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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

In re Guardianship and Conservator

Alice H., an incapa

protected perso

Jodie Haferbier McGill, Success

and Conservator, appellee, v. Dou

County, Nebraska, appellan

___ N.W.2d ___

Filed May 24, 2019. No. S-18-780.

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

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

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Courts: Jurisdiction. Under Neb. Rev. Stat. § 25-2720.01 (Reissue 

2016), county courts have the power to vacate or modify their own judgments and orders during or after the term in which they were made in 

the same manner as provided for district courts.

4. Guardians and Conservators: Counties: Attorney Fees: Costs. Under 

Neb. Rev. Stat. § 30-2620.01 (Reissue 2016), a court may order the 

county to pay the reasonable fees and costs of an attorney appointed 

by the court for the incapacitated person, but only if the incapacitated 

person does not possess an estate.

5. ____: ____: ____: ____. Under Neb. Rev. Stat. § 30-2643 (Reissue 

2106) a court may order the county to pay the reasonable fees and costs 

of an attorney appointed by the court for the protected person, but only 

if the protected person does not possess an estate.

Appeal from the County Court for Douglas County: Marc

M. Hendrix, Judge. Affirmed in part, and in part rever

Nebraska Supreme Court Online Library

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

07/26/2019 08:06 AM CDT
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

Donald W. Kleine, Douglas County Attorney, Timothy K. 

Dolan, and Tess M. Moyer for appellant.

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg

Stacy, 

In 2016, the county court for Douglas County surcharged 

a former guardian-conservator and ordered her to pay, among 

other things, $37,505.70 in attorney fees to the successor 

guardian-conservator. The former guardian-conservator paid 

only a portion of the attorney fees, and in 2018, the successor 

guardian-conservator asked the court to order Douglas County 

to pay the balance. The court granted that request, and Douglas 

County appeals. Because the record contains no evidence that 

the ward did not possess an estate from which the attorney fees 

could be paid, we reverse that portion of the order.

BACKGROUND

In 2007, a guardianship-conservatorship was established for 

Alice H. (the ward) in Douglas County. The ward’s adult daughter, Pamela Grimes, was appointed her guardian-conservator.

In 2012, the court was notified that Grimes had not been 

paying the ward’s nursing home bills and had refused to sell 

the ward’s home, which had become infested with bugs. The 

nursing home sought the appointment of a nonfamily member 

to serve as guardian-conservator for the ward. A hearing was 

held, and the court appointed attorney Jodie Haferbier McGill 

to serve as the ward’s guardian-conservator.

Application for S

After her appointment, McGill filed an application for surcharge, alleging Grimes had misappropriated the ward’s funds. 

The application alleged that $ 26,914.91 of the ward’s funds 

were “unaccounted for” and sought to have Grimes surcharged 

“in an amount that the Court deems appropriate.” The application also sought an award of attorney fees.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

An evidentiary hearing on the application was held on 

February 19, 2016. Grimes appeared pro se, and McGill represented herself. McGill offered into evidence an affidavit 

in which she averred that she spent 20.5 hours initiating and 

prosecuting the surcharge action, at a rate of either $180 per 

hour for an attorney or $60 per hour for an assistant, for a total 

of $2,360. At the hearing, however, McGill also indicated she 

planned to amend her affidavit “to include the unpaid amount 

for my attorney’s fees for acting as guardian/conservator.”

McGill filed such an amended affidavit on March 8, 2016. 

The amended affidavit itemized all the time McGill had spent 

on the case in her capacity as a guardian-conservator, averring 

she spent 219.36 hours at an hourly rate of $180 for an attorney or $60 for an assistant, for a total of $37,252.20, plus costs 

and expenses of $253.50. The amended affidavit included the 

20.5 hours McGill attributed in her earlier affidavit to initiating 

and prosecuting the surcharge action.

