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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.

Cite as 307 Neb. 452

In re Guardianship and Conservatorship of J.F., 

a child under 18 years of age. 

Gerald F., appellant, v. Misty B., appellee.

___ N.W.2d ___

Filed October 9, 2020. No. S-19-1123.

1. Estates: Appeal and Error. An appellate court reviews probate cases 

for error appearing on the record made in the county court.

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

appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.

3. Guardians Ad Litem: Fees: Appeal and Error. In considering a trial 

court’s order concerning the payment of guardian ad litem fees, the 

allowance, amount, and allocation of guardian ad litem fees is a matter within the initial discretion of a trial court, involves consideration 

of the equities and circumstances of each particular case, and will not 

be set aside on appeal in the absence of an abuse of discretion by the 

trial court.

4. Judgments: Words and Phrases. A judicial abuse of discretion exists 

when a judge, within the effective limits of authorized judicial power, 

elects to act or refrains from acting, but the selected option results in a 

decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a 

judicial system.

5. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

6. Costs. Under Nebraska law, the costs of litigation and expenses incident 

to litigation may not be recovered unless provided for by statute or a 

uniform course of procedure.

7. ____. Whether costs and expenses are authorized by statute or by the 

court’s recognition of a uniform course of procedure presents a question 

of law.

Nebraska Supreme Court Online Library

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

10/23/2020 01:07 AM CDT
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.

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8. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

9. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

10. Statutes: Legislature: Intent. It is a court’s duty to discover, if possible, legislative intent from the statute itself.

11. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

12. Statutes: Legislature: Intent. Repeal by implication is strongly disfavored, unless made necessary by the evident intent of the Legislature.

13. Statutes. A statute will not be considered repealed by implication unless 

the repugnancy between the new provision and the former statute is 

plain and unavoidable.

14. Statutes: Legislature: Intent. In determining whether a new enactment 

is repugnant, a court looks at the new enactment for any indication of an 

evident legislative intent to repeal the former statute.

15. ____: ____: ____. In the absence of clear legislative intent, the construction of a statute will not be adopted which has the effect of nullifying or 

repealing another statute.

16. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

17. ____. In order to be considered by an appellate court, an alleged error 

must be both specifically assigned and specifically argued in the brief of 

the party asserting the error.

Appeal from the County Court for Holt County: Kale B. 

Burdick, Judge. Affirmed.

Charles W. Balsiger, of Carney Law, P.C., for appellant.

Brent M. Kelly, Holt County Attorney, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

Gerald F. petitioned to be appointed guardian and conservator of a minor child. Gerald also moved for the appointment 

of a guardian ad litem (GAL) to represent the interests of the 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.

Cite as 307 Neb. 452

minor child, which motion was sustained by the county court. 

After trial, the court granted Gerald’s petition to be appointed 

guardian and conservator. The court ordered Gerald to pay the 

GAL’s reasonable fees and costs. Gerald appeals the order to 

pay fees and costs, arguing that the court’s order was not statutorily authorized. Because the court had statutory authority to 

order the petitioner to pay a GAL’s reasonable fees and costs in 

a proceeding to appoint a conservator, we affirm.

BACKGROUND

On July 18, 2018, Gerald filed a petition in the county court 

for Holt County seeking to be appointed temporary and permanent guardian and conservator of J.F, a minor child. Gerald 

alleged that J.F.’s biological mother, Misty B., is unable to 

properly care for him. Gerald stated that he believed he was 

J.F.’s biological father until a paternity test was completed in 

May 2018, showing he was not. He alleged that he raised J.F. 

as his son and has lived with him since birth and that he is 

concerned Misty will move him to Idaho to live with his grandmother. That day, the county court issued an order appointing 

Gerald as temporary guardian and conservator and setting the 

matter of permanent appointment for a hearing.

On July 24, 2018, Gerald filed a motion for the appointment 

of a GAL. Though Gerald’s motion is not in our record, the 

court referenced the motion in its written order sustaining the 

motion and appointing an attorney as GAL.

The order stated that on July 16, 2018, unbeknownst to the 

court, Misty filed in the district court a petition and affidavit 

to obtain a domestic abuse protection order against Gerald. 

Gerald was personally served that same afternoon with Misty’s 

petition and an order to show cause. On July 23, the district 

court held a hearing and entered a domestic abuse protection 

order against Gerald, under which Misty and J.F. were protected parties. Under the protection order, Gerald was prohibited from having contact with J.F.

