In re Guardianship of Brydon P.

Nebraska Advance Sheets
IN RE GUARDIANSHIP OF BRYDON P. 661
Cite as 286 Neb. 661proceeding. Declaratory judgment actions obviously do not fit
that description.
Because the petitioner never “elect[ed]” not to get the con-
sent of a parent or a guardian to seek an abortion, the court
did not have jurisdiction to entertain her request for judicial
bypass under § 71-6903(2). I realize that this conclusion means
that none of the statutory exceptions apply and that under
§ 71-6902, the petitioner is prohibited from obtaining an abor-
tion. An absolute ban on the petitioner’s right to seek an abor-
tion obviously raises constitutional concerns. But the petitioner
did not challenge the statutes as unconstitutional.
McCormack, J., joins in this dissent.
In Guardianship of Brydon P., a child
re
under 18 years of age.
Silvija P., appellee and cross-appellant, v. Eric L.,
intervenor-appellant and cross-appellee.
___ N.W.2d ___
Filed October 11, 2013. No. S-12-1065.
1. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
2. Attorney Fees: Appeal and Error. A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the
Nebraska Supreme Court has recognized and accepted a uniform course of proce-
dure for allowing attorney fees.
3. ____: ____. When attorney fees are authorized, the trial court exercises its dis-
cretion in setting the amount of the fee, which ruling an appellate court will not
disturb on appeal unless the court abused its discretion.
4. Attorney Fees. Whether attorney fees are authorized by statute or by our recog-
nition of a uniform course of procedure presents a question of law.
5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an
appellate court judicially construes a statute and that construction fails to evoke
an amendment, the court presumes that the Legislature has acquiesced in its
determination of the Legislature’s intent.
6. Guardians and Conservators: Minors: Attorney Fees. When a court deter-
mines that a petitioner seeks a guardianship appointment for a minor in good
faith and that the guardianship is in the minor’s best interests, the court is statu-
torily authorized to assess a successful petitioner’s reasonable costs, including
attorney fees, against the minor’s estate, if an estate exists. In such cases, the
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662 286 NEBRASKA REPORTS
authorizing statute for the assessment is Neb. Rev. Stat. § 30-2613(1)(b) (Cum.
Supp. 2012).
7. ____: ____: ____. Under Nebraska’s guardianship statutes for minors, a county
court is not authorized to assess attorney fees against another party.
8. Courts: Jurisdiction: Equity. Although county courts lack general equity juris-
diction, they may apply equitable principles to matters that are within their exclu-
sive jurisdiction.
9. Actions: Parent and Child: Child Custody: Visitation: Standing. In the con-
text of a court action in which a nonparent seeks custody or visitation with the
child, in loco parentis is a standing doctrine. Its application depends upon the
circumstances in existence when the nonparent claims a child’s best interests lie
in allowing him or her to exercise parental rights.
10. Parent and Child. Once a person alleged to be in loco parentis no longer dis-
charges all duties incident to the parental relationship, the person is no longer in
loco parentis. Termination of the in loco parentis relationship also terminates the
corresponding rights and responsibilities afforded thereby.
11. Parent and Child: Guardians and Conservators: Minors: Child Custody:
Standing. Because the in loco parentis doctrine is transitory, whether a person
seeking guardianship of a minor should have standing to maintain custody if the
minor’s biological parent ever seeks custody in the future is an issue that cannot
be decided in advance of any dispute.
Appeal from the County Court for Sarpy County: Todd
J. Hutton, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings on the issue of fees.
Molly M. Blazek, of Law Office of Molly M. Blazek, for
intervenor-appellant.
Amy Sherman and William D. Gilner, of Sherman & Gilner,
P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
After Brydon P.’s mother died, the county court appointed
the appellee, Silvija P., to be his permanent guardian. Silvija
is Brydon’s maternal grandmother. The appellant, Eric L., is
Brydon’s adjudicated father. The court allowed Eric to inter-
vene. Although it appointed Silvija as Brydon’s permanent
guardian, it rejected her request for permanent in loco parentis
Nebraska Advance Sheets
IN RE GUARDIANSHIP OF BRYDON P. 663
Cite as 286 Neb. 661status. The court awarded Silvija attorney fees and assessed
them equally to Brydon’s estate and Eric.