On March 9, 2016, the court entered an order granting the 

application for surcharge. The court found that Grimes “misappropriated several thousand dollars of the ward’s income 

and assets” and “utilized the ward’s bank account for her own 

personal use.” It also found McGill was an attorney who spent 

time “in furtherance of duties on the legal issues in this matter” at rates that were fair and reasonable. The order directed 

Grimes to “purchase a prepaid funeral policy for [the ward] 

as restitution for the misappropriated funds.” The order also 

sustained McGill’s amended motion for attorney fees and specifically ordered Grimes to: “Pay the Successor Guardian and 

Conservator’s attorney’s fees in the amount of $37,505.70 to 

. . . McGill. This amount shall accrue interest at the judicial 

rate of 2.510% until paid in full.”

No appeal was taken from this 2016 order.

2018 Application for Ap

of Attorney F

In March 2018, McGill filed an application and supporting affidavit for approval of attorney fees in the amount of 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

$2,088 plus costs of $12.57 as “payment for the work done 

[as guardian-conservator from] March 9, 2017 to February 9, 

2018.” This was the only relief requested in the application. 

The supporting affidavit averred that the ward had died and 

referenced bank assets of $1,768.76 as of February 21. The 

affidavit sought an order directing the bank assets to be applied 

toward the $2,088 in attorney fees.

The affidavit also made several additional requests that were 

unrelated to the motion seeking $2,088 in attorney fees. As relevant to this appeal, the affidavit referenced the court’s March 

9, 2016, order requiring Grimes to pay McGill’s attorney 

fees, and averred that Grimes had paid only $100 and owed 

“an outstanding total balance of $42,990.23.” The affidavit 

requested that Douglas County be ordered to pay the balance 

of the attorney fee award at the reduced hourly rate of $60 per 

hour for a total of $15,160.64, but also asked that “Grimes be 

liable for any and all unpaid portions of the total balance of 

the account.” In an amended affidavit, McGill asked that the 

“balance of the order entered on March 9, 2016” be paid by 

Douglas County “at the reduced rate of $80 per hour for a total 

of $15,725.60.”

At a hearing on June 22, 2018, the county court took up 

several matters, including McGill’s application for approval 

of attorney fees, and a separately filed motion to terminate 

the guardianship which is not in our record. Douglas County 

appeared at the hearing to oppose McGill’s request that the 

county be ordered to pay the balance of the attorney fees 

previously taxed to Grimes. After the hearing, the county 

court entered two orders. The first order was filed the same 

day as the hearing, and the second was filed approximately 1 

week later.

In its first order, the “Douglas County Court Fund” was 

ordered to pay two sums: (1) “[g]uardian fees in the amount of 

$1,923.57” and (2) “the balance of the order entered March 9, 

2016 in the amount of $17,649.17 . . . for prior Guardian Fees 

and expenses incurred by . . . McGill in her duties as Guardian 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

of [the ward].” The second order, entered June 29, terminated 

the guardianship-conservatorship, approved the final accounting, and ordered the “Douglas County Court” to pay two 

sums: (1) attorney fees of $1,923.57 for McGill’s “current 

fees” and (2) prior attorney fees and expenses in the sum of 

$15,725.60. Additionally, the court ordered that $1,768.76 was 

“to be paid from [the ward’s] American National Bank trust 

account” to McGill.

Motions to Alter or

On June 27, 2018, Douglas County filed a motion to alter or 

amend the June 22 order and filed an amended motion the next 

day. The county did not ever seek to alter or amend the order 

entered June 29.

As to the order of June 22, 2018, Douglas County asked 

the court to amend the requirement that Douglas County “pay 

the Successor Guardian and Conservator the balance of an 

earlier order entered March 9, 2016 (said balance totaling 

$17,649.17).” The county argued the fees had been assessed 

against Grimes due to her misappropriation of the ward’s 

funds and claimed it would violate public policy to require 

the county to expend taxpayer funds to indemnify Grimes for 

her private misconduct. Douglas County did not challenge 

the June 22 order to the extent it required Douglas County to 

pay the guardian-conservator’s “current fees” in the amount 

of $1,923.57.

