In re Guardianship of Novacek ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE GUARDIANSHIP OF NOVACEK
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE GUARDIANSHIP OF GLORIA JUNE NOVACEK, AN INCAPACITATED PERSON.
JASON D. NOVACEK ET AL., APPELLEES,
V.
JODY L. NOVACEK, APPELLANT.
Filed November 22, 2022. No. A-22-201.
Appeal from the County Court for Adams County: MICHAEL P. BURNS, Judge. Affirmed.
Jody Novacek, pro se.
Pierce D. Fiala, of Skalka, Baack & Fiala Law Firm, for appellee, Jason D. Novacek.
MOORE, RIEDMANN, and BISHOP, Judges.
RIEDMANN, Judge.
INTRODUCTION
An adult child of an incapacitated person appeals the decision of the county court for
Adams County establishing a permanent guardianship and conservatorship for her mother. She
assigns several errors relating to both the temporary order and permanent order of guardianship
and conservatorship. We affirm.
BACKGROUND
Jason D. Novacek, son of Gloria June Novacek, filed a petition for the establishment of a
temporary and permanent guardianship for his mother, Gloria, on April 28, 2021, and requested
that his brother, Jay M. Novacek, be appointed as guardian and conservator. The petition identified
Gloria’s four children: Jason, Jay, James P. Novacek, and Jody L. Novacek. It alleged that an
emergency existed and requested that a temporary guardian and conservator be appointed pending
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notice and hearing on the petition for a permanent guardian and conservator. It asserted Gloria
required assistance in making decisions about her well-being, in making arrangements for medical
care, and was an impressionable person with a history of being financially abused. Jason filed his
own affidavit and an affidavit of his wife in support of his ex parte application.
The court entered an order on April 29, 2021, appointing Jay as temporary guardian and
conservator. It found an emergency existed because Gloria is an incapacitated person under the
Nebraska Probate Code and requires assistance with arranging medical care, financial transactions,
maintaining her overall safety, and protecting herself from being taken advantage of financially.
The court appointed Sara J. Bockstadter as guardian ad litem (GAL) for Gloria on May 10,
2021. She was appointed special process server for purposes of delivering the pleadings to Gloria.
On May 28, Bockstadter served Gloria with a copy of the petition for appointment of temporary
guardian and conservator and permanent guardian and conservator, order appointing a GAL, order
appointing special process server, order appointing temporary guardian and temporary
conservator, letters of temporary guardian and temporary conservator, and an objection to the
appointment of a temporary guardian and temporary conservator with notice of hearing. We do
not have a copy of the objection in our record, but it appears that an objection to the petition for
appointment was filed by Jody.
On June 7, 2021, Jody filed a motion to withdraw her objection to the appointment of a
temporary guardian and temporary conservator. On June 11, the court extended the temporary
orders and letters until October. The hearing on Jason’s petition for guardian and conservator was
scheduled for September 24 and October 1. This was later continued to January 21, 2022, upon
Jody’s request for additional time to prepare a response to the GAL’s report. Discovery was to be
completed by November 30, 2021. The parties entered into a stipulation on January 6, 2022, for
release of medical records from Dr. Lorraine Edwards and Dr. Paul Wibbels, subject to a protective
order.
Jody filed a motion to continue the trial on January 19, 2022, for the reason that she had
not received medical records from the facility in which Gloria was living. Following a hearing, the
court denied the motion, but ordered that the GAL provide copies of the medical records she
received from the facility by the next morning, January 20. Trial proceeded on January 21 and the
court received into evidence the May 6, 2021, through January 20, 2022, notes of the assisted
living facility in which Gloria was residing, Edwards’ notes from March 10, 2017, through August
7, 2020, and Wibbels’ notes from April 18, 2019, through June 7, 2021. The following evidence
was adduced.
Jason is Gloria’s youngest child. He first noticed Gloria having memory issues before his
father passed away in January 2019. Gloria had been diagnosed with dementia and Alzheimer’s in
2017. He noticed a significant decline in Gloria’s cognitive functioning between August 2020 and
April 2021. During that time, Gloria was living in an apartment complex. In February 2021, Jason
observed evidence near the front and back doors of Gloria’s apartment indicating that Gloria had
been scooping out the contents of her toilet and disposing of it in her yard. He was advised by the
maintenance staff that Gloria was putting items down the toilet, causing it to stop up. They
indicated that they may contact adult social services due to their concern that she was unable to
care for herself.
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Gloria acknowledged that she had memory issues, so she and Jason began investigating
different places in the area where she might ultimately live. They viewed the facility where she
currently resides on several occasions as a potential placement. On April 20, 2021, Jason
accompanied his mother to the facility for her to apply for admission. Jason’s brother, Jay, had
been appointed power of attorney for Gloria in 2019, but because he lived in Texas, Jason
facilitated finding Gloria a place to live. Gloria signed the paperwork that day to move in on
April 22.