The county court found that the granting of the protection order raised a conflict and vacated its order appointing 
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Gerald as temporary guardian and conservator and issued a 

new order appointing Gerald as temporary conservator. The 

court stated that the competing cases appeared to present a custody dispute, and as a result, the court found that J.F.’s interests 

were inadequately represented and appointed the GAL pursuant 

to Neb. Rev. Stat. § 30-2222(4) (Reissue 2016).

On August 13, 2018, the district court issued a modified 

protection order removing J.F. as a protected party.

On August 14, 2018, in the county court, Misty filed an 

objection to guardianship and a motion to dismiss. After a 

hearing on Misty’s objection and motion to dismiss, the court 

overruled both motions. The county court then held a trial on 

the merits on January 24 and 28, 2019. In February, the court 

granted Gerald’s petition and appointed him as J.F.’s permanent 

guardian and conservator over Misty’s objection.

On May 6, 2019, the GAL filed an application for payment 

of fees and costs, with an affidavit and itemized invoice stating that $10,665.57 was incurred for services provided from 

July 25, 2018, to February 7, 2019. The court granted the 

GAL’s application and ordered that pursuant to Neb. Rev. Stat. 

§ 30-2620.01 (Reissue 2016), the GAL’s fees in the amount of 

$10,665.57 shall be paid by the ward’s estate, if the ward possesses an estate: “If not, those fees shall by paid by the petitioner, as the petitioner requested the appointment of the GAL, 

and no evidence has been adduced to support a finding that the 

fees be paid by the county.”

On June 13, 2019, Gerald moved to set aside the court’s 

order, arguing that he was not made aware of the GAL’s application or the hearing. On July 2, the court held a hearing where 

Gerald testified that he did not receive notice of the June 4 

hearing. Gerald argued that because Misty contested the guardianship and conservatorship, she should be responsible for the 

GAL’s fees. However, Gerald did not contest the amount of the 

GAL’s fees or whether the fees were reasonable.

The court stated that it appointed the GAL at Gerald’s 

request and that while it agreed that Misty should be held partially responsible, under the language of § 30-2620.01, only 
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Cite as 307 Neb. 452

J.F., Holt County, or Gerald could be held responsible. The 

court denied Gerald’s motion to set aside.

On September 6, 2019, the GAL moved to compel Gerald to 

comply with the order for payment of fees and costs. The GAL 

further moved for an order finding Gerald in contempt for failing to comply with the court’s June 4 order. The court found 

the GAL’s motions were premature and scheduled a hearing 

to determine whether J.F. possessed an estate and whether any 

such estate could pay the GAL’s fees.

At the hearing, Gerald claimed that 2016 Neb. Laws, L.B. 

934, repealed by implication § 30-2620.01 and Neb. Rev. Stat. 

§ 30-2643 (Reissue 2016) and that therefore, Holt County 

should be responsible for the GAL’s fees. Gerald argued that 

the matter is instead controlled by Neb. Rev. Stat. § 30-4210 

(Reissue 2016), which allows for payment of fees by the 

county where the protective proceeding is brought, or by the 

person who is the subject of the protective proceeding, and 

does not allow for payment by the petitioner. Holt County 

objected, stating that it was not a party to the proceedings, that 

the case concerns a civil matter in which the county has no 

interest, and that the county had no opportunity to object to the 

appointment of a GAL.

Following the hearing, the court found that J.F. did not possess an estate from which the GAL’s fees could be paid. The 

court also found that the issue was controlled by §§ 30-2620.01 

and 30-2643 and that based on the terms of those provisions, the GAL’s fees “shall be paid by the county in which 

the proceedings are brought or by the petitioner as costs of 

the action.”

The court found that §§ 30-2620.01 and 30-2643 had not 

been repealed by implication or otherwise. The court further 

found that § 30-4210, which pertains to payments for courtordered evaluations of the person who is the subject of the 

guardianship or conservatorship, did not apply to the services 

described in the GAL’s application. The court stated that the 

case was a private custody dispute and that private parties 

should expect to pay the costs associated with their litigation, 
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Cite as 307 Neb. 452

rather than the taxpayers of Holt County. The court found that 

because Gerald requested appointment of a GAL, and because 

Holt County did not have an interest and did not participate in 

the proceedings, Gerald, as the petitioner, must pay the GAL’s 

fees and costs.

Gerald filed an appeal. Holt County filed a brief in opposition. We moved the case to our docket on our own motion.

ASSIGNMENT OF ERROR

Gerald assigns, restated, that the county court lacked statutory authority to order him to pay the GAL’s fees and costs.