In Eric’s appeal, we are asked to decide whether, in a guard-
ianship proceeding, a county court can assess a petitioner’s
attorney fees against another party. In Silvija’s cross-appeal,
the issue is whether a court can confer permanent in loco
parentis status to a party. We conclude that in a guardianship
proceeding for a minor, a court cannot assess a petitioner’s
costs against another party. Nor does the record show that the
court awarded fees under Neb. Rev. Stat. § 25-824 (Reissue
2008). We therefore reverse that part of the court’s order that
assessed Silvija’s attorney fees against Eric and remand the
cause for further proceedings. But we affirm the court’s deter-
mination that it could not confer permanent in loco parentis
status to Silvija.
BACKGROUND
Brydon was born in 1999. Eric and Brydon’s mother, Nicole
L., never married, and Eric does not have a familial relation-
ship with Brydon. But he has paid court-ordered child support
of $201 per month for Brydon since 2000.
Silvija provided financial support and childcare for Brydon
until Nicole married in 2010. Silvija continued to see Brydon
at least weekly after Nicole married.
In September 2011, Nicole and her husband were severely
injured in a vehicle accident and they were both hospitalized.
A few days after the accident, Silvija petitioned for an emer-
gency, temporary guardianship of Brydon.
Nicole died on October 9, 2011. She had not designated a
guardian for Brydon in a will. After Eric received notice of
Silvija’s guardianship request, he asked to intervene and for
therapeutic visitation and the appointment of a guardian ad
litem to represent Brydon’s interests. Therapeutic visitation
referred to an opportunity for Eric to establish a relationship
with Brydon.
The court allowed Eric to intervene and appointed a guard-
ian ad litem for Brydon. The court ordered Brydon and Eric
to be evaluated by a child therapist to determine whether their
introduction should occur and, if so, how to proceed. At a
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February 2012 status hearing, the court continued the tempo-
rary guardianship and permitted therapeutic visits if the thera-
pist and guardian ad litem approved them.
In June 2012, Silvija filed an “Amended Petition for
Adoption or in the Alternative for In Loco Parentis Status
and Custody or in the Alternative for Guardianship.” Silvija
alleged that Eric had not sought any relief since the court had
allowed him to intervene and that he had never met Brydon.
She asked the court to find that Eric had forfeited his paren-
tal rights and that it was in Brydon’s best interests to termi-
nate Eric’s rights and to allow Silvija to adopt him. Silvija
requested that the court alternatively find that she stood in loco
parentis to Brydon and grant her sole legal custody and control
of him, and “terminate the guardianship having found her to
be [Brydon’s] parent.” As a third alternative, Silvija requested
appointment as Brydon’s permanent guardian.
In July 2012, the court issued an order rejecting Silvija’s
request for adoption because she had not complied with
the statutory requirements or paid the filing fee. The court
accepted the amended petition only to consider her requests
for alternative relief: a finding that she stood in loco paren-
tis to Brydon or that she should be his permanent guardian.
It also appointed an attorney for Brydon. In his answer,
Eric responded that he had diligently participated with the
therapist and attempted to make contact with Brydon and
provide care.
In August 2012, Eric did not appear for a deposition. The
record contains e-mails between the attorneys that show when
the first therapeutic visit was scheduled between Eric and
Brydon, Silvija and Brydon arrived at the therapist’s office
early. When Brydon saw Eric outside the building, he did not
want to meet him. After Brydon’s court-appointed attorney
informed Eric that Brydon did not want to meet him, Eric
decided not to contest the guardianship. On the morning of the
scheduled deposition, Eric’s attorney e-mailed Silvija’s attor-
ney that he would not appear. She stated that Eric would with-
draw his petition and not contest the guardianship if the parties
agreed to make his contact information available to Brydon for
a future contact if Brydon changed his mind.
