed her application for guardianship and
conservatorship of her mother in which she asserted an Adult
Protective Services investigation into possible financial abuse
(following Valorie’s report regarding Malachi), Malachi filed
a motion to confirm transfer of the home. In the motion, he
asserted that at the time of the transfer, he was acting under
a durable POA and the transfer was pursuant to his mother’s
wishes. Valorie objected to the motion on the basis that her
mother lacked the capacity to transfer the home to Malachi,
and Valorie requested that the court deny the confirmation of
the transfer.
Valorie now claims that the county court was without
jurisdiction to rule on Malachi’s motion to confirm. She
relies upon In re Guardianship of Kath, No. A-02-1126, 2003
WL 22232019 (Neb. App. Sept. 30, 2003) (not designated
for permanent publication), in support of her argument that
county courts do not have jurisdiction over matters in equity.
- 543 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535However, In re Guardianship of Kath involved a motion by
a guardian seeking a determination of whether loan docu-
ments executed by the ward were legitimate and whether the
ward’s son had defrauded her. It did not involve actions taken
pursuant to a POA. Acknowledging that county courts lacked
general equitable jurisdiction, we determined the county court
lacked jurisdiction to determine the issues before it. See id.[8] Although county courts lack general equity jurisdiction,
they may apply equitable principles to matters that are within
their exclusive jurisdiction. In re Guardianship of Brydon P.,
286 Neb. 661, 838 N.W.2d 262 (2013). See, also, In re Estate
of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020) (recogniz-
ing that appellate courts have upheld county courts’ application
of equitable principles to matters within probate jurisdiction).
As stated above, county courts have exclusive jurisdiction
in guardianship and conservatorship matters. Moreover, they
have concurrent jurisdiction in matters related to the acts taken
under a durable POA.
[9] In 2012, the Legislature enacted the Nebraska Uniform
Power of Attorney Act, see Neb. Rev. Stat. §§ 30-4001 to
30-4045 (Reissue 2016 & Cum. Supp. 2022) (NUPOAA). See
2012 Neb. Laws, L.B. 1113. The Nebraska Supreme Court
explained:
The NUPOAA conferred concurrent jurisdiction on
the county court and the district court “to determine
the validity and enforceability of a [POA].” But the
NUPOAA also greatly expanded the statutory scope: The
Uniform Law Commission “designed the [uniform act] to
be comprehensive in nature, addressing the many issues
that arose with the increased utilization of the durable
[POA].” And among the statutory provisions included
in the NUPOAA was one authorizing a “petition [to] a
court to construe a [POA] or review the agent’s conduct
and grant appropriate relief.” Thus, when the NUPOAA
conferred concurrent jurisdiction “to determine the valid-
ity and enforceability of a [POA],” it did so in a much
- 544 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535broader context than the same words had conveyed under
the [Uniform Durable Power of Attorney Act].
In re Estate of Adelung, 306 Neb. at 661, 947 N.W.2d at 284.
Here, the transfer of the 48th Street house was made pursu-
ant to Malachi’s POA. He sought to have that action confirmed
in the guardianship and conservatorship action. Because the
county court has exclusive jurisdiction in probate matters and
concurrent jurisdiction under the NUPOAA to “review the
agent’s conduct and grant appropriate relief,” see § 30-4016(1),
we determine that the county court had jurisdiction to rule on
the motion pursuant to § 24-517(2), (3), and (13).
Sufficiency of Evidence.
Valorie assigns that the evidence was insufficient to deter-
mine that the transfer of the 48th Street house to Malachi was
proper. In her objection to the motion to confirm the transfer of
the house, Valorie asserted that due to Elizabeth’s “5-year his-
tory of gradually progressive cognitive and functional decline,”
she “did not have the capacity to transfer the home.” Because
the transfer was made pursuant to Elizabeth’s will and POA,
we turn first to Elizabeth’s capacity during the time period
when those documents were executed.
