In re Guardianship & Conservatorship of J.F. , 307 Neb. 452 ( 2020 )

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
In re Guardianship and Conservatorship of J.F.,
a child under 18 years of age.
Gerald F., appellant, v. Misty B., appellee.
___ N.W.2d ___
Filed October 9, 2020. No. S-19-1123.
1. Estates: Appeal and Error. An appellate court reviews probate cases
for error appearing on the record made in the county court.
2. Judgments: Appeal and Error. 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.
3. Guardians Ad Litem: Fees: Appeal and Error. In considering a trial
court’s order concerning the payment of guardian ad litem fees, the
allowance, amount, and allocation of guardian ad litem fees is a mat-
ter within the initial discretion of a trial court, involves consideration
of the equities and circumstances of each particular case, and will not
be set aside on appeal in the absence of an abuse of discretion by the
trial court.
4. Judgments: Words and Phrases. A judicial abuse of discretion exists
when a judge, within the effective limits of authorized judicial power,
elects to act or refrains from acting, but the selected option results in a
decision which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition through a
judicial system.
5. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
6. Costs. Under Nebraska law, the costs of litigation and expenses incident
to litigation may not be recovered unless provided for by statute or a
uniform course of procedure.
7. ____. Whether costs and expenses are authorized by statute or by the
court’s recognition of a uniform course of procedure presents a question
of law.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
8. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
9. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
10. Statutes: Legislature: Intent. It is a court’s duty to discover, if pos-
sible, legislative intent from the statute itself.
11. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
12. Statutes: Legislature: Intent. Repeal by implication is strongly disfa-
vored, unless made necessary by the evident intent of the Legislature.
13. Statutes. A statute will not be considered repealed by implication unless
the repugnancy between the new provision and the former statute is
plain and unavoidable.
14. Statutes: Legislature: Intent. In determining whether a new enactment
is repugnant, a court looks at the new enactment for any indication of an
evident legislative intent to repeal the former statute.
15. ____: ____: ____. In the absence of clear legislative intent, the construc-
tion of a statute will not be adopted which has the effect of nullifying or
repealing another statute.
16. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
17. ____. In order to be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
Appeal from the County Court for Holt County: Kale B.
Burdick, Judge. Affirmed.
Charles W. Balsiger, of Carney Law, P.C., for appellant.
Brent M. Kelly, Holt County Attorney, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Gerald F. petitioned to be appointed guardian and conserva-
tor of a minor child. Gerald also moved for the appointment
of a guardian ad litem (GAL) to represent the interests of the
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307 Nebraska Reports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
minor child, which motion was sustained by the county court.
After trial, the court granted Gerald’s petition to be appointed
guardian and conservator. The court ordered Gerald to pay the
GAL’s reasonable fees and costs. Gerald appeals the order to
pay fees and costs, arguing that the court’s order was not statu-
torily authorized. Because the court had statutory authority to
order the petitioner to pay a GAL’s reasonable fees and costs in
a proceeding to appoint a conservator, we affirm.
BACKGROUND
On July 18, 2018, Gerald filed a petition in the county court
for Holt County seeking to be appointed temporary and per-
manent guardian and conservator of J.F, a minor child. Gerald
alleged that J.F.’s biological mother, Misty B., is unable to
properly care for him. Gerald stated that he believed he was
J.F.’s biological father until a paternity test was completed in
May 2018, showing he was not. He alleged that he raised J.F.
as his son and has lived with him since birth and that he is
concerned Misty will move him to Idaho to live with his grand-
mother. That day, the county court issued an order appointing
Gerald as temporary guardian and conservator and setting the
matter of permanent appointment for a hearing.
On July 24, 2018, Gerald filed a motion for the appointment
of a GAL. Though Gerald’s motion is not in our record, the
court referenced the motion in its written order sustaining the
motion and appointing an attorney as GAL.
The order stated that on July 16, 2018, unbeknownst to the
court, Misty filed in the district court a petition and affidavit
to obtain a domestic abuse protection order against Gerald.
Gerald was personally served that same afternoon with Misty’s
petition and an order to show cause. On July 23, the district
court held a hearing and entered a domestic abuse protection
order against Gerald, under which Misty and J.F. were pro-
tected parties. Under the protection order, Gerald was prohib-
ited from having contact with J.F.