Nebraska Advance Sheets
IN RE GUARDIANSHIP OF BRYDON P. 665
Cite as 286 Neb. 661Eric did not appear at the trial on Silvija’s amended peti-
tion, but his attorney did. The parties stipulated that the court
should appoint Silvija as Brydon’s permanent guardian. But
they disputed the legality of her request for in loco parentis
status. In addition, they disputed whether the court had author-
ity to award Silvija attorney fees. The court continued the tem-
porary guardianship, gave the parties an opportunity to submit
briefs, and took the matter under advisement.
The court appointed Silvija to be Brydon’s permanent
guardian. In a separate order, it addressed Silvija’s request
for in loco parentis status, custody, and fees. The court found
that Eric had paid his child support but had not established
a familial relationship with Brydon and had never sought
custody or visitation before the guardianship proceeding. But
the court stated that Silvija’s argument—i.e., Eric’s parental
rights should be terminated—presumed that he was resisting
the guardianship, which was not the case. The court concluded
that it could decide the guardianship issues without decid-
ing whether Eric had forfeited his parental rights. It denied
Silvija’s request “to be declared in loco parentis and thereby
obtain sole care, custody and control of the minor child over
the objection of his natural father.” It stated that only the issue
of guardianship was presented because there was no pending
custody dispute.
The court concluded that in cases involving minor chil-
dren, as distinguished from incapacitated persons, Nebraska’s
statutes do not authorize an assessment of fees for a court-
appointed attorney or guardian ad litem. But under In re
Guardianship & Conservatorship of Donley (Donley),1 the
court concluded that such costs are compensable from the
protected person’s estate. The court concluded that like the
statute we relied on in Donley, Neb. Rev. Stat. § 30-2613(1)(b)
(Cum. Supp. 2012) authorizes a guardian to use a ward’s funds
for his or her support, care, and education. It concluded that
§ 30-2613(1)(b) authorized the assessment of costs and fees
from the minor’s estate.
1
In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631
N.W.2d 839 (2001).
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Based on this reasoning, the court awarded fees to Brydon’s
guardian ad litem, Brydon’s attorney, and Silvija’s attorney.
The court ordered Eric and Brydon’s estate to each pay one-
half of these fees. The court awarded fees of $8,882.50 to
Silvija’s attorney, and Eric’s share of the fees was $4,441.25.
ASSIGNMENTS OF ERROR
Eric assigns that the court erred in awarding attorney fees to
Silvija’s attorney, to be paid by Brydon’s estate and Eric. On
cross-appeal, Silvija assigns that the court erred in denying her
request for in loco parentis status.
STANDARD OF REVIEW
[1] We independently review questions of law decided by a
lower court.2
ANALYSIS
Attorney Fees in Guardianship
P roceedings
Eric argues that the court incorrectly awarded attorney fees
for Silvija’s attorney because there is no statutory authority
or recognized procedure for allowing attorney fees for a peti-
tioner’s attorney in a guardianship proceeding. Silvija argues
that the award was authorized by § 25-824 and Neb. Rev. Stat.
§§ 30-2620 (Cum. Supp. 2012) and 30-2643 (Reissue 2008).
[2-4] We pause here to clarify the nature of the issue because
the parties have expressed confusion about our standard or
review. A party may recover attorney fees and expenses in a
civil action only when a statute permits recovery or when we
have recognized and accepted a uniform course of procedure
for allowing attorney fees.3 When attorney fees are authorized,
the trial court exercises its discretion in setting the amount
of the fee, which ruling we will not disturb on appeal unless
the court abused its discretion.4 But whether attorney fees are
2
Pinnacle Enters. v. City of Papillion, ante p. 322, ___ N.W.2d ___ (2013).
3
Vlach v. Vlach, ante p. 141, 835 N.W.2d 72 (2013).
4
See, Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d
792 (2005); Donley, supra note 1; Winter v. Department of Motor Vehicles,
257 Neb. 28, 594 N.W.2d 642 (1999).
Nebraska Advance Sheets
IN RE GUARDIANSHIP OF BRYDON P. 667
Cite as 286 Neb. 661authorized by statute or by our recognition of a uniform course
of procedure presents a question of law.5
Both parties incorrectly argue that § 30-2643 governs an
award of costs and fees in a guardianship proceeding for a
minor. Article 26 of the Nebraska Probate Code deals with the
protection of minors and persons under a disability. Article
26 has three distinct sections of statutes that apply respec-
tively to (1) a conservatorship proceeding for a person under
a disability or a minor,6 (2) a guardianship proceeding for an
incapacitated person,7 and (3) a guardianship proceeding for a
minor.8 Section 30-2643 authorizes a court to assess costs and
fees for a court-appointed person in a conservatorship proceed-
ing. But it does not apply here because it is not a conservator-
ship proceeding.