On July 11, 2018, a hearing was held on the motions to alter 

or amend. No evidence was adduced. Douglas County argued 

that although the March 2016 order had not cited any statutory authority for ordering Grimes to pay McGill’s attorney 

fees, the court likely relied on Neb. Rev. Stat. § 30-2658(b) 

(Reissue 2016). That statute provides in relevant part that a 

conservator is individually liable for torts committed in the 

course of administration of the estate if he or she is personally 

at fault. Douglas County argued that by assessing a surcharge 

in March 2016, the court found Grimes was individually liable 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.

Cite as 303 Neb. 235

for the amount surcharged. The county’s argument characterized the entire $37,505.70 judgment against Grimes as relating to the time McGill spent investigating and prosecuting 

Grimes’ misappropriation.

On July 27, 2018, the court entered an order granting, in 

part, the county’s motions, and amending its prior order “to 

the extent that the Guardian’s hourly rate is reduced to $50.00 

per hour. It is further ordered that Douglas County Court pay 

. . . McGill $10,968.00.”

On August 8, 2018, Douglas County filed a notice purporting to appeal from the court’s orders of June 22 and July 

27. We moved this case to our docket on our own motion. 

McGill has not filed a brief or otherwise participated in this 

appeal.

ASSIGNMENTS OF ERROR

Douglas County assigns, restated, that the county court erred 

in (1) modifying its 2016 order 2 years after issuing it and (2) 

ordering Douglas County to assume Grimes’ personal liability 

for paying McGill’s attorney fees.

STANDARD OF REVIEW

[1,2] An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record in the 

county court.1 When reviewing a judgment for errors appearing 

on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable.2

ANALYSIS

As a threshold matter, we note that although Douglas County 

seeks to appeal from the orders of June 22 and July 27, 2018, 

the order of June 22 was effectively superseded by the order of 

1 In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 

N.W.2d 856 (2015).

2 Id.
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June 29. We thus focus our analysis on the final order of July 

27, which purported to modify the order of June 29.

2016 Order Not Vaca

or Modif

[3] Douglas County first argues that the county court’s 

order was improper because it vacated or modified the March 

2016 order without legal authority. County courts have the 

power to vacate or modify their own judgments and orders 

during or after the term in which they were made in the same 

manner as provided for district courts.3 But on this record, we 

cannot find that when the county court entered its July 27, 

2018, order, it also vacated or modified its earlier order of 

March 2016.

The court’s March 2016 order required Grimes to pay McGill 

attorney fees in the amount of $37,505.70. The court’s July 27, 

2018, order required Douglas County to pay McGill attorney 

fees of $10,968 for the same period. Neither the July 27 order 

nor the June 29 order referenced, expressly or impliedly, the 

March 2016 order.

Douglas County assumes the July 27, 2018, order sought 

to modify the March 2016 order, because both orders relate to 

McGill’s attorney fees for the same time period. But the fact 

that both orders relate to payment of McGill’s attorney fees 

does not compel the conclusion that the latter order vacated or 

modified the former. Two parties can both be responsible for 

the same financial obligation,4 and the record indicates that in 

2018, when McGill asked the court to order Douglas County 

to pay a portion of the 2016 attorney fee award, she expressly 

asked that Grimes also remain liable.

On this record, we find no merit to Douglas County’s contention that the order of July 27, 2018, vacated or modified 

3 See In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017), 

citing Neb. Rev. Stat. § 25-2720.01 (Reissue 2016).

4 See, generally, Cano v. Walker, 297 Neb. 580, 901 N.W.2d 251 (2017).
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the March 2016 order, and we proceed to the consideration of 

whether the July 27 order conformed to the law, was supported 

by competent evidence, and was neither arbitrary, capricious, 

nor unreasonable.5

No Personal Liability

Douglas County argues it would violate public policy to 

make the county pay sums the court previously ordered Grimes 

to pay individually because of her wrongful conduct. This 

argument is premised on the county’s assumption, expressed 

repeatedly before the county court and in its briefing to this 

court, that the $37,505.70 in attorney fees Grimes was ordered 

to pay in the March 2016 order is related to time McGill spent 

investigating and prosecuting the surcharge action.