On April 22, 2021, Jody provided the facility with a document purporting to appoint her as
her mother’s attorney-in-fact that had been signed the prior day. She advised the executive director
of the facility, Jessica Soucie, that Gloria would not be residing there. Soucie described Jody’s
behavior as “very escalated” and “verbally disrespectful.” Consequently, Soucie asked her to leave
the building. Gloria did not move in until May 6.
Jason filed the petition for appointment of a guardian and conservator on April 28, 2021,
and recommended Jay to fill those roles because Jay had been appointed Gloria’s attorney-in-fact
with the agreement of all the children. Because of this, Jason thought Jay was the natural choice
for appointment. He was aware that Jody preferred that Gloria live with her.
Jason opined that it was in Gloria’s best interests that Jay be appointed her guardian and
conservator. When asked if Gloria living with Jody would be an option, Jason responded, “I don’t
believe my mother would enjoy that at all. In fact, she has made statements to me that she does not
want to live with Jody.” He elaborated that there was over a 20-year period of time from 1996
through 2016 in which Jody refused to have contact with their parents.
Bockstadter, an attorney, is the court-appointed GAL for Gloria. She was also appointed
as the special process server, so she delivered the pleadings to Gloria. Additionally, based upon
conversations with Gloria, she authored a report regarding Gloria’s mental capacity and offered
an opinion as to whether she should be appointed a guardian and conservator. In making that
decision, she also obtained Gloria’s medical records and visited with people in Gloria’s life.
Bockstadter opined that it was in Gloria’s best interest that she continue to reside in the facility in
which she currently resides and that a full guardian and conservator be appointed for her. She
further opined that Jay was a proper person to be appointed. She did not believe that Jody could
provide the necessary care for Gloria on a long-term basis.
Jay lives in Joshua, Texas, and was appointed the temporary guardian and conservator on
April 29, 2021. In that position, he has restricted Jody’s contact with Gloria on two occasions.
When Soucie originally banned Jody from the facility in April 2021, Jay requested that she be
allowed to visit, but requested that Jody not be allowed to remove Gloria from the facility. On May
7, 2021, Jay learned that Jody had upset Gloria by telling her that her sons were taking all of her
money. Consequently, Jay restricted Jody’s contact with Gloria, but within a couple of days he
called the facility to ask that her contact be unrestricted as long as it was in Gloria’s best interest.
In October, the facility began requiring that all of Jody’s visits be supervised because Gloria was
upset and confused following visits from Jody.
Jay opined that his mother needed a permanent guardian and conservator and that he was
a suitable person to serve those roles. To have Gloria move in with Jody and have nursing staff
come to the house “would be a horrible situation” because Gloria has a hard time remembering
Soucie, who she sees nearly every day. Having multiple care providers would be more confusing
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to Gloria. And Jay believed it would be “impossible” for Jody to do it on her own 24 hours a day,
365 days a year.
Soucie, the executive director of the assisted living facility in which Gloria was residing at
the time of trial, testified that she has a bachelor’s degree in psychology, a master’s degree in
mental health therapy, and is a licensed nursing home administrator and certified dementia
practitioner. She first met Gloria when Gloria came to the facility with Jason and his daughter to
complete paperwork for residency at the facility. Based upon her interaction with Gloria at that
time, Soucie concluded that Gloria would qualify for assisted living but that memory care
treatment was something to keep in mind. At the time of trial, Gloria was living on the memory
care floor. Gloria is 83 years of age.
Soucie testified that Gloria is unable to care for herself and requires “24/7 care.” The
facility has implemented a care plan in which staff checks on her every 2 hours during waking
hours and every hour at night to deal with issues regarding Gloria barricading her door, spreading
feces, and dumping her commode in inappropriate places. In Soucie’s professional opinion, Gloria
is cognitively impaired and shows many of the typical traits of having dementia. She further opined
that based upon her observations, Jay would be a proper person to serve as Gloria’s guardian and
conservator and that such appointment would be in Gloria’s best interest.
Soucie further testified that she believed living in the memory care unit was the least
restrictive alternative to maintaining Gloria’s success. She explained that living with Jody would
diminish Gloria’s quality of life because of caregiver burnout and that it would be difficult for one
person to provide all of the services that a facility does.
Jody testified that she lives in the same city as her mother. Jody operates a seasonal
fireworks stand and an online retail company. She disputed Jason’s testimony that there was a
20-year period of time when she did not have contact with her parents but conceded there have
been “periods of time” when she was not in contact with them. She requested that Gloria be
allowed to live with her rather than have a guardian appointed for her. She also suggested that a
bill-paying service could be set up rather than having a conservator appointed. Jody admitted to
having been convicted of fraud as it related to her business dealings.