In guardianship proceedings, the statutory authorization for
an assessment of fees and costs is inconsistent. In a guardian-
ship proceeding for an incapacitated person, § 30-2620.01
authorizes a court to assess and adjust reasonable fees and
costs for an attorney, a guardian ad litem, a physician, and a
visitor “appointed by the court for the person alleged to be
incapacitated.” The court may assess fees and costs against
the estate of the person who is the subject of the proceeding,
if the person has an estate; a petitioner; or in some cases, the
county.9 But in a guardianship proceeding for a minor,10 the
court correctly concluded that the probate statutes authorized
a court only to appoint an attorney and guardian ad litem for
a minor whose interests may be inadequately represented.11
5
See, Donley, supra note 1; Winter, supra note 4.
6
Neb. Rev. Stat. §§ 30-2630 to 30-2661 (Reissue 2008 & Cum. Supp.
2012).
7
Neb. Rev. Stat. §§ 30-2617 to 30-2629 (Reissue 2008 & Cum. Supp.
2012).
8
Neb. Rev. Stat. §§ 30-2605 to 30-2616 (Reissue 2008 & Cum. Supp.
2012).
9
See, § 30-2620.01; In re Guardianship of Suezanne P., 6 Neb. Ct. App. 785,
578 N.W.2d 64 (1998).
10
See §§ 30-2605 to 30-2616.
11
See, Neb. Rev. Stat. § 30-2222(4) (Reissue 2008); § 30-2611(d).
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No statute explicitly authorizes a court to assess the fees and
costs of appointed persons against the ward’s estate, a peti-
tioner, or the county.
Similarly, none of the statutes in article 26 regarding con-
servatorships and guardianships explicitly authorize a court
to assess a petitioner’s attorney fees against the estate. For
conservatorship and guardianship cases, however, we have
recognized a course of procedure for assessing a successful
petitioner’s costs against the estate.
In Donley,12 we concluded that public policy demanded
compensation for a petitioner’s costs in initiating a guardian-
ship or conservatorship proceeding in good faith for the benefit
of a person alleged to be in need of protection. We reasoned
that in these proceedings, the petitioners are usually acting on
behalf of persons who are unable to take actions to protect
themselves and often unable to give informed consent to the
action. We further reasoned that for persons who are in need of
protection, the State and society have a strong interest in plac-
ing them and their estates under a court’s supervision. And this
protection is dependent upon the ability of someone to initiate
a proceeding on behalf of the person in need.
We held that when a court determines that a guardianship or
conservatorship appointment is necessary for a person alleged
to be in need of protection, the reasonable costs of initiating a
good faith petition, including attorney fees, constitute neces-
sary expenditures for the person’s support or benefit, which
costs may be assessed against the person’s estate. Moreover, in
conservatorship cases, we held that this assessment is statuto-
rily authorized by § 30-2654(a)(2), which allows a conserva-
tor “to expend or distribute sums [from the estate] reasonably
necessary for the support, education, care or benefit of the
protected person.”
Under the guardianship statutes pertaining to minors,
§ 30-2613(1)(b) permits a guardian to receive money pay-
able to a ward and spend these funds for the ward’s sup-
port, care, and education. The court correctly determined that
12
Donley, supra note 1.
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IN RE GUARDIANSHIP OF BRYDON P. 669
Cite as 286 Neb. 661§ 30-2613(1)(b) mirrors § 30-2654(a)(2), the statute that we
construed in Donley.
[5] We decided Donley in 2001, and the Legislature has
not amended any statutes in article 26 in response to Donley.
When an appellate court judicially construes a statute and
that construction fails to evoke an amendment, we presume
that the Legislature has acquiesced in our determination of
the Legislature’s intent.13 We conclude that our reasoning in
Donley applies here also.