STANDARD OF REVIEW

[1,2] An appellate court reviews probate cases for error 

appearing on the record made in the county court. 1 When 

reviewing a judgment for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 2

[3,4] In considering a trial court’s order concerning the 

payment of GAL fees, the allowance, amount, and allocation 

of GAL fees is a matter within the initial discretion of a trial 

court, involves consideration of the equities and circumstances 

of each particular case, and will not be set aside on appeal 

in the absence of an abuse of discretion by the trial court. 3

A judicial abuse of discretion exists when a judge, within the 

effective limits of authorized judicial power, elects to act or 

refrains from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a 

substantial right or a just result in matters submitted for disposition through a judicial system. 4

1 In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716 

N.W.2d 681 (2006).

2 Id.

3 Id.

4 Id.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F.

Cite as 307 Neb. 452

[5] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 5

ANALYSIS

[6,7] The narrow issue presented to us is whether the county 

court was authorized to order Gerald to pay the GAL’s reasonable fees and costs. Under Nebraska law, the costs of litigation 

and expenses incident to litigation may not be recovered unless 

provided for by statute or a uniform course of procedure. 6

Whether costs and expenses are authorized by statute or by the 

court’s recognition of a uniform course of procedure presents a 

question of law. 7

[8-11] In construing a statute, a court must determine and 

give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense. 8 It is not within the province 

of the courts to read a meaning into a statute that is not there or 

to read anything direct and plain out of a statute. 9 It is a court’s 

duty to discover, if possible, legislative intent from the statute 

itself. 10 The intent of the Legislature is expressed by omission 

as well as by inclusion. 11

Here, the court assessed the GAL’s fees to Gerald pursuant 

to §§ 30-2620.01 and 30-2643 under the Nebraska Probate 

Code. Section 30-2620.01 provides in pertinent part:

The reasonable fees and costs of an attorney, a [GAL], 

a physician, and a visitor appointed by the court for the 

person alleged to be incapacitated shall be allowed, 

5 In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).

6 Id.

7 Id.

8 Id.

9 Id.

10 In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).

11 In re Estate of Hutton, supra note 5; In re Adoption of Kailynn D., supra

note 10.
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disallowed, or adjusted by the court and may be paid 

from the estate of the ward if the ward possesses an 

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

proceedings are brought or by the petitioner as costs of 

the action.

(Emphasis supplied.) Section 30-2643 provides in pertinent part:

The reasonable fees and costs of an attorney, a [GAL], 

a physician, a conservator, a special conservator, and a 

visitor appointed by the court for the person to be 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.

The county court was incorrect to rely upon § 30-2620.01, 

because that provision does not apply to an award of fees and 

costs in a guardianship proceeding for a minor. 12 Under article 

26 of the Nebraska Probate Code, there are three distinct 

sections of statutes that apply respectively to (1) a guardianship proceeding for a minor, 13 (2) a guardianship proceeding 

for an incapacitated person, 14 and (3) a conservatorship proceeding for a person under a disability or a minor. 15 Section 

30-2620.01 establishes a recognized uniform course of procedure for the assessment of fees and costs to pay a courtappointed GAL in a guardianship proceeding for an incapacitated person. An incapacitated person is defined as any 

12 See, e.g., In re Guardianship & Conservatorship of Alice H., 303 Neb. 

235, 927 N.W.2d 787 (2019); In re Guardianship of Brydon P., 286 Neb. 

661, 838 N.W.2d 262 (2013); In re Guardianship & Conservatorship of 

Karin P., supra note 1.

13 Neb. Rev. Stat. §§ 30-2605 to 30-2616 (Reissue 2016 & Cum. Supp. 

2018).

14 Neb. Rev. Stat. §§ 30-2617 to 30-2629 (Reissue 2016).

15 Neb. Rev. Stat. §§ 30-2630 to 30-2661 (Reissue 2016 & Cum. Supp. 

2018).
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person who is impaired by reason of mental illness, mental 

deficiency, physical illness or disability, chronic use of drugs, 

chronic intoxication, or other cause (except minority) to the 

extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning 

himself or herself. 16 Section 30-2620.01 is inapplicable based 

on the facts and circumstances of this case.

Here, the court was not authorized to assess the GAL’s fees 

against Gerald pursuant to § 30-2620.01, because the GAL 

was appointed in a guardianship proceeding for J.F., who is 

a minor and not an incapacitated person. As we explained in 

In re Guardianship of Brydon P.,

 17 while the statutes governing a guardianship proceeding for a minor authorize a court 

to appoint an attorney and a GAL for a minor whose interests 

may be inadequately represented, 18 there is no statute governing minor guardianship proceedings which explicitly authorizes 

a court to assess the fees and costs of appointed persons against 

the ward’s estate, a petitioner, or a county.

