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Cite as 26 Neb. App. 380

In re Guardianship of Aimee S., an 

and protected pers

Deborah S. and June Berger, appel

v. Susanne Dempsey-Cook, Su

Guardian, and Kelly Henry 

guardian ad litem, appell

___ N.W.2d ___

Filed October 2, 2018. No. A-17-749.

1. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction.

2. Guardians and Conservators: Appeal and Error. An appellate court 

reviews guardianship and conservatorship proceedings for error appearing on the record made in the county court.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion 

reached by the lower court.

4. Judges: Words and Phrases: Appeal and Error. A judicial abuse of 

discretion exists when a judge, within the effective limits of authorized 

judicial power, elects to act or refrains from action, but the selected 

option results in a decision which is untenable and unfairly deprives 

a litigant of a substantial right or a just result in matters submitted for 

disposition through the judicial system.

5. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision 

allowing or disallowing attorney fees for frivolous or bad faith litigation 

will be upheld in the absence of an abuse of discretion.

6. ____: ____. When attorney fees are authorized, the trial court exercises 

its discretion in setting the amount of the fee, which ruling an appellate 

court will not disturb on appeal unless the court abused its discretion.

7. Attorney Fees: Costs. Attorney fees, where recoverable, are generally 

treated as an element of court costs.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/02/2018 08:38 AM CDT
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8. Judgments: Costs. An award of costs in a judgment is considered a part 

of the judgment.

9. Judgments: Attorney Fees. A party seeking statutorily authorized attorney fees, for services rendered in a trial court, must make a request for 

such fees prior to a judgment in the cause.

10. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of the litigation.

11. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

12. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

13. Summary Judgment: Proof. Once the moving party makes a prima 

facie case, the burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of a material 

issue of fact that prevents judgment as a matter of law.

14. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely 

objection waives the right to assert prejudicial error on appeal.

15. Waiver: Appeal and Error. Errors not assigned in an appellant’s 

initial brief are waived and may not be asserted for the first time in a 

reply brief.

16. Summary Judgment: Evidence. Conclusions based upon guess, speculation, conjecture, or choice of possibilities do not create material issues 

of fact for the purposes of summary judgment; the evidence must be 

sufficient to support an inference in the nonmovant’s favor without the 

fact finder engaging in guesswork.

17. Trial: Expert Witnesses. It is within the trial court’s discretion to determine whether there is sufficient foundation for an expert witness to give 

his or her opinion about an issue in question.

18. Expert Witnesses. Expert testimony should not be received if it appears 

that the witness is not in possession of such facts as will enable the 

expert to express a reasonably accurate conclusion, and where the 

opinion is based on facts shown not to be true, the opinion lacks probative value.

19. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in 

receiving or excluding an expert’s testimony which is otherwise relevant 

will be reversed only when there has been an abuse of discretion.
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20. Appeal and Error. An issue not presented to or decided by the trial 

court is not appropriate for consideration on appeal.

21. ____. Generally, a party cannot complain of error which the party has 

invited the court to commit.

22. Actions: Attorney Fees: Words and Phrases. A frivolous action is 

one in which a litigant asserts a legal position wholly without merit; 

that is, the position is without rational argument based on law and evidence to support the litigant’s position. The term “frivolous” connotes 

an improper motive or legal position so wholly without merit as to 

be ridiculous.

23. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision 

allowing or disallowing attorney fees for frivolous or bad faith litigation 

will be upheld in the absence of an abuse of discretion.

Appeal from the County Court for Douglas County: Sus

M. Bazis and Stephanie S. Shearer, Judges. A

Brent M. Kuhn, of Brent Kuhn Law, for appellants.

Barbara J. Prince for appellee Susanne Dempsey-Cook.

John M. Walker and Cathy S. Trent-Vilim, of Lamson, 

Dugan & Murray, L.L.P., for appellee Kelly Henry Turner.

Pirtle, Riedmann, and Bishop,

Pirtle, Judg

I. INTRODUCTION

Deborah S. is the mother of Aimee S., an incapacitated 

adult. In December 2013, Deborah and June Berger (June), her 

friend, (collectively appellants) filed a petition for removal of 

a court-appointed guardian and appointment of themselves as 

successor coguardians and coconservators. Summary judgment 

was granted against appellants in June 2015. In December 

2016, it was determined that the application to remove the 

court-appointed guardian and conservator was frivolous and 

that Deborah should be ordered to pay attorney fees and 

expenses in the amount of $75,906.20. For the reasons that follow, we affirm.
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II. BACKGROUND

Aimee was declared incapacitated at the age of 23. Deborah 

was appointed as the temporary legal guardian of Aimee on 

November 14, 2001, and permanent legal guardian on January 

23, 2002.

In 2011, the Department of Health and Human Services 

became involved after being contacted by the police. The 

police had been called when Aimee was overheard screaming in her apartment. Upon her admission to a local hospital, Aimee was psychotic, disoriented, and malnourished and 

her personal hygiene was “badly neglected.” The hospital 

staff contacted Adult Protective Services, expressing concern 

regarding Aimee’s condition.

According to Deborah, Aimee’s condition in January 2011 

was generally the same for the 2 years prior to her hospitalization. Deborah did not recall Aimee’s showering in the 2 years 

prior to her hospitalization in 2011. Deborah acted as Aimee’s 

guardian at that time and visited with Aimee frequently, but 

took no responsibility for Aimee’s condition. Deborah recalled 

that Aimee had seen her mental health provider approximately 

twice during the same 2-year period and that Aimee had 

skipped therapy appointments because she refused to leave 

her apartment.

A petition was filed by Adult Protective Services in 2011, 

alleging that Deborah failed to perform her duties as guardian, that she was not able to make appropriate decisions for 

Aimee’s medical needs and treatment, and that it was in 

Aimee’s best interests that a successor guardian be appointed. 

Deborah filed an answer denying the allegations against her, 

but she agreed to step down, requesting that June be appointed 

as successor guardian. Deborah was removed as guardian, and 

Sally Hytrek was appointed as the successor guardian.

On December 27, 2013, appellants filed a motion to be 

appointed coguardians and coconservators for Aimee and to 

have Hytrek removed as the court-appointed guardian and 
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conservator for Aimee. The petition set forth nine reasons why 

Hytrek should no longer be the guardian.

On May 30, 2014, Hytrek resigned as successor guardian, 

because the “constant demands, allegations and interference” 

by appellants made it impossible for her to carry out her fiduciary duties to Aimee and to the other individuals she served 

as guardian and/or conservator. On June 10, the county court 

overruled appellants’ motion to appoint a substitute guardian. 