[6] We hold that when a court determines that a petitioner
seeks a guardianship appointment for a minor in good faith
and that the guardianship is in the minor’s best interests, the
court is statutorily authorized to assess a successful petitioner’s
reasonable costs, including attorney fees, against the minor’s
estate, if an estate exists. In such cases, the authorizing statute
for the assessment is § 30-2613(1)(b). A court may also assess
the minor’s attorney fees and guardian ad litem fees against his
or her estate when the court has determined that these appoint-
ments are necessary to ensure that the minor’s interests are
adequately represented.
But Donley did not authorize an assessment of a successful
petitioner’s costs against another party. Permitting a court to
assess a petitioner’s costs against other parties could inhibit
them from intervening or objecting. And in a guardianship pro-
ceeding for a minor, a county court must also hear from others
who may have rights at stake or who have genuine concerns
about the minor’s best interests. Nor is an assessment against
other parties consistent with § 30-2613(1)(b)’s authorization
for a guardian to spend funds from a ward’s estate for the
ward’s benefit.
[7] Outside of § 30-2613(1)(b), no statute or recognized
course of procedure authorizes fees or costs to be assessed
against anyone in a guardianship proceeding for a minor.
We conclude that the court erred in extending our reasoning
in Donley to other parties. Under Nebraska’s guardianship
13
See Durre v. Wilkinson Development, 285 Neb. 880, 830 N.W.2d 72(2013).
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statutes for minors, a county court is not authorized to assess
attorney fees against another party.
Alternatively, Silvija relies on In re Guardianship of Bremer.14
There, after an elderly ward died, the guardian filed his final
accounting and asked to be discharged. One of the ward’s chil-
dren objected and asked the court to assess surcharges against
the guardian for his alleged breaches of fiduciary duties while
he was the conservator. The guardian successfully defended
his actions, but the court disallowed attorney fees because the
defense was personal to the guardian.
We reversed. We concluded that because the guardian had
been the conservator, he was acting as a special conservator
for the estate, and that § 30-2643 authorized an assessment of
his fees. We further stated that even apart from § 30-2643, a
court may allow a guardian attorney fees necessarily incurred
in preparing a final account if he successfully defends it
against objectors. We reasoned that “[t]o make a fiduciary
personally responsible for all attorney fees reasonably incurred
in the successful defense of his actions as fiduciary would
impose an unconscionable burden on fiduciary service with-
out justification.”15
In re Guardianship of Bremer does not apply here. Section
30-2643 applied to that guardianship proceeding only because
the guardian was also acting as a special conservator. Moreover,
Silvija did not incur attorney fees because she was defending
her actions as a fiduciary. The court had not appointed her
when she incurred these fees. And even if she were entitled to
attorney fees under In re Guardianship of Bremer, we held that
the attorney fees were to be assessed against the ward’s estate.
So this decision does not authorize an assessment against other
parties even if it were factually on point.
Finally, Silvija argues that she is entitled to attorney fees
under § 25-824, even though she did not claim that Eric’s
petition to intervene was frivolous. Eric correctly contends
that Neb. Rev. Stat. § 25-824.01 (Reissue 2008) requires a
14
In re Guardianship of Bremer, 209 Neb. 267, 307 N.W.2d 504 (1981).
15
Id. at 275, 307 N.W.2d at 509.
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IN RE GUARDIANSHIP OF BRYDON P. 671
Cite as 286 Neb. 661court to specifically state the reason for an award of attorney
fees under § 25-824, and the court did not do this. But Silvija
argues that because Eric failed to appear at his deposition
and at trial, the court could have concluded that he had acted
in bad faith. She argues that the court’s failure to make spe-
cific findings about this conduct is only a reason to remand
the cause.
We disagree. Silvija submitted an affidavit with her attor-
ney fees listed. The court awarded the exact amount of
attorney fees that Silvija requested, and she did not request
fees under § 25-824. This argument is without merit. We con-
clude that the court erred in assessing Silvija’s attorney fees
against Eric.