The court entered a written order finding that clear and convincing evidence supported that
a permanent, full guardianship and conservatorship was in the best interest of Gloria. It further
determined that Jay was best suited to be appointed. It granted the petition for guardianship and
conservatorship. Jody appeals.
ASSIGNMENTS OF ERROR
Jody assigns eight errors, which, restated and consolidated are as follows. The county court
erred in (1) scheduling a hearing on the petition for appointment of temporary guardian and
conservator and permanent guardian and conservator without notice to her and Gloria, (2)
appointing a temporary guardian and conservator without an evidentiary hearing, (3) failing to
limit the letters of temporary guardianship and conservatorship to the emergency issues, (4) failing
to assign a qualified visitor or physician to evaluate Gloria, (5) failing to require Gloria be served
copies of all documents, and (6) failing to grant Jody’s motion to continue.
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STANDARD OF REVIEW
Standing is a jurisdictional component of a party’s case because only a party who has
standing may invoked the jurisdiction of a court. In re Guardianship of Barnhart, 290 Neb. 314,
859 N.W.2d 856 (2015). The question of jurisdiction is a question of law. Id. When reviewing
questions of law, we resolve the questions independently of the conclusion reached by the lower
court. Id.We review a decision denying a motion for a continuance for abuse of discretion. Weiss v.
Weiss, 260 Neb. 1015, 620 N.W.2d 744 (2001).
ANALYSIS
Jason asserts that we do not have jurisdiction over this appeal. Citing In re Conservatorship
of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016), he argues that the Nebraska Supreme Court has
determined under Neb. Rev. Stat. § 30-1601(2) (Reissue 2016) a protected person’s child only has
standing to appeal a final order in a guardianship or conservatorship proceeding if the child filed
an objection, the court appointed a guardian or conservator, the court’s order affected a substantial
right of the child, and the child’s issues raised on appeal are limited to the sole issues resolved by
the final order. We disagree.
Jody filed an objection to the appointment of a temporary guardian and conservator, and
although that objection was subsequently withdrawn, she remained an objector. Her status is
evidenced by the record. At the beginning of the hearing on January 21, 2022, the court noted
appearances, stating “We have an interested party – an objecting party – to the proposed or
nominated individual to be the permanent guardian and conservator, Ms. Jody Novacek, present
with her attorney.” Jody was also recognized by Jason’s attorney as an objecting party at trial when
he stated to the court that “[t]he objecting party, Jody Novacek, has not requested to be appointed
as guardian or conservator.” However, due to the absence of a filed objection, Jason contends Jody
is without standing to appeal.
Standing is a jurisdictional component of a party’s case because only a party who has
standing may invoke the jurisdiction of a court. The question of jurisdiction is a question of law.
In re Guardianship of Barnhart, supra. Section 30-1601(2) states “An appeal may be taken by any
party and may also be taken by any person against whom the final judgment or final order may be
made or who may be affected thereby.”
It is true that in In re Conservatorship of Franke, 292 Neb. at 923, 875 N.W.2d at 417, the
Supreme Court stated “So, under our implicit interpretation of § 30-1601(2), a protected person’s
close family members have the right to appeal from a final order in a conservatorship proceeding
if they filed an objection and the county court appointed a conservator.” However, the court also
acknowledged that “The conservatorship statutes do not explicitly authorize any person to object
to a conservatorship appointment. But as relevant here, they do require notice of a petition for a
conservator to the subject’s adult children and a hearing before making an appointment.” Id. at
922, 875 N.W.2d at 417.
Because the statutes do not explicitly authorize an objection, they also do not specify how
one must be made. It is apparent from the bill of exceptions that Jody was recognized as an
objector; therefore, we reject Jason’s argument that her failure to file a written objection translates
to an absence of standing.
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Jason also contests Jody’s standing, arguing that none of her issues raised on appeal address
the issues actually resolved by the county court. We agree that Jody’s assigned errors relate
primarily to procedures used by the county court and do not explicitly challenge the court’s
ultimate order appointing Jay as Gloria’s guardian and conservator. That does not preclude this
court’s jurisdiction, but it does affect our analysis of this appeal in that we are limited to a review
of Jody’s specific assignments of error. See In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118(1995) (appellate review limited to errors specifically assigned unless court notices plain error).
Assignments of Error Related to Temporary Order.
Jody’s first five assignments of error relate to the order appointing Jay as the temporary
guardian and conservator. She takes issue with the court’s scheduling of a hearing on the petition
24 hours after it was filed and without proper notice to the parties, the language of the court’s
temporary order indicating notice was given or waived, the holding of a temporary appointment
hearing without notifying Gloria, the order’s language stating the temporary appointment was
necessary due to an emergency and that Gloria was incapacitated without an evidentiary hearing,
and the court’s failing to limit the letters of temporary guardianship and conservatorship to address
the emergency issue.