On or about June 12, the court accepted Hytrek’s resignation 

and appointed Susanne Dempsey-Cook as temporary successor 

guardian. Appellants did not amend their petition, and Deborah 

continued to seek removal of the court-appointed guardian. At 

a later hearing, Deborah stated that the goal of her “petition to 

remove the state guardians was to have myself and June . . . be 

appointed as co-guardians.” She stated that “in order for June 

and I to be co-guardians, yes, whoever was in there would have 

to be removed.” Deborah conceded that when Dempsey-Cook 

was Aimee’s guardian, Aimee’s needs were being met—Aimee 

had a place to live, food to eat, clothing, shoes, and access to 

medical and mental health care providers.

On January 2, 2015, Aimee’s guardian ad litem (GAL), 

Kelly Henry Turner, filed a motion for summary judgment, 

arguing there was no genuine issue as to any material fact 

with regard to whether it was in Aimee’s best interests for 

Deborah to be reappointed as Aimee’s guardian. In support 

of her motion, Turner asserted she would offer the evidence 

previously offered at the hearing on November 7, 2014, regarding appellants’ motion to remove restrictions and appellants’ 

motion to quash the psychological evaluation of Deborah, 

specifically the affidavits of Robert Troyer, Aimee’s psychotherapist; the social services director for Sunrise Country 

Manor (Sunrise), where Aimee resides; and the administrator 

for Sunrise. Turner asserted she would also offer the evidence 

previously offered in support of her motion for a “Rule 6-335” 

psychological evaluation and other relief, dated October 31, 

2014, specifically: the GAL report filed August 18; the GAL 
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report dated May 2, 2011; the clinical notes report filed on 

February 22; the affidavit of Deborah filed on May 5; and the 

petition of the Department of Health and Human Services to 

remove Deborah as guardian filed on October 6. A hearing was 

held on the matter on February 3, 2015, and the matter was 

taken under advisement.

On February 27, 2015, the motion for summary judgment 

was denied because Deborah had been ordered to complete 

a psychological evaluation to determine her fitness to serve 

as guardian, and the evaluation had not yet been completed. 

The court wrote that once Deborah “obtains her psychological 

evaluation it should address whether [she] is capable of carrying out the duties of being Aimee’s Guardian and Conservator. 

Until the evaluation is completed and the results known there 

are genuine issues of material facts in this case.”

On May 4, 2015, Turner and Dempsey-Cook (collectively 

appellees) filed a joint motion for summary judgment and 

requested attorney fees. Appellees moved for summary judgment “for the reason that the pleadings, evidence and affidavits 

disclose that there is no genuine issue as to any material fact 

as to whether it is in [Aimee’s] best interest for Deborah . . . to 

be reappointed as Aimee’s guardian.” Appellees asserted they 

would support their motion with the same evidence identified 

in Turner’s first motion for summary judgment. The motion 

sought an order finding it was not in Aimee’s best interests 

for Deborah to be the guardian and conservator, and also 

sought a finding that the legal proceedings brought by Deborah 

were frivolous.

A hearing on the motion was held on May 28, 2015. In 

support of her motion, Turner offered into evidence exhibits 2 

through 4, 6, 9, 14, and 15. In opposition to the motion, appellants offered exhibit 16.

Turner offered the affidavit of the administrator for Sunrise, 

who characterized the relationship between Aimee and Deborah 

as “co-dependen[t]” and commented that this codependent 

relationship “stifle[d] Aimee’s ability and desire” to improve. 
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The administrator stated that Deborah often brought prohibited 

items into the facility, discouraged Aimee from using items 

provided by Sunrise, and performed activities for Aimee that 

Aimee should do for herself. Deborah ignored requests from 

the staff and conducted herself in ways that fed into Aimee’s 

obsessive behaviors.

Turner offered the affidavit of the social services director 

for Sunrise, who described how differently and independently 

Aimee acted approximately 11 days after Aimee’s contact with 

Deborah had terminated. The social services director stated 

her opinion that it was in Aimee’s best interests to discontinue 

contact with Deborah.

Turner offered the affidavit and psychological evaluation 

of Deborah conducted by Stephanie Peterson on February 

13, 2015. Peterson noted that Deborah’s ability to serve 

again as Aimee’s guardian “will depend upon her ability to 

trust and work cooperatively with others capable of cleareyed assessment of Aimee’s needs, abilities and behaviors.” 

Peterson opined that Deborah was not competent to serve as 

Aimee’s legal guardian. Peterson suggested that Deborah “may 

gain competency” by working with Aimee’s current guardian, caregivers, and physicians to understand the elements of 

Aimee’s treatment plan and gain insight regarding her role in 

Aimee’s treatment.

Turner offered the affidavit of Troyer, Aimee’s psychotherapist. He met with both Aimee and Deborah in family therapy 

sessions. He stated that Deborah cleaned Aimee’s eyeglasses, 

lenses and frames, for anywhere from 15 to 45 minutes every 

session and that Deborah then spent the remainder of the time 

combing Aimee’s hair, leaving little or no time for conversation. Troyer stated that he was in “full agreement” with the 

recommendations Peterson set forth in Deborah’s psychological evaluation.

Appellants offered the affidavit of Deborah’s therapist, Kevin 

Cahill. Cahill provided counseling to Deborah to “help her 

deal with the issues concerning care for [Aimee].” Appellees 
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objected to the admission of paragraphs 11 through 13, which 

contained Cahill’s opinion regarding Deborah’s qualifications 

to serve as guardian. Appellees objected on the basis that paragraphs 11 through 13 of Cahill’s affidavit were hearsay, lacked 

proper foundation, and were not relevant.

On July 24, 2015, the court sustained appellees’ joint motion 

for summary judgment. In the order, the court addressed the 

evidentiary objections, finding, in relevant part, that paragraphs 11 through 13 of Cahill’s affidavit lacked foundation as Cahill was only “‘generally familiar’” with Aimee’s 

circumstances and his opinion was based upon information 

Deborah had relayed to him. Deborah was granted the right 

to visit Aimee where Aimee resided, subject to specific conditions set forth in the order. Deborah filed a notice of appeal on 

August 24. On February 3, 2016, this court granted Turner’s 

motion for summary dismissal in part, concluding that the 

summary judgment order was not a final, appealable order 

because a request for attorney fees was still pending. See In 

re Guardianship of Aimee S., 24 Neb. App. 230, 885 N.W.2d 

330 (2016).