But we conclude that the issue must be remanded to the
court for further proceedings. As stated, the court awarded
fees of $8,882.50 to Silvija’s attorney. It incorrectly assessed
$4,441.25 of these fees against Eric. On remand, the court
must determine whether to assess all or any part of the incor-
rectly assessed fess against Brydon’s estate. In doing so, the
court should consider the usual factors for determining reason-
able attorney fees, which we set out in Donley. In addition, of
course, under § 30-2613(1)(b), the court must consider whether
a further assessment of costs against Brydon’s estate would be
detrimental to his long-term interests.
In Loco Parentis Doctrine
On cross-appeal, Silvija argues that the county court had
jurisdiction to grant her request for in loco parentis status
and that it erred in failing to grant this request. She relies on
changes to jurisdictional statutes that give county courts con-
current jurisdiction over domestic relations cases. But Eric had
not commenced a custody proceeding, and he stipulated to her
appointment as Brydon’s guardian. So even if a court can rec-
ognize a petitioner’s in loco parentis status in some guardian-
ship cases to contest a natural parent’s request for custody—an
issue we do not decide—this guardianship proceeding did not
involve a custody dispute. We conclude that a county court’s
jurisdiction to resolve custody disputes was irrelevant to the
court’s authority to act here.
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Eric argues that because the county court lacks equity
jurisdiction, it could not grant Silvija’s request for in loco
parentis status. He relies on our explanation in Latham v.
Schwerdtfeger16 that the in loco parentis doctrine is a common-
law doctrine. We did not explicitly state in Latham that in loco
parentis is an equitable remedy or doctrine, but other courts
have done so, including one of the courts that we cited with
approval in Latham.17 But even if recognizing a party’s in loco
parentis relationship to a child is an equitable doctrine, that
conclusion would not mean that the court lacked jurisdiction
to do so here.
[8] Although county courts lack general equity jurisdic-
tion, they may apply equitable principles to matters that are
within their exclusive jurisdiction.18 Under Neb. Rev. Stat.
§ 24-517(2) (Cum. Supp. 2012), unless a juvenile court has
acquired jurisdiction over a child in need of a guardian, a
county court has exclusive jurisdiction over all matters relating
to a guardianship. So the issue here is not whether the court has
jurisdiction to recognize a petitioner’s in loco parentis status
in a guardianship proceeding. The issue is whether a court can
confer permanent in loco parentis status.
Silvija clearly did not need the court to recognize her in
loco parentis relationship with Brydon for her to have stand-
ing to seek appointment as his guardian. And the court’s
appointment of her as Brydon’s guardian forestalled any need
for the court to consider whether it should recognize her in
loco parentis status. Under the court’s order, she obviously
has legal and physical custody. Instead, Silvija is seeking
permanent parental status under the doctrine. The court cor-
rectly concluded that it cannot confer permanent in loco
parentis status.
In Latham,19 we applied the in loco parentis doctrine in a
custody dispute involving two unmarried domestic partners
16
Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011).
17
See id., citing Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419(1995).
18
See Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).
19
Latham, supra note 16.
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Cite as 286 Neb. 661who had separated. We held that the plaintiff had standing
under the doctrine to seek custody and visitation of the child
born to the other partner during the parties’ relationship. We
explained that in loco parentis is a common-law doctrine that
gives standing to a nonparent to exercise the rights of a natural
parent when the evidence shows that the nonparent’s exercise
of such rights is in the child’s best interests. The evidence must
show that the nonparent has established an intimate parent-
child relationship and assumed the obligations of that relation-
ship. We discussed earlier cases in which we had applied the
doctrine, including a case affirming an award of visitation to
a child’s ex-stepparent.20 We quoted with approval another
court’s explanation of the doctrine:
“[W]hile it is presumed that a child’s best interest is
served by maintaining the family’s privacy and autonomy,
that presumption must give way where the child has
established strong psychological bonds with a person
who, although not a biological parent, has lived with the
child and provided care, nurture, and affection, assuming
in the child’s eye a stature like that of a parent. Where
such a relationship is shown, our courts recognize that
the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate
fully the issue of whether that relationship should be
maintained even over a natural parent’s objection.”21
We explained that when “viewed in the context of standing
principles in general, [the doctrine’s] purpose is to ensure that
actions are brought only by those with a genuine substantial
interest.”22 We concluded that the nonparent had standing
to seek custody and visitation, and we reversed the district
court’s summary judgment for the parent because the parties
were not coparenting at the time of the hearing. We remanded
the cause with instructions for the court to focus on the
child’s best interests in maintaining the relationship with the
20
See Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991).