The evidence reveals that Elizabeth executed a will in 2018
which provided for the devise of the 48th Street house to
Malachi. Malachi testified that Elizabeth drew the will up her-
self and had his wife type it. Elizabeth then took it to the credit
union to have it properly executed in April 2018.
On October 14, 2019, Elizabeth signed a POA appointing
Malachi as her attorney in fact. Although the record indicates
that there were conversations with physicians in 2016 regard-
ing potential dementia, the record is sufficient to find that at
the time Elizabeth executed her will and the POA, she had the
mental capacity to do so.
Both Malachi and John testified that Elizabeth was aware
of her actions at the time of her 2019 hospitalization, and the
discharge summary indicates that although she was diagnosed
- 545 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535with vascular dementia, it was without behavioral disturbances.
Valorie admitted that the first medical opinion she had that her
mother was incapacitated was as of May 8, 2020, years after
Elizabeth executed her will and months after she signed the
2019 POA. Therefore, the evidence is sufficient to determine
that Elizabeth had the mental capacity to execute her will and
the 2019 POA.
On appeal, Valorie argues that it was Malachi’s burden to
prove that he acted in the best interests of their mother and did
not use his position to act for his own benefit or that of a third
party in a substantially gratuitous transfer. She implies that
based upon the transfers of Elizabeth’s property, Malachi failed
to meet this burden. We disagree.
When it was determined that Elizabeth was unable to return
home following her stay at the rehabilitation facility, Malachi
was advised by the business office at that facility, as well as
the business offices at several other long-term care facilities,
that he should distribute his mother’s assets pursuant to her
will in order to make Elizabeth eligible for Medicaid. Malachi
distributed the 48th Street house to himself through a war-
ranty deed, as provided for in the will. The record does not
support a finding that Malachi breached any fiduciary duty
owed to his mother by doing so. See Crosby v. Luehrs, 266
Neb. 827, 669 N.W.2d 635 (2003) (finding constructive trust
may be imposed when agent in fact breaches fiduciary duty).
Rather, he acted in accordance with the provisions of the will
in making the distributions. The fact that he did so prior to
Elizabeth’s death, without more, does not translate to a deter-
mination that he acted contrary to Elizabeth’s best interests.
In fact, Malachi testified that he transferred the Miami Street
house to Christopher prior to deeding himself the 48th Street
house because he wanted to make sure Elizabeth was not
going to return to the 48th Street house to live.
Based upon our review of the record, we find the evidence
sufficient to confirm the transfer of the 48th Street house
to Malachi.
- 546 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE GUARDIANSHIP OF ELIZABETH C.
Cite as 31 Neb. App. 535Receiving Will Into Evidence.
Valorie objected on the basis of foundation when Malachi’s
attorney offered Elizabeth’s will into evidence. The court
overruled the objection. On appeal, she argues that “[p]roper
foundation needed to be laid and without it, it should not have
been received into evidence by the Court. [Valorie] was preju-
diced by the Court receiving the will into evidence and using
the will as an evidentiary basis to confirm the transfer.” Brief
for appellant at 10. However, Valorie does not explain what
foundation was lacking.
Prior to offering the will into evidence, counsel provided it
to Malachi and he identified it as Elizabeth’s will. He testified
that after Elizabeth went to the hospital, he retrieved her will
from her house and put it in the safe. He knew to find it under
the television stand because Elizabeth told him that was where
it was located. He then relayed conversations he and Elizabeth
had about the will’s contents before the will was offered and
received into evidence. We find no abuse of discretion in the
court’s receipt of the will into evidence.
CONCLUSION
We determine that the county court had jurisdiction to
address the motion to confirm the transfer of the 48th Street
house to Malachi. Further, we find that the evidence was suffi-
cient to confirm the transfer and that there was no error in the
court’s receipt of Elizabeth’s will into evidence. Accordingly,
we affirm the order of the county court.
Affirmed.