The county court found that the granting of the protec-
tion order raised a conflict and vacated its order appointing
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307 Nebraska Reports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
Gerald as temporary guardian and conservator and issued a
new order appointing Gerald as temporary conservator. The
court stated that the competing cases appeared to present a cus-
tody dispute, and as a result, the court found that J.F.’s interests
were inadequately represented and appointed the GAL pursuant
to Neb. Rev. Stat. § 30-2222(4) (Reissue 2016).
On August 13, 2018, the district court issued a modified
protection order removing J.F. as a protected party.
On August 14, 2018, in the county court, Misty filed an
objection to guardianship and a motion to dismiss. After a
hearing on Misty’s objection and motion to dismiss, the court
overruled both motions. The county court then held a trial on
the merits on January 24 and 28, 2019. In February, the court
granted Gerald’s petition and appointed him as J.F.’s permanent
guardian and conservator over Misty’s objection.
On May 6, 2019, the GAL filed an application for payment
of fees and costs, with an affidavit and itemized invoice stat-
ing that $10,665.57 was incurred for services provided from
July 25, 2018, to February 7, 2019. The court granted the
GAL’s application and ordered that pursuant to Neb. Rev. Stat.
§ 30-2620.01 (Reissue 2016), the GAL’s fees in the amount of
$10,665.57 shall be paid by the ward’s estate, if the ward pos-
sesses an estate: “If not, those fees shall by paid by the peti-
tioner, as the petitioner requested the appointment of the GAL,
and no evidence has been adduced to support a finding that the
fees be paid by the county.”
On June 13, 2019, Gerald moved to set aside the court’s
order, arguing that he was not made aware of the GAL’s appli-
cation or the hearing. On July 2, the court held a hearing where
Gerald testified that he did not receive notice of the June 4
hearing. Gerald argued that because Misty contested the guard-
ianship and conservatorship, she should be responsible for the
GAL’s fees. However, Gerald did not contest the amount of the
GAL’s fees or whether the fees were reasonable.
The court stated that it appointed the GAL at Gerald’s
request and that while it agreed that Misty should be held par-
tially responsible, under the language of § 30-2620.01, only
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307 Nebraska Reports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
J.F., Holt County, or Gerald could be held responsible. The
court denied Gerald’s motion to set aside.
On September 6, 2019, the GAL moved to compel Gerald to
comply with the order for payment of fees and costs. The GAL
further moved for an order finding Gerald in contempt for fail-
ing to comply with the court’s June 4 order. The court found
the GAL’s motions were premature and scheduled a hearing
to determine whether J.F. possessed an estate and whether any
such estate could pay the GAL’s fees.
At the hearing, Gerald claimed that 2016 Neb. Laws, L.B.
934, repealed by implication § 30-2620.01 and Neb. Rev. Stat.
§ 30-2643 (Reissue 2016) and that therefore, Holt County
should be responsible for the GAL’s fees. Gerald argued that
the matter is instead controlled by Neb. Rev. Stat. § 30-4210
(Reissue 2016), which allows for payment of fees by the
county where the protective proceeding is brought, or by the
person who is the subject of the protective proceeding, and
does not allow for payment by the petitioner. Holt County
objected, stating that it was not a party to the proceedings, that
the case concerns a civil matter in which the county has no
interest, and that the county had no opportunity to object to the
appointment of a GAL.
Following the hearing, the court found that J.F. did not pos-
sess an estate from which the GAL’s fees could be paid. The
court also found that the issue was controlled by §§ 30-2620.01
and 30-2643 and that based on the terms of those provi-
sions, the GAL’s fees “shall be paid by the county in which
the proceedings are brought or by the petitioner as costs of
the action.”
The court found that §§ 30-2620.01 and 30-2643 had not
been repealed by implication or otherwise. The court further
found that § 30-4210, which pertains to payments for court-
ordered evaluations of the person who is the subject of the
guardianship or conservatorship, did not apply to the services
described in the GAL’s application. The court stated that the
case was a private custody dispute and that private parties
should expect to pay the costs associated with their litigation,
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
rather than the taxpayers of Holt County. The court found that
because Gerald requested appointment of a GAL, and because
Holt County did not have an interest and did not participate in
the proceedings, Gerald, as the petitioner, must pay the GAL’s
fees and costs.