A hearing was held in the county court to determine whether 

appellants’ petition for guardianship was frivolous and 

whether attorney fees owed the GAL’s attorney should be paid 

by appellants. The GAL’s attorney, Turner, Dempsey-Cook, 

Deborah, and June testified, as did a friend of Deborah’s. 

The relevant portions of this proceeding will be discussed in 

detail, below.

On December 1, 2016, the county court entered an order 

finding that appellants’ application was frivolous and approving 

attorney fees for the GAL’s attorney. The court awarded attorney fees of $75,906.20 to be paid by Deborah. The December 1 

order also appointed Dempsey-Cook as the permanent guardian 

of Aimee.

On December 6, 2016, Dempsey-Cook filed an application 

for fees. On December 8, appellants filed a motion to alter 

or amend the order of the county court. On December 16, a 
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motion for attorney fees was made for services rendered to 

Turner by her attorney. On January 13, 2017, Turner filed an 

application and affidavit to recover fees in her own capacity as 

the GAL. On May 23, the court entered a journal entry noting, 

“Pending before the Court are a Motion to Alter or Amend, 

Motions for Fees, Objections to the Fees, and Objection to the 

Appointment of . . . Dempsey[-]Cook. . . . [M]atter . . . set [for] 

an evidentiary hearing on . . . June 22, 2017.”

On June 22, 2017, the court denied the motion to alter or 

amend and set a hearing on August 9 to address the motions for 

fees. On July 14, appellants filed a notice of appeal, appealing 

the summary judgment and visitation orders of July 24, 2015, 

and the order for attorney fees for the GAL’s attorney.

Turner filed an amended application for allowance and payment of interim attorney fees on July 26, 2017. The next day, 

the county court canceled the hearing on all fee applications, 

finding that the appeal to this court filed by appellants meant 

the county court was without jurisdiction to consider any of the 

applications for fees.

On August 4, 2017, Turner filed a motion to reconsider, 

arguing the court did not lose jurisdiction because appellants 

filed an appeal from an order that did not comply with Neb. 

Rev. Stat. § 25-1902 (Reissue 2016). Turner argued that this 

court would find that it lacked jurisdiction to hear the appeal 

filed by the appellants because there were pending motions for 

attorney fees. On August 7, Dempsey-Cook also filed a motion 

to reconsider, for the same reasons stated by Turner.

III. ASSIGNMENTS OF ERROR

Appellants assert the court erred in finding Deborah was 

not suited to be appointed as coguardian and coconservator 

for Aimee and entering summary judgment against Deborah. 

Appellants assert the court abused its discretion in finding 

appellants’ petition was frivolous and in awarding attorney 

fees and costs for the attorneys representing the GAL. They 

also assert the court erred in denying Deborah’s motion to 
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alter or amend without giving her the opportunity to argue 

the motion.

IV. STANDARD OF REVIEW

[1] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it 

has jurisdiction. Murray v. Stine, 291 Neb. 125, 864 N.W.2d 

386 (2015).

In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. Thompson v. Johnson, 299 Neb. 819, 910 N.W.2d 

800 (2018).

[2,3] An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made 

in the county court. In re Guardianship & Conservatorship 

of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015). When 

reviewing questions of law, an appellate court resolves the 

questions independently of the conclusion reached by the lower 

court. Id.

[4] A trial court’s ruling in receiving or excluding an expert’s 

opinion which is otherwise relevant will be reversed only when 

there has been an abuse of discretion. Hike v. State, 288 Neb. 

60, 846 N.W.2d 205 (2014). A judicial abuse of discretion 

exists when a judge, within the effective limits of authorized 

judicial power, elects to act or refrains from action, but the 

selected option results in a decision which is untenable and 

unfairly deprives a litigant of a substantial right or a just result 

in matters submitted for disposition through the judicial system. Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 

23, 751 N.W.2d 608 (2008).

[5,6] On appeal, a trial court’s decision allowing or disallowing attorney fees for frivolous or bad faith litigation will 

be upheld in the absence of an abuse of discretion. SBC v. 

Cutler, 23 Neb. App. 939, 879 N.W.2d 45 (2016). When 
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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. 

In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 

262 (2013).

V. ANALYSIS

1. Preliminary Is

(a) Jurisdiction

Before reaching the legal issues presented for review, it is 

the duty of an appellate court to determine whether it has jurisdiction. Murray v. Stine, supra. We must determine whether 

the absence of a ruling on certain motions for attorney fees 

prevents us from acquiring jurisdiction over this appeal.

The county court ruled on appellees’ motion for summary 

judgment on July 24, 2015, and the order was appealed. This 

court determined that the order was not final because the issue 

of the fees and costs requested by the attorneys for the GAL 

had not been resolved. See In re Guardianship of Aimee S., 24 

Neb. App. 230, 885 N.W.2d 330 (2016).

Following the dismissal of the previous appeal, the county 

court heard the request for attorney fees by the GAL’s attorney 

on August 26 and 29, 2016. On December 1, the county court 

found appellants’ application was frivolous and approved fees 

for the GAL’s attorney. On December 6, Dempsey-Cook filed 

an application for fees. On December 8, appellants filed a 

motion to alter or amend the judgment. On December 16, the 

GAL’s attorney’s law firm filed a motion for attorney fees for 

services rendered to Turner. On January 13, 2017, Turner filed 

an application and affidavit to recover fees in her own capacity 

as the GAL.

On June 22, 2017, the county court denied appellants’ 

motion to alter or amend and set a hearing on the motions for 

fees. Before the hearing took place, appellants filed a notice of 

appeal, and the county court determined it was without jurisdiction to rule on the pending motions for fees.
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Appellees argue that this court is without jurisdiction to consider this appeal because the three applications for fees filed 

by Dempsey-Cook, the GAL’s attorney’s law firm, and Turner 

were not ruled on prior to appellants’ notice of appeal.

[7-9] Attorney fees, where recoverable, are generally treated 

as an element of court costs. Murray v. Stine, 291 Neb. 125, 

864 N.W.2d 386 (2015). And an award of costs in a judgment is considered a part of the judgment. Id. The Nebraska 

Supreme Court has stated that a party seeking statutorily authorized attorney fees, for services rendered in a trial court, must 

make a request for such fees prior to a judgment in the cause. 

Id. When a motion for attorney fees for a frivolous action 

under Neb. Rev. Stat. § 25-824 (Reissue 2016) is made prior to 

the judgment, the judgment will not become final and appealable until the court has ruled upon that motion. See Salkin v. 

Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).

In Murray v. Stine, 291 Neb. at 127, 864 N.W.2d at 388, 

the Nebraska Supreme Court found it lacked jurisdiction 

“[b]ecause of unresolved motions for attorney fees.” In that 

case, the motions for fees were filed after the motion for summary judgment, but before the ruling was made. Id.