Notwithstanding the provisions of Neb. Rev. Stat. § 30-2626 (Reissue 2016) that allows a
temporary guardian to be appointed “pending notice and hearing,” the issues related to the
temporary order are moot. A matter becomes moot when the issues initially presented in the
litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of
litigation, or when the litigants seek to determine a question which does not rest upon existing facts
or rights, in which the issues presented are no longer alive. See In re Trust Created by Nabity, 289
Neb. 164, 854 N.W.2d 551 (2014). See, also, Swoboda v. Volkman Plumbing, 269 Neb. 20, 690
N.W.2d 166 (2004).
In In re Trust Created by Nabity, supra, the court explained that in the case of a temporary
order later replaced by a permanent order, the question whether it was issued in error was relevant
only from the time it was ordered until it was replaced by the permanent order. Therefore, in an
appeal from the permanent order, any issue relating to the temporary order is moot and need not
be addressed. Id.
Because Jody’s first five assigned errors relate to the temporary order which has now been
replaced by the permanent order, they are moot and we need not address them.
Qualified Visitor.
Jody argues that the court erred when it did not assign a qualified visitor to evaluate
Gloria’s capacity to live independently while still in her apartment. She further argues that it failed
to assign a physician who specialized in short-term memory to evaluate Gloria.
Neb. Rev. Stat. § 30-2619.01 (Reissue 2016) states “[f]ollowing the filing of a petition, the
court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of
incapacity.” The appointment of a visitor is within the court’s discretion. In re Guardianship of
Gilmore, 11 Neb. App. 876, 662 N.W.2d 221 (2003). Similarly, the court may appoint a physician
to examine the alleged incapacitated person. Neb. Rev. Stat. § 30-2619(c) (Reissue 2016).
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Our record fails to indicate that Jody raised this issue in the county court. It contains no
request for appointment of a visitor or a physician, nor did Jody object to proceeding with the trial
in the absence of one or both of them being appointed. An appellate court will not consider an
issue on appeal that was not passed upon by the trial court. In re Guardianship of Suzette G., 27
Neb. App. 477, 934 N.W.2d 195 (2019). Therefore, we do not address this assigned error.
Alleged Failure to Serve Gloria With All Pleadings.
Jody argues that the court erred when it did not require Gloria to be served copies of all
documents related to this matter. However, she does not indicate what pleadings were not served
on Gloria. According to the proof of service filed by Bockstadter, she served all of the preliminary
pleadings through May 28, 2021, on Gloria. To the extent Gloria may not have been served with
pleadings after that date, Jody did not raise this issue in the county court. An appellate court will
not consider an issue on appeal that was not passed upon by the trial court. Id.Denial of Jody’s Motion to Continue.
Jody’s final assignment of error is that the court erred when it denied her motion to continue
filed on January 19, 2022. Jody filed the motion to continue because she had not received the
medical records obtained by the facility in which Gloria was living. Rather than continue the trial,
the court ordered that the GAL produce the medical records by 9 a.m. on January 20. Trial began
on January 21. Jody asserts that the denial of her motion denied her “due process to bring in
medical experts, the cornerstone of her case.” Brief for appellant at 24.
Whether to grant a continuance lies in the discretion of the court. Weiss v. Weiss, 260 Neb.
1015, 620 N.W.2d 744 (2001). Factors to consider include (1) the number of continuances granted
to the moving party, (2) the importance of the issue presented in the matter, and (3) whether the
continuance was being sought for a frivolous reason or dilatory motive. Id.Jody requested and received one prior continuance on October 1, 2021, for the purpose of
preparing for “findings” contained in the GAL report. The initial GAL report revealed that Gloria
was incapacitated “per Paul C. Wibbels, M.D.” It further identified the health care facilities whose
records the GAL reviewed and recommended a full guardianship. The court set a discovery
deadline of November 30. It does not appear that Jody engaged in any discovery from October 1
to November 30 in an attempt to obtain the records from the facilities themselves. On January 6,
2022, the parties stipulated to a release of Edwards’ and Wibbels’ records.
In the court’s order denying the continuance, it ordered the GAL to provide both counsel
with copies of the medical records that she retrieved from the care facility “which supplement
medical records which were originally attached to her report.” Accordingly, it appears that Jody
had some medical records as of October 1, 2021, when she received the GAL’s report. Any need
for rebuttal medical testimony would have been known at that time; therefore, we reject her
argument that the delay in receiving the additional records violated her due process to bring in
medical experts. The denial of her motion for a continuance was not an abuse of discretion.
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CONCLUSION
Finding no error in the county court’s proceeding, we affirm the order appointing Jay as
Gloria’s permanent guardian and conservator.
AFFIRMED.
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