Gerald filed an appeal. Holt County filed a brief in opposi-
tion. We moved the case to our docket on our own motion.
ASSIGNMENT OF ERROR
Gerald assigns, restated, that the county court lacked statu-
tory authority to order him to pay the GAL’s fees and costs.
STANDARD OF REVIEW
[1,2] An appellate court reviews probate cases for error
appearing on the record made in the county court. 1 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, capri-
cious, nor unreasonable. 2
[3,4] In considering a trial court’s order concerning the
payment of GAL fees, the allowance, amount, and allocation
of GAL fees is a matter within the initial discretion of a trial
court, involves consideration of the equities and circumstances
of each particular case, and will not be set aside on appeal
in the absence of an abuse of discretion by the trial court. 3
A judicial abuse of discretion exists when a judge, within the
effective limits of authorized judicial power, elects to act or
refrains from acting, but the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a
substantial right or a just result in matters submitted for dispo-
sition through a judicial system. 4
1
In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716
N.W.2d 681 (2006).
2
Id.
3
Id.
4
Id.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
[5] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 5
ANALYSIS
[6,7] The narrow issue presented to us is whether the county
court was authorized to order Gerald to pay the GAL’s reason-
able fees and costs. Under Nebraska law, the costs of litigation
and expenses incident to litigation may not be recovered unless
provided for by statute or a uniform course of procedure. 6
Whether costs and expenses are authorized by statute or by the
court’s recognition of a uniform course of procedure presents a
question of law. 7
[8-11] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in its
plain, ordinary, and popular sense. 8 It is not within the province
of the courts to read a meaning into a statute that is not there or
to read anything direct and plain out of a statute. 9 It is a court’s
duty to discover, if possible, legislative intent from the statute
itself. 10 The intent of the Legislature is expressed by omission
as well as by inclusion. 11
Here, the court assessed the GAL’s fees to Gerald pursuant
to §§ 30-2620.01 and 30-2643 under the Nebraska Probate
Code. Section 30-2620.01 provides in pertinent part:
The reasonable fees and costs of an attorney, a [GAL],
a physician, and a visitor appointed by the court for the
person alleged to be incapacitated shall be allowed,
5
In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).
6
Id.
7
Id.
8
Id.
9
Id.
10
In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
11
In re Estate of Hutton, supra note 5; In re Adoption of Kailynn D., supra
note 10.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
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.
(Emphasis supplied.) Section 30-2643 provides in perti-
nent part:
The reasonable fees and costs of an attorney, a [GAL],
a physician, a conservator, a special conservator, and a
visitor appointed by the court for the person to be pro-
tected 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.
The county court was incorrect to rely upon § 30-2620.01,
because that provision does not apply to an award of fees and
costs in a guardianship proceeding for a minor. 12 Under article
26 of the Nebraska Probate Code, there are three distinct
sections of statutes that apply respectively to (1) a guardian-
ship proceeding for a minor, 13 (2) a guardianship proceeding
for an incapacitated person, 14 and (3) a conservatorship pro-
ceeding for a person under a disability or a minor. 15 Section
30-2620.01 establishes a recognized uniform course of pro-
cedure for the assessment of fees and costs to pay a court-
appointed GAL in a guardianship proceeding for an inca-
pacitated person. An incapacitated person is defined as any
12
See, e.g., In re Guardianship & Conservatorship of Alice H., 303 Neb.
235, 927 N.W.2d 787 (2019); In re Guardianship of Brydon P., 286 Neb.
661, 838 N.W.2d 262 (2013); In re Guardianship & Conservatorship of
Karin P., supra note 1.
13
Neb. Rev. Stat. §§ 30-2605 to 30-2616 (Reissue 2016 & Cum. Supp.
2018).
14
Neb. Rev. Stat. §§ 30-2617 to 30-2629 (Reissue 2016).
15
Neb. Rev. Stat. §§ 30-2630 to 30-2661 (Reissue 2016 & Cum. Supp.
2018).