Due to the nature of this case, there are a number of individuals who incur ongoing costs. If this court was not able 

to acquire jurisdiction until each of the pending applications 

for fees was resolved, no party would be able to successfully appeal the county court’s order granting summary judgment. Upon our review, we find the summary judgment order 

became final and appealable after the issue of attorney fees 

for the GAL’s attorney was resolved in the December 1, 2016, 

order. We note that the timeline of this case is complicated by 

appellants’ motion to alter or amend the judgment; however, 

the relevant date for jurisdiction is the date of the judgment 

itself. Each of the pending fee applications was filed after the 

December 1 order, which distinguishes this case from Murray 

v. Stine, supra. Therefore, we find the applications for fees do 

not prevent this court from acquiring appellate jurisdiction.
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(b) Mootness

The petition filed by appellants sought removal of Hytrek, 

who resigned in 2014. Dempsey-Cook asserts that because no 

amended petition was filed, this appeal is moot.

[10] A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally 

cognizable interest in the outcome of the litigation. Simms v. 

Friel, 25 Neb. App. 640, 911 N.W.2d 636 (2018).

Dempsey-Cook notes that the county court found the petition to be frivolous, in part, because it was never amended 

to include the name of or specific allegations regarding the 

guardian who succeeded Hytrek. The petition could have, and 

perhaps should have, been amended following Hytrek’s resignation and the appointment of Dempsey-Cook as the temporary successor guardian. However, at the heart of this case is 

Deborah’s request for the removal of Aimee’s court-appointed 

guardian and her desire to be appointed, along with June, as 

Aimee’s coguardians and coconservators. These issues were 

presented in the petition and remained at issue during the summary judgment proceedings. Therefore, we find this issue is 

not moot.

Dempsey-Cook also argues the standard for removal of a 

guardian pursuant to Neb. Rev. Stat. § 30-2616 (Reissue 2016). 

She specifically asserts that appellants did not allege or offer 

any evidence that it was in Aimee’s best interests for DempseyCook to be removed as guardian and that therefore, the summary judgment issue must be moot.

Section 30-2616 provides that a person may petition for 

removal of a guardian on the ground that removal would be in 

the best interests of the ward. We note that § 30-2616 relates 

to the removal of a guardian when the protected person is a 

juvenile. The relevant statutory section for removal of a guardian of an incapacitated person is Neb. Rev. Stat. § 30-2623 

(Reissue 2016), which provides that “the court may remove a 

guardian and appoint a successor if in the best interests of the 

ward.” There is no specific requirement in § 30-2623 that the 
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issue of best interests related to a specific guardian must be 

pled. We find the issue is not moot simply because appellants 

did not plead Aimee’s best interests in relation to DempseyCook’s service as successor guardian.

(c) Standing

Appellants argue that neither the GAL nor the attorneys 

for the GAL had standing to bring the summary judgment 

proceeding or object to the affidavit of Cahill at the time of 

the hearing, “pursuant to the precedent in In re Guardianship 

of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).” Brief 

for appellants at 24. The cited case does not relate to the 

argument that appellants make and is distinguishable from 

this case, as it involved guardianship of a minor as defined 

in chapter 30, article 26, part 2, of the Nebraska Revised 

Statutes, rather than an incapacitated adult as defined in 

chapter 30, article 26, part 3, of the Nebraska Revised 

Statutes.

In their reply brief, appellants again argue that the GAL 

and her attorneys did not have standing to bring the summary judgment motion or object to the evidence at the hearing, this time referring to In re Guardianship of Robert D., 

269 Neb. 820, 696 N.W.2d 461 (2005). In that case, a GAL 

was appointed for a minor child when the child objected to 

the termination of a guardianship. The GAL sought clarification of his role, as he could have been appointed as an 

attorney for the child instead. The court stated that the GAL 

should also perform the duties of counsel for the child, which 

could include questioning witnesses. On appeal, the Nebraska 

Supreme Court stated that a GAL’s duties are to investigate 

the facts and learn where the welfare of his or her ward lies 

and to report these facts to the appointing court. Id., citing 

Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998). The 

Supreme Court in In re Guardianship of Robert D. also stated, 

“A [GAL] may be an attorney, but an attorney who performs 

the functions of a [GAL] does not act as an attorney and is 
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not to participate in the trial in an adversarial fashion such 

as calling or examining witnesses or filing pleadings and 

briefs.” 269 Neb. at 833, 696 N.W.2d at 472, citing Betz v. 

Betz, supra.

In re Guardianship of Robert D., supra, addresses the role 

of a GAL appointed for a juvenile at trial in a guardianship 

proceeding. Betz v. Betz, supra, addresses the role of a GAL 

appointed for a juvenile in juvenile cases versus an appointed 

GAL’s role at trial in a dissolution proceeding. Neither of these 

cases is directly applicable to the facts of this case.

Further, the Legislature has provided that a GAL has 

the ability to perform certain enumerated duties in certain 

cases. For example, Neb. Rev. Stat. § 43-272.01 (Reissue 

2016) has long provided that a GAL in certain juvenile cases 

have certain duties, which may include filing petitions on 

behalf of juveniles, presenting evidence and witnesses, and 

cross-examining witnesses at all evidentiary hearings. See 

§ 43-272.01(2)(a) through (h) (Reissue 2008). See, also, 

§ 43-272.01(2)(a) through (h) (Reissue 1998). Recently, the 

Legislature created a statute enumerating a similar set of 

duties for a GAL in probate cases. See Neb. Rev. Stat. 

§ 30-4203 (Reissue 2016). Section 30-4203 provides that a 

GAL appointed pursuant to the Nebraska Probate Code may 

“[c]onduct discovery, present witnesses, cross-examine witnesses, present other evidence, file motions, and appeal any 

decisions regarding the person for whom he or she has been 

appointed.” Although § 30-4203 became effective in 2016 

and is not controlling in this case, there was nothing in the 

statutes which explicitly prevented a GAL from performing 

these duties prior to § 30-4203. Further, § 30-4203 is informative of the role that guardians ad litem now play in the 

Nebraska courts.

We find the statutes and case law applicable to probate 

proceedings did not prevent the GAL or her attorneys from 

bringing the summary judgment proceeding or from objecting 

to evidence at the hearing.
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2. Summary Judgm

(a) Court Did Not Err in Granting 

Summary Judgment

Appellants assert the county court erred in granting the 

GAL and successor guardian’s joint motion for summary 

judgment.