But the record here, specifically the affidavits submitted by 

McGill at the time the surcharge action was tried, does not 

support Douglas County’s assumption that the $37,505.70 in 

attorney fees was attributable to Grimes’ misappropriation. 

To the contrary, the record shows the actual attorney fees 

incurred by McGill in investigating and prosecuting the surcharge were approximately $2,300, and the remainder of the 

$37,505.70 in fees was incurred by McGill during the course 

of performing her regular duties as the ward’s guardian and 

conservator.

Because the record does not support Douglas County’s contention that the $37,505.70 in attorney fees was incurred as a 

result of investigating or proving Grimes’ misconduct, there is 

no merit to the related argument that it would therefore violate 

public policy to require Douglas County to pay a portion of 

those fees.

Order to Pay Fees Was Impro

Without Evi

The court entered three separate orders directing Douglas 

County to pay McGill’s attorney fees, and none cited any 

5 In re Guardianship & Conservatorship of Barnhart, supra note 1.
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authority for doing so. Our review of the relevant authority 

indicates two statutes under which the county may be ordered 

to pay such fees. The first is Neb. Rev. Stat. § 30-2620.01 

(Reissue 2016), which applies in guardianship proceedings for 

incapacitated persons and provides in relevant part:

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, and a visitor appointed by the 

court for the person alleged to be incapacitated shall be 

allowed, disallowed, or adjusted by the court and may be 

paid from the estate of the ward if the ward possesses an 

estate or, if not, shall be paid by the county in which the 

proceedings are brought or by the petitioner as costs of 

the action.

The second is Neb. Rev. Stat. § 30-2643 (Reissue 2016), which 

applies in conservatorship proceedings and provides in relevant part:

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, a conservator, a special conservator, and a visitor appointed by the court for the 

person to be protected shall be allowed, disallowed, or 

adjusted by the court and may be paid from the estate of 

the protected person if the protected person possesses an 

estate or, if not, shall be paid by the county in which the 

proceedings are brought or by the petitioner as costs of 

the action.

These statutes authorize a court to “allow[], disallow[], or 

adjust[]” the payment of “reasonable fees and costs” of an 

attorney appointed by the court for an incapacitated person in 

guardianship proceedings or for a protected person in conservatorship proceedings.6

 However, both statutes provide that 

if the incapacitated person or protected person “possesses an 

estate,” the fees “may be paid from the estate.”7 And both statutes provide that if the incapacitated person or protected person 

6 §§ 30-2620.01 and 30-2643.

7 Id.
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does not possess an estate, then the fees and costs “shall be 

paid by the county in which the proceedings are brought or by 

the petitioner as costs of the action.”8

[4,5] Under either statute, then, the county can be ordered 

to pay reasonable attorney fees only if the incapacitated person or protected person does not possess an estate. But in the 

instant guardianship-conservatorship proceeding, the record on 

appeal contains neither findings nor evidence regarding the 

extent of the ward’s estate. There were arguments presented 

suggesting the ward was indigent, but counsel’s arguments are 

not evidence.9 And although an affidavit was received averring 

the ward had a small sum of money in one bank account at the 

time of her death, this alone is not sufficient for the county 

court, or for this court, to conclude the ward does not “possess[] an estate” under § 30-2620.01 or § 30-2643.

On this record, we cannot find that either § 30-2620.01 or 

§ 30-2643 provides statutory authority for the court’s order 

directing Douglas County to pay McGill’s attorney fees. We 

have not been directed to any alternative authority or recognized course of procedure to support an order requiring 

Douglas County to pay McGill’s attorney fees, and we therefore cannot find the order of the county court conforms to the 

law or is supported by competent evidence.

CONCLUSION

On this record, we cannot find the county court’s order of 

July 27, 2018, conformed to the law and was supported by 

competent evidence to the extent it directed Douglas County to 

pay McGill’s attorney fees. We thus reverse that portion of the 

order, and in all other respects, the order is affirmed.

Affirme in part,and in part re

8 Id.

9 Hausman v. Cowen, 257 Neb. 852, 601 N.W.2d 547 (1999).