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
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person who is impaired by reason of mental illness, mental
deficiency, physical illness or disability, chronic use of drugs,
chronic intoxication, or other cause (except minority) to the
extent that the person lacks sufficient understanding or capac-
ity to make or communicate responsible decisions concerning
himself or herself. 16 Section 30-2620.01 is inapplicable based
on the facts and circumstances of this case.
Here, the court was not authorized to assess the GAL’s fees
against Gerald pursuant to § 30-2620.01, because the GAL
was appointed in a guardianship proceeding for J.F., who is
a minor and not an incapacitated person. As we explained in
In re Guardianship of Brydon P., 17 while the statutes govern-
ing a guardianship proceeding for a minor authorize a court
to appoint an attorney and a GAL for a minor whose interests
may be inadequately represented, 18 there is no statute govern-
ing minor guardianship proceedings which explicitly authorizes
a court to assess the fees and costs of appointed persons against
the ward’s estate, a petitioner, or a county.
In In re Guardianship of Brydon P., we found that § 30-2643
authorizes a court to assess fees and costs for a court-appointed
person in a conservatorship proceeding, but held that § 30-2643
does not provide for an award of fees and costs in a guardian-
ship proceeding for a minor. 19 Here, based on the plain and
ordinary language of § 30-2620.01, we hold that § 30-2620.01
does not provide for an award of fees and costs in a guardian-
ship proceeding for a minor.
However, the court made clear that it also relied upon
§ 30-2643 in assessing the GAL’s fees against Gerald. Holt
County contends that the court’s order was authorized under
§ 30-2643. We agree.
16
Neb. Rev. Stat. § 30-2601(1) (Reissue 2016).
17
In re Guardianship of Brydon P., supra note 12.
18
See, § 30-2222(4); § 30-2611(d).
19
In re Guardianship of Brydon P., supra note 12.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
Section 30-2643 authorizes a court to allow, disallow, or
adjust the payment of “reasonable fees and costs” of a GAL
for a protected person in a conservatorship proceeding. “A
protected person is a minor or other person for whom a con-
servator has been appointed or other protective order has been
made.” 20 Section 30-2643 provides that if a protected person
“possesses an estate,” the fees “may be paid from the estate.”
Section 30-2643 also provides that if the protected person 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 peti-
tioner as costs of the action.” Here, Gerald has not contested
the court’s finding that J.F. does not possess an estate from
which the GAL’s fees could be paid. As a result, the only issue
is whether Gerald or the county should be required to pay the
GAL’s fees.
The court found that the proceedings concerned a pri-
vate domestic dispute in which Holt County was in no way
involved. The court also found that the case did not concern
an interest of Holt County or involve a juvenile under the
jurisdiction of the juvenile court as defined by Neb. Rev. Stat.
§ 43-247 (Reissue 2016). The court went on to find that the
county should not be ordered to pay the fees. In this situation,
the language of § 30-2643 authorized the court to assess the
fees of a court-appointed GAL in a conservatorship proceeding
to the petitioner.
In In re Guardianship & Conservatorship of Karin P., 21 a
father filed a petition seeking appointment as guardian and
conservator for his adult child and the mother filed an objec-
tion and cross-petition seeking to be appointed as a limited
guardian. On appeal, we held that the county court did not
abuse its discretion in finding that both parties were petition-
ers and ordered the parties to split the GAL’s fees. Here, even
though Misty contested Gerald’s appointment as guardian
20
§ 30-2601(3).
21
In re Guardianship & Conservatorship of Karin P., supra note 1.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
Cite as 307 Neb. 452
and conservator, she did not seek to be appointed conserva-
tor. Also, as articulated by the county court, Gerald filed the
petition for guardianship and conservatorship in this case.
As such, the court correctly found that Gerald is a petitioner
within the meaning of § 30-2643. Additionally, the court stated
that Gerald should be responsible for the GAL’s fees rather
than the county, because Gerald moved for the appointment of
the GAL. Further, under Neb. Rev. Stat. § 30-2602(b) (Reissue
2016), when both guardianship and protective proceedings as
to the same person are commenced or pending in the same
court, the proceedings may be consolidated. As such, Gerald’s
petition seeking both a guardianship and conservatorship gave
the court authority to award fees under § 30-2643. On this
record, we find that the court’s order conforms to the law and
is supported by competent evidence.