[11,12] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as 

a matter of law. Thompson v. Johnson, 299 Neb. 819, 910 

N.W.2d 800 (2018). In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable 

to the party against whom the judgment was granted and gives 

that party the benefit of all reasonable inferences deducible 

from the evidence. Id.

[13] Once the moving party makes a prima facie case, the 

burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of a 

material issue of fact that prevents judgment as a matter of law. 

Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).

At the hearing on the motion for summary judgment, appellees offered several affidavits detailing Deborah’s interactions 

with Aimee, as well as health care professionals’ observations 

that Deborah has been unwilling or unable to act in Aimee’s 

best interests. The administrator for Sunrise, where Aimee is 

admitted, stated her observation that Aimee and Deborah have 

a “co-dependency” that “stifle[s] Aimee’s ability and desire” 

to make progress. She observed that Deborah ignored requests 

from the Sunrise administration regarding sanitation standards 

and the provision of certain restricted items to individuals in 

Sunrise’s care.

The affidavits and reports included recommendations that 

Deborah not have visits with Aimee until Deborah has made 

her own progress in individual therapy. Appellees presented 
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the results of Deborah’s psychological evaluation, in which 

Peterson explicitly states her opinion that Deborah is “not 

competent to serve as [Aimee’s] legal guardian.” (Emphasis in 

original.) This evidence met the burden of proof for summary 

judgment, establishing that appellees were entitled to judgment 

if the evidence was uncontroverted at trial. Thus, the burden 

shifted to Deborah.

The only evidence appellants produced to rebut appellees’ 

evidence was the affidavit of Deborah’s therapist, Cahill, 

which the county court determined could not be considered in 

its entirety. Appellants assert the county court’s ruling, excluding portions of Cahill’s affidavit, was “erroneous.” Brief for 

appellants at 28.

Objections were made by the attorneys for appellees on 

the basis that paragraphs 11 through 13 of Cahill’s affidavit 

were hearsay, lacked proper foundation, and were not relevant. 

Specifically, appellees argued that Cahill’s affidavit did not 

state the criteria upon which he based his opinion and that 

Cahill relied upon hearsay from Deborah to form his opinion. 

The court found that an expert can rely on hearsay to render 

an opinion, but for a court to receive an expert opinion, “the 

expert witness must possess competent facts and underlying 

data for their [sic] opinion.”

Cahill stated in his affidavit that he was “generally familiar” with the situation involving Aimee and the circumstances of appellants’ application. However, the court found 

the affidavit was lacking information that Cahill had reviewed 

Aimee’s medical records or that he possessed or reviewed 

any other information, other than what was provided to him 

by Deborah.

Appellants assert that it was prejudicial error for the court 

to sustain the objections to paragraphs 11 through 13. They 

assert that the statements contained in paragraphs 5 through 

10 were sufficient to establish foundation for Cahill’s opinion 

that Deborah was qualified to serve as coguardian and coconservator for Aimee. They assert that if his affidavit had been 
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received in its entirety, it would have “establishe[d] a genuine 

issue of material fact.” Brief for appellants at 22.

Turner, the GAL for Aimee, submitted a supplemental 

brief requesting this court to consider a Nebraska Supreme 

Court opinion published after oral argument, Freeman v. 

Hoffman-La Roche, Inc., 300 Neb. 47, 911 N.W.2d 591 (2018). 

Turner argues that Cahill’s opinions were not supported by 

a generally accepted methodology and that Cahill’s opinion 

about best interests was based upon “self-serving statements” 

of a third party, namely Deborah. Supplemental brief for 

appellee Turner at 3.

Appellants responded to Turner’s supplemental brief, asserting that paragraphs 1 through 13 of Cahill’s affidavit set forth 

his methodology for evaluating Deborah, whereas Peterson’s 

affidavit and report do not contain adequate information 

regarding her methodology.

[14,15] The record shows that Peterson’s affidavit was 

received without objection for purposes of the summary judgment hearing. Although appellants argue that “[their] counsel 

objected to . . . Peterson’s Affidavit based upon relevancy at 

the time of the Summary Judgment hearing,” the record does 

not support this assertion. Supplemental brief for appellants 

at 6. A litigant’s failure to make a timely objection waives 

the right to assert prejudicial error on appeal. In re Estate 

of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). Any challenge to the receipt of Peterson’s affidavit is waived. Further, 

even if appellants had objected, they did not assign error to 

the receipt of Peterson’s affidavit or argue the designation of 

Peterson as an expert witness in their initial brief. Errors not 

assigned in an appellant’s initial brief are waived and may 

not be asserted for the first time in a reply brief. Linscott v. 

Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014). Making 

an argument for the first time in a supplemental brief, as 

in a reply brief, is improper. See City of Lincoln v. County 

of Lancaster, 297 Neb. 256, 898 N.W.2d 374 (2017), citing Linscott v. Shasteen, supra. Thus, we will not consider 
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appellants’ argument that Peterson’s affidavit failed to set 

forth an adequate methodology.

[16] Paragraphs 5 and 6 of Cahill’s affidavit state that he 

has provided counseling and therapy for Deborah “at intervals since 2001” and that he is “generally familiar with the 

situation involving Aimee.” There is nothing in the affidavit to 

indicate that Cahill had any independent, personal knowledge 

of Aimee’s condition, and thus, Cahill had no foundation upon 

which to assess Aimee’s needs and Deborah’s ability to meet 

her needs. Cahill had no basis from which to conclude what 

might be in Aimee’s best interests. Conclusions based upon 

guess, speculation, conjecture, or choice of possibilities do 

not create material issues of fact for the purposes of summary 

judgment; the evidence must be sufficient to support an inference in the nonmovant’s favor without the fact finder engaging in guesswork. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 

674 (2016).

[17-19] It is within the trial court’s discretion to determine 

whether there is sufficient foundation for an expert witness to 

give his or her opinion about an issue in question. See Liberty 

Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 

N.W.2d 608 (2008). Expert testimony should not be received if 

it appears that the witness is not in possession of such facts as 

will enable the expert to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be 

true, the opinion lacks probative value. Hike v. State, 288 Neb. 

60, 846 N.W.2d 205 (2014). A trial court’s ruling in receiving 

or excluding an expert’s testimony which is otherwise relevant 

will be reversed only when there has been an abuse of discretion. Id.

The county court did not err in finding that paragraphs 

11 through 13 of Cahill’s affidavit lacked proper foundation. 

Because the only evidence Deborah presented regarding her 

ability to serve as Aimee’s coguardian or coconservator is 

inadmissible, appellants failed to meet their burden to produce 
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admissible contradictory evidence creating a genuine issue of 

material fact to rebut appellees’ prima facie case.