21
Latham, supra note 16, 282 Neb. at 130, 802 N.W.2d at 74 (emphasis
supplied).
22
Id.
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n
­ onparent and on the nature of that relationship after the par-
ties’ separation.
[9,10] Our discussion in Latham shows that in the context
of a court action in which a nonparent seeks custody or visita-
tion with the child, in loco parentis is a standing doctrine. Its
application depends upon the circumstances in existence when
the nonparent claims a child’s best interests lie in allowing
him or her to exercise parental rights. But we have specifically
stated that “[o]nce the person alleged to be in loco parentis no
longer discharges all duties incident to the parental relation-
ship, the person is no longer in loco parentis. . . . Termination
of the in loco parentis relationship also terminates the cor-
responding rights and responsibilities afforded thereby.”23 For
example, we have held that a court could not order a child’s
ex-stepparent to pay child support after he was no longer dis-
charging the daily duties of a parent.24
[11] Presumably, in Silvija’s role as Brydon’s guardian,
she will continue to perform the parental obligations that she
had assumed before the appointment. But because the in loco
parentis doctrine is transitory, whether a person seeking guard-
ianship of a minor should have standing to maintain custody if
the minor’s biological parent ever seeks custody in the future
is an issue that cannot be decided in advance of any dispute.
We conclude that the court did not err in rejecting Silvija’s
request for permanent parental status.
CONCLUSION
We conclude that the court correctly denied Silvija’s
request for permanent parental status under the doctrine of in
loco parentis.
But we conclude that the court erred in assessing Silvija’s
attorney fees against Eric. In a guardianship proceeding for
a minor, no statute or recognized course of action permits
a court to assess a petitioner’s costs against another party.
We reverse that portion of the court’s order. We remand
23
In re Interest of Destiny S., 263 Neb. 255, 261, 639 N.W.2d 400, 406
(2002).
24
See Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).
Nebraska Advance Sheets
KLINGELHOEFER v. MONIF 675
Cite as 286 Neb. 675the cause, however, for the court to determine whether to
assess all or any part of the incorrectly assessed fess against
Brydon’s estate.
Affirmed in part, and in part reversed
and remanded for further proceedings
on the issue of fees.
David J. K lingelhoefer, as Successor Trustee of the
Constance K. K lingelhoefer R evocable Trust and
as manager of Constance K lingelhoefer, L.L.C.,
appellee, v. K erry L. Monif et al., appellants.
___ N.W.2d ___
Filed October 11, 2013. No. S-12-1117.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, upon which an appellate court reaches a conclusion independent of the
trial court.
2. Courts: Appeal and Error. After receiving a mandate, a trial court is without
power to affect rights and duties outside the scope of the remand from an appel-
late court.
3. Courts: Judgments: Appeal and Error. A district court has an unqualified duty
to follow the mandate issued by an appellate court and must enter judgment in
conformity with the opinion and judgment of the appellate court.
4. ____: ____: ____. The judgment of the appellate court is a final judgment in the
cause, and the entry thereof in the lower court is a purely ministerial act.
5. Judgments. After a mandate is issued, no modification of the judgment so
directed can be made, nor may any provision be engrafted on or taken from it.
6. ____. A mandate is conclusive on the parties, and no judgment or order different
from, or in addition to, the mandate can have any effect.
7. Attorney Fees: Appeal and Error. An appellate court may award attorney fees
on appeal regardless of whether they were requested or ordered in the trial court.
8. Attorney Fees: Words and Phrases. In the context of Neb. Rev. Stat. § 25-824
(Reissue 2008), a frivolous action is one in which a litigant asserts a legal posi-
tion so wholly without merit as to be ridiculous.
9. Actions. Any doubt whether a legal position is frivolous or taken in bad faith
should be resolved for the party whose legal position is in question.
Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Vacated and dismissed.
David J. Lanphier, of Broom, Clarkson, Lanphier &
Yamamoto, for appellants.