Gerald also argues that § 30-2643 was implicitly repealed
and/or amended by § 30-4210. Gerald argues that § 30-2643 is
irreconcilable with § 30-4210, which was enacted into law by
2016 Neb. Laws, L.B. 934. The portion of § 30-2643 at issue
was enacted into law by 1993 Neb. Laws, L.B. 782. Gerald
argues, as the most recent enactment, § 30-4210 should prevail
over § 30-2643.
Section 30-4210 provides:
The court may order the cost of any evaluation as pro-
vided in section 30-4203 to be paid by the county where
the guardianship, conservatorship, or other protective pro-
ceeding is brought, or the court may, after notice and a
hearing, assess the cost of any such evaluation, in whole
or in part, to the person who is the subject of the guard-
ianship, conservatorship, or other protective proceeding.
The court shall determine the ability of such person to
pay and the amount of the payment.
[12-15] Repeal by implication is strongly disfavored, unless
made necessary by the evident intent of the Legislature. 22
22
Premium Farms v. County of Holt, 263 Neb. 415, 640 N.W.2d 633 (2002).
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.
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A statute will not be considered repealed by implication unless
the repugnancy between the new provision and the former stat-
ute is plain and unavoidable. 23 In determining whether the new
enactment is repugnant, we look at the new enactment for any
indication of an evident legislative intent to repeal the former
statute. 24 In the absence of clear legislative intent, the construc-
tion of a statute will not be adopted which has the effect of
nullifying or repealing another statute. 25
We find no indication that the Legislature intended to
repeal or amend § 30-2643 when it adopted 2016 Neb. Laws,
L.B. 934, and codified § 23 at § 30-4210. Further, based on
their plain and ordinary language, we find no repugnancy
between § 30-4210 and § 30-2643, because they apply in dis-
tinct circumstances.
Section 30-4210 authorizes a court to assess against a county
or protected person, but not the petitioner, the costs of a court-
ordered evaluation conducted by a GAL under Neb. Rev.
Stat. § 30-4203(2)(c) (Reissue 2016). Under § 30-4203(2)(c),
evalua­tions are referred to as medical, psychological, geriatric,
or any other evaluation of the person who is the subject of the
guardianship, conservatorship, or other protective proceeding
to determine the condition and extent of impairment, if any, of
the person who is the subject of the guardianship, conservator-
ship, or other protective proceeding. Here, we have not been
referred to any court-ordered evaluations in our record or any
evidence that the GAL’s fees included court-ordered evalua-
tions. The court correctly found that the GAL did not request
payment for any court-ordered evaluations and that § 30-4210
does not apply to the GAL’s application for fees.
[16] Even though we conclude here that the court acted
within its authority, it also seems clear that the outcome in
23
State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
24
Id.
25
Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d 339
(2000).
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this case could lead to situations in which a person in need
of protection is left without someone to initiate a proceeding
on his or her behalf. 26 Although this case concerned a conser-
vatorship for J.F., the vast majority of the dispute concerned
Gerald’s petition for guardianship of J.F. Had Gerald not also
sought to be appointed conservator, he would not have been
required to pay the GAL’s $10,665.57 in fees. This is so, even
though the dispute was civil in nature. However, Gerald did
not contest the amount of the GAL’s fees or whether the GAL’s
fees were reasonable. An appellate court will not consider an
issue on appeal that was not presented to or passed upon by
the trial court. 27
[17] Additionally, Gerald has not reasserted, on appeal, his
objection from his motion to set aside that he was not provided
notice of the GAL’s application for fees and costs or the hear-
ing on the application. In order to be considered by an appel-
late court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error. 28
CONCLUSION
In a guardianship proceeding for a minor, no statute or recog-
nized uniform course of procedure permits a court to assess the
fees of an appointed person against a ward’s estate, a county,
or a petitioner. In a conservatorship proceeding for a protected
person, the court is statutorily authorized to assess the fees of
an appointed person to the estate of the protected person if the
protected person possesses an estate or, if not, the county in
which the proceedings are brought or the petitioner.
Affirmed.
26
In re Guardianship of Brydon P., supra note 12, citing In re Guardianship
& Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001).
27
State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
28
In re Guardianship & Conservatorship of Forster, 22 Neb. Ct. App. 478, 856
N.W.2d 134 (2014).