Appellants’ “Petition for Removal of Guardian and 

Appointment of Successor Co-Guardians and Co-Conservators” 

set forth specific allegations that Hytrek’s continued appointment as guardian was “no longer in the best interests of 

[Aimee].” Appellants sought removal of Hytrek pursuant to 

§ 30-2616.

Section 30-2616 governs resignation or removal proceedings 

in cases involving guardians of minors. Appellants should have 

sought Hytrek’s removal under § 30-2623, which provides, 

“On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor 

if in the best interests of the ward.” Even if appellants had 

sought removal of Aimee’s guardian under § 30-2623, appellants did not amend their petition following the resignation 

of Hytrek, so the allegations in the petition did not pertain to 

the acting successor guardian, Dempsey-Cook. Although this 

does not make this issue moot, appellants failed to establish 

a basis for removal of the acting successor guardian. Further, 

as previously discussed, appellants were unable to provide 

evidence that Deborah was competent to serve as guardian 

and appellants offered no evidence that Dempsey-Cook was 

unfit or unable to perform the duties incumbent upon her. The 

record shows appellants failed to show that it was in Aimee’s 

best interests to remove Dempsey-Cook as the temporary successor guardian.

We have considered the briefs and supplemental briefs and 

find, for the foregoing reasons, the county court did not err in 

granting the joint motion for summary judgment.

(b) “[P]referred [I]ndividual” to Be 

Appointed as Guardian

Appellants argue that Deborah is a “preferred individual” to 

be appointed as guardian and/or conservator for Aimee under 
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Neb. Rev. Stat. § 30-2627 (Reissue 2016). Brief for appellants 

at 26. Section 30-2627(a) provides that “[a]ny competent person” may be appointed guardian of a person alleged to be incapacitated and that nothing in this subsection prevents spouses, 

adult children, parents, or relatives of the person alleged to 

be incapacitated from serving in that capacity. Subsection (b) 

of § 30-2627 provides that persons who are not disqualified 

by subsection (a) of § 30-2627 and who exhibit the ability to 

exercise the powers to be assigned by the court have priority in 

the order listed. Section 30-2627(b)(4) allows a parent to serve 

as a guardian.

However, as previously stated, Deborah’s psychological evaluation explicitly states Peterson’s opinion that Deborah is “not 

competent to serve as [Aimee’s] legal guardian.” (Emphasis in 

original.) In the absence of evidence to contradict Peterson’s 

opinion, Deborah could not meet the listed qualifications for an 

appropriate guardian under § 30-2627(a). Therefore, she does 

not have priority to be appointed under § 30-2627(b).

(c) “Limited Evidence” to Support 

Summary Judgment

Appellants assert the court erred in finding Deborah was 

not suited to be appointed as coguardian and coconservator for 

Aimee, “based upon the limited evidence before the county 

court.” Brief for appellants at 24-25. Appellants state that the 

summary judgment was based upon the affidavits of Troyer 

and Peterson, whose opinions are “filled with information 

provided to them by third parties for the purpose of expressing their opinions, without the benefit of cross-examination.” 

Id. at 25.

Appellants liken the affidavits of Troyer and Peterson 

to the affidavit of Cahill. However, the distinction is that 

Cahill’s affidavit seemed to be supported only by his interaction with Deborah and the information she provided him 

about Aimee. Conversely, Peterson’s affidavit was based upon 

her personal observations of and information received during 
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Deborah’s psychological evaluation. Troyer’s affidavit was 

based upon observations and information received through 

his personal interactions with Aimee and Deborah in family 

therapy, as well as his review of the psychological evaluation completed by Peterson, a fellow medical professional. 

Because portions of Cahill’s affidavit were excluded, the affidavits of Troyer and Peterson were the only admissible, relevant evidence regarding Deborah’s capability to be Aimee’s 

guardian. Appellants did not meet their burden of proof to 

show a genuine issue of material fact, and therefore, the court 

did not err in granting summary judgment based upon the 

evidence before it.

(d) Opportunity to 

Cross-Examine Witnesses

Appellants argue that Deborah was not given the opportunity to cross-examine Troyer or Peterson regarding the statements in their affidavits and whether the conclusions were 

supported by the facts.

[20] Appellants never requested a continuance for the purpose of deposing Troyer or Peterson, nor did they ask the court 

for an in-court evidentiary hearing. Appellants did not object 

to Peterson’s affidavit for purposes of the summary judgment motion. Appellants did not object to Troyer’s affidavit 

on grounds that there was no opportunity to depose or crossexamine him. An issue not presented to or decided by the trial 

court is not appropriate for consideration on appeal. Wayne L. 

Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 

(2017). A litigant’s failure to make a timely objection waives 

the right to assert prejudicial error on appeal. In re Estate of 

Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

(e) Best Interests

Appellants assert that the county court erred in making 

a determination of the best interests of Aimee on a summary judgment basis and in dismissing Deborah’s petition and 
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appointing Dempsey-Cook as guardian. Appellants acknowledge that the motion for summary judgment sought a finding 

that it was not in Aimee’s best interests for Deborah to be 

appointed. Appellants then state that the county court “never 

got to the issue of the best interests of Aimee,” because the 

only evidence offered pertained to Deborah’s qualification to 

serve as guardian. Brief for appellants at 29. It is puzzling for 

appellants to assert that the court made a determination regarding best interests, and then state that the court never reached 

this issue. Nonetheless, it appears appellants’ argument is that 

requiring appellants to present the evidence of their entire case 

on summary judgment gives appellees an unfair advantage at 

trial. Specifically, appellants argue that the motions for summary judgment were intended to force:

Deborah . . . to give up all her evidence in support of her 

Petition prior to trial to the opposing side through affidavit and give the moving parties the unfair opportunity to 

attempt to contradict all such evidence at trial. Deborah 

. . . should not be required to give such an advantage to 

the opposing side.

Id. at 29.

Appellants argue that Deborah provided sufficient evidence 

on the issue of her competence and qualifications to establish a 

genuine issue of material fact, “which was all that was required 

of her at the time of the hearing on the Summary Judgment.” 

Id. at 30. Although it is true that appellants were required to 

establish only a genuine issue of material fact, the record shows 

that they failed to present sufficient evidence to meet their burden of proof. If Deborah was unable to present any evidence at 

the summary judgment hearing to support her assertion that she 

is a competent and qualified person to be Aimee’s guardian, 

then it stands to reason that it is not in Aimee’s best interests 

for Deborah to be appointed as her guardian.

As part of appellants’ argument that the court relied upon 

limited information in determining Deborah was not suitable 

to be appointed, appellants argue that Deborah “never got 
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the opportunity to present her evidence to the County Court 

concerning her qualifications to serve as Co-Guardian and 

Co-Conservator for [Aimee].” Id. at 25. However, this is not 

an accurate statement. When given the opportunity to present 

evidence, appellants offered exhibit 16, which was objected 

to by the GAL and the guardian on hearsay, relevance, and 

foundation grounds. After a discussion, the court took exhibit 

16 under advisement, stating that it would be reviewed and 

the ruling on the exhibit would be in the court’s order. When 

given the opportunity to do so, appellants offered no further evidence.

It appears that appellants made a strategic decision to be 

selective in the testimony they offered in opposition to appellees’ summary judgment motion. As a result, when the portions 

of Cahill’s affidavit which were crucial to appellants’ theory 

of the case were excluded, appellants were left with no other 

competent, admissible evidence to rebut the evidence presented by appellees. Nothing prevented appellants from offering additional evidence at the hearing to show why Deborah 

should be reappointed as Aimee’s guardian, but they chose not 

to do so.

[21] Generally, a party cannot complain of error which the 

party has invited the court to commit. Becher v. Becher, 299 

Neb. 206, 908 N.W.2d 12 (2018). Appellants were on notice 

that Aimee’s best interests were at issue in appellees’ summary 

judgment motion. Appellants had the opportunity to present 

any evidence regarding Deborah’s qualifications and Aimee’s 

best interests, but, after presenting only Cahill’s affidavit, 

appellants either had no further evidence or chose to reserve 

any additional evidence for trial. We find this assignment of 

error fails.

3. Frivolous Pe

Appellants argue the court abused its discretion in finding 

appellants’ petition was frivolous and in awarding attorney 

fees to the GAL’s attorney.
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(a) Petition Was Frivolous

[22] Section 25-824(2) provides generally that a court can 

award reasonable attorney fees and court costs against any 

attorney or party who has brought or defended a civil action 

that alleges a claim or defense that a court determines is frivolous or made in bad faith. In the context of § 25-824, a frivolous action is one in which a litigant asserts a legal position 

wholly without merit; that is, the position is without rational 

argument based on law and evidence to support the litigant’s 

position. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 

427 (2010). The term “frivolous” connotes an improper motive 

or legal position so wholly without merit as to be ridiculous. Id.

Appellants argue that the fact that Deborah filed for reappointment as coguardian and coconservator does not make 

the proceeding frivolous. The record shows that the county 

court’s reasoning for finding the petition was frivolous was not 

solely based upon the fact that Deborah had been previously 

appointed as guardian and had relinquished her role.

Section 30-2623 states that a court may remove a guardian and appoint a successor if it is in the best interests of 

the ward. In its order, the county court listed the nine allegations appellants asserted in their petition in support of their 

claim that Hytrek’s continued appointment as guardian was 

not in Aimee’s best interests. The court found the petition to 

be frivolous because, based on her testimony, Deborah had 

no information to substantiate the claims in the petition that 

Hytrek was not acting in Aimee’s best interests. Deborah 

did not have frequent contact with Hytrek, she did not know 

whether there was a care plan in place for Aimee, and she did 

not express any concerns about Hytrek to Hytrek or the staff at 

Sunrise, Aimee’s place of residence. There is ample evidence 

that the allegations against Hytrek were not brought in good 

faith, but, rather, they were brought because any appointed 

guardian would need to be removed before Deborah herself could be reappointed. After Hytrek resigned as guardian, 
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Dempsey-Cook was appointed to replace her, but the petition 

was never amended to include specific allegations regarding 

Aimee’s best interests as they related to Dempsey-Cook.

Upon the joint motion for summary judgment filed by appellees, appellants provided no credible evidence that it was in 

the best interests of Aimee to have Hytrek or Dempsey-Cook 

removed. In addition, as previously discussed, appellants did 

not present any credible evidence that Deborah was competent 

to serve as coguardian.

Further, appellants provided no evidence at all that June 

was competent to serve as coguardian. June became involved 

in this case at the request of Deborah, when “[s]he realized 

that she couldn’t do it alone any more, and she wanted to have 

someone to do it with her.” The evidence shows the information June had about Aimee’s condition was received secondhand, from Deborah. The evidence shows that the information 

that Deborah provided to June was not accurate, especially 

with regard to the condition Aimee was in when Deborah relinquished her role as guardian in 2011.

The record indicates that Deborah made little or no progress toward becoming an effective guardian between relinquishing her role in 2011 and filing the petition in 2013. The 

county court’s order indicates that Deborah knew, or should 

have known, that her lack of progress would disqualify her 

from being appointed again at that time, and thus, the petition 

was frivolous.

Deborah testified that the role of guardian is to do what 

the ward desires. During the time Deborah acted as Aimee’s 

guardian, Deborah acquiesced to Aimee’s desires and Aimee’s 

condition deteriorated to the point that Aimee had not bathed 

in 2 years, she refused to leave her apartment, and she did not 

engage in the activities of daily living. The court noted that 

Deborah’s philosophy is what “got Aimee into the condition 

she was in when she was taken by police to [the hospital] 

on January 22, 2011.” Aimee was found screaming in her 

apartment, and when she was admitted to the hospital, she 
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was psychotic, disoriented, and malnourished and her personal 

hygiene was “badly neglected.” These events led to a report 

to Adult Protective Services, and ultimately, Deborah relinquished her role as guardian of Aimee. Deborah was placed on 

the “Central Registry,” a list for those who have been proved 

or are suspected to be neglectful or abusive of vulnerable 

adults. After a review of the case, the record was amended, 

Deborah’s name was removed from the registry, and the record 

was expunged. The court noted that Deborah struggled with 

the dual role of being Aimee’s mother and her guardian, and it 

found that for Deborah to be “re-appointed Aimee’s Guardian 

or Co-Guardian, she would have to have overcome the issues 

that prevented her from meeting Aimee’s needs” when she was 

the guardian.

The psychological evaluation conducted by Peterson shows 

that Deborah does not currently have the skills to be Aimee’s 

guardian or coguardian, and Peterson stated that Deborah is 

not competent to serve. It is true that in previous proceedings 

the court stated that Deborah could apply to be reappointed, 

but the county court found that it “should be apparent” 

that if Deborah was the subject of a petition to remove her 

as Aimee’s guardian, then she should address and resolve 

the issues that led to the petition’s being filed before she 

could be considered for reappointment. The court found that 

Deborah had not corrected these issues, and this contributed 

to the court’s finding that the petition to remove Hytrek 

was frivolous.

Appellants had no evidence to support the allegations contained in their petition seeking removal of Hytrek, nor did they 

have a basis in either fact or law for the removal of DempseyCook. Furthermore, Deborah had not taken any steps to remedy the shortcomings that led to the filing of the petition for 

her removal as Aimee’s guardian. Because appellants’ position 

was without rational argument based on law and evidence, 

the petition was frivolous and the county court did not err in 

so finding.
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(b) Award of Attorney Fees

[23] On appeal, a trial court’s decision allowing or disallowing attorney fees for frivolous or bad faith litigation will 

be upheld in the absence of an abuse of discretion. Central 

Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 

N.W.2d 252 (2010).

In determining the amount of “a cost or an attorney’s fee 

award” pursuant to § 25-824, the court shall exercise its sound 

discretion. Neb. Rev. Stat. § 25-824.01 (Reissue 2016). When 

granting an award of attorney fees and costs, the court shall 

specifically set forth the reasons for such award. In determining whether to assess attorney fees and costs and the amount 

to be assessed against offending attorneys and parties, the 

court considers a number of factors, including, but not limited 

to, the 10 factors listed in § 25-824.01. This court found that 

the petition was frivolous, pursuant to § 25-824.01(1) through 

(3), (5) through (7), and (10), and that the GAL’s attorney fees 

should be paid by appellants. Specifically, the court found that 

Deborah should be responsible for the fees, because June joined 

the petition as a friend of Deborah and June was unaware of 

many of the crucial details of this case.

The evidence shows that appellants failed to make an effort 

to determine the validity of their claims; failed to amend the 

petition to reflect the resignation of Hytrek; and failed to dismiss the claims, which were found to be invalid. The court 

ruled against Deborah in many material motions in this case. 

Each of these factors support the court’s imposition of reasonable attorney fees and costs of Turner’s counsel.

Appellants argue Deborah should not be held responsible for 

attorney fees for the attorney representing the GAL, because, 

they assert, Turner exceeded the scope of her role in these proceedings. Appellants cite case law regarding the role of a GAL 

in juvenile court, acknowledging that Nebraska law has been 

modified by statute, specifically allowing a GAL to conduct 

discovery, present and cross-examine witnesses, present other 

evidence, file motions, and appeal any decisions regarding the 
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person for whom he or she has been appointed. As previously 

discussed, the cases cited by appellants involve juveniles, 

rather than an incapacitated adult. Neb. Rev. Stat. § 30-2620.01 

(Reissue 2016) provides for 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, which may be 

assessed against a petitioner upon a showing that the action 

was frivolous.

At the hearing on August 22 and 29, 2016, Turner testified 

that this is “by far one of the more time-consuming and complex cases” she has been involved in due, in part, to the number 

of motions to respond to and the “litigious nature of the parties 

in trying to just ensure the best interest of the ward is being 

met.” We found, above, that the county court did not abuse its 

discretion in determining that the petition was frivolous. Due to 

the ongoing nature of this case, and the numerous overlapping 

proceedings, we find the court could reasonably conclude that 

a GAL’s attorney fees are included in the definition of “reasonable fees and costs” incurred by an appointed GAL. We affirm 

the county court’s award of attorney fees.

Appellants also argue that the county court made an error 

of law concerning the source of fees and costs for the GAL 

and that “the only way for the attorneys for the [GAL] to 

be paid for their services was for the County Court to assess 

attorney’s fees and costs against Deborah . . . on the basis of a 

frivolous proceeding.” Brief for appellants at 35. As previously 

discussed, the GAL’s fees were within the scope of reasonable 

fees and costs incurred as a result of this proceeding, which was 

determined to be frivolous. To the extent that appellants argue 

that they should not have to reimburse the county for the fees 

already paid, this alleged error was not specifically assigned 

and specifically argued, and therefore, we will not address it. 

See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 

(2018) (to be considered by appellate court, alleged error must 

be both specifically assigned and specifically argued in brief of 

party asserting error).
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(c) Denial of Motion to 

Alter or Amend

Appellants assert that Deborah was denied substantive and 

procedural due process, because their motion to alter or 

amend was overruled without a hearing, and that appellants 

were denied substantive and procedural due process, because 

the motion was not heard by the same judge who heard the 

matter and issued the orders of July 24, 2015, and December 

1, 2016.

In support of their argument, appellants cite Newman v. 

Rehr, 10 Neb. App. 356, 630 N.W.2d 19 (2001), in which 

the issue was whether a replacement or substitute judge may 

enter the judgment that the former judge indicated he or she 

would have entered. This case is distinguishable. The record 

shows that Judge Susan M. Bazis presided over the hearings 

on appellees’ summary judgment and fee motions. She decided 

each of these motions and entered orders and judgments 

accordingly.

Judge Marcena M. Hendrix presided over the hearing on 

March 27, 2017. At a hearing on May 23, Judge Derek R. 

Vaughn informed the parties that Judge Stephanie S. Shearer 

would be the permanent judge in this case. At the hearing on 

June 22, Judge Shearer stated she would be assuming Judge 

Bazis’ caseload, including this case, going forward. During 

that hearing, Judge Shearer stated that she had reviewed the 

record and the findings of Judge Bazis and determined that she 

did not need to hear argument on appellants’ motion to alter or 

amend. At that point, the motion was overruled. Appellants cite 

no case law to support their position that a motion to alter or 

amend cannot be ruled on by a judge other than the judge who 

entered the judgment.

Appellants assert that they were “unfairly surprised” by 

Judge Shearer’s ruling on the motion, because they had been 

“advised that no substantive matters would be addressed at that 

hearing.” Brief for appellants at 39. Appellants cite no case 

law for the proposition that it is a violation of procedural or 
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Nebraska Court of Appeals Advance S

26 Nebraska Appellate Repor

IN RE GUARDIANSHIP OF AIMEE S.

Cite as 26 Neb. App. 380

substantive due process to overrule a motion without receiving oral argument, and we know of no authority requiring a 

judge to hold a hearing on a motion to alter or amend. Thus, 

we find the court’s decision to rule on the motion to alter or 

amend at the June 22, 2017, hearing without allowing further 

argument on the motion does not violate appellants’ substantive and procedural due process rights.

VI. CONCLUSION

We find the county court did not err in granting appellees’ 

joint motion for summary judgment or in overruling appellants’ 

motion to alter or amend. We find the court did not abuse its 

discretion in finding appellants’ petition was frivolous or in 

awarding attorney fees. We therefore affirm the judgment of 

the county court.

Affirme