In In re Guardianship of Brydon P., we found that § 30-2643 

authorizes a court to assess fees and costs for a court-appointed 

person in a conservatorship proceeding, but held that § 30-2643 

does not provide for an award of fees and costs in a guardianship proceeding for a minor. 19 Here, based on the plain and 

ordinary language of § 30-2620.01, we hold that § 30-2620.01 

does not provide for an award of fees and costs in a guardianship proceeding for a minor.

However, the court made clear that it also relied upon 

§ 30-2643 in assessing the GAL’s fees against Gerald. Holt 

County contends that the court’s order was authorized under 

§ 30-2643. We agree.

16 Neb. Rev. Stat. § 30-2601(1) (Reissue 2016).

17 In re Guardianship of Brydon P., supra note 12.

18 See, § 30-2222(4); § 30-2611(d).

19 In re Guardianship of Brydon P., supra note 12.
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Section 30-2643 authorizes a court to allow, disallow, or 

adjust the payment of “reasonable fees and costs” of a GAL 

for a protected person in a conservatorship proceeding. “A 

protected person is a minor or other person for whom a conservator has been appointed or other protective order has been 

made.” 20 Section 30-2643 provides that if a protected person 

“possesses an estate,” the fees “may be paid from the estate.” 

Section 30-2643 also provides that if the protected person does 

not possess an estate, then the fees and costs “shall be paid by 

the county in which the proceedings are brought or by the petitioner as costs of the action.” Here, Gerald has not contested 

the court’s finding that J.F. does not possess an estate from 

which the GAL’s fees could be paid. As a result, the only issue 

is whether Gerald or the county should be required to pay the 

GAL’s fees.

The court found that the proceedings concerned a private domestic dispute in which Holt County was in no way 

involved. The court also found that the case did not concern 

an interest of Holt County or involve a juvenile under the 

jurisdiction of the juvenile court as defined by Neb. Rev. Stat. 

§ 43-247 (Reissue 2016). The court went on to find that the 

county should not be ordered to pay the fees. In this situation, 

the language of § 30-2643 authorized the court to assess the 

fees of a court-appointed GAL in a conservatorship proceeding 

to the petitioner.

In In re Guardianship & Conservatorship of Karin P.,

 21 a 

father filed a petition seeking appointment as guardian and 

conservator for his adult child and the mother filed an objection and cross-petition seeking to be appointed as a limited 

guardian. On appeal, we held that the county court did not 

abuse its discretion in finding that both parties were petitioners and ordered the parties to split the GAL’s fees. Here, even 

though Misty contested Gerald’s appointment as guardian 

20 § 30-2601(3).

21 In re Guardianship & Conservatorship of Karin P., supra note 1.
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and conservator, she did not seek to be appointed conservator. Also, as articulated by the county court, Gerald filed the 

petition for guardianship and conservatorship in this case. 

As such, the court correctly found that Gerald is a petitioner 

within the meaning of § 30-2643. Additionally, the court stated 

that Gerald should be responsible for the GAL’s fees rather 

than the county, because Gerald moved for the appointment of 

the GAL. Further, under Neb. Rev. Stat. § 30-2602(b) (Reissue 

2016), when both guardianship and protective proceedings as 

to the same person are commenced or pending in the same 

court, the proceedings may be consolidated. As such, Gerald’s 

petition seeking both a guardianship and conservatorship gave 

the court authority to award fees under § 30-2643. On this 

record, we find that the court’s order conforms to the law and 

is supported by competent evidence.

Gerald also argues that § 30-2643 was implicitly repealed 

and/or amended by § 30-4210. Gerald argues that § 30-2643 is 

irreconcilable with § 30-4210, which was enacted into law by 

2016 Neb. Laws, L.B. 934. The portion of § 30-2643 at issue 

was enacted into law by 1993 Neb. Laws, L.B. 782. Gerald 

argues, as the most recent enactment, § 30-4210 should prevail 

over § 30-2643.

Section 30-4210 provides:

The court may order the cost of any evaluation as provided in section 30-4203 to be paid by the county where 

the guardianship, conservatorship, or other protective proceeding is brought, or the court may, after notice and a 

hearing, assess the cost of any such evaluation, in whole 

or in part, to the person who is the subject of the guardianship, conservatorship, or other protective proceeding. 

The court shall determine the ability of such person to 

pay and the amount of the payment.

[12-15] Repeal by implication is strongly disfavored, unless 

made necessary by the evident intent of the Legislature. 22

22 Premium Farms v. County of Holt, 263 Neb. 415, 640 N.W.2d 633 (2002).
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A statute will not be considered repealed by implication unless 

the repugnancy between the new provision and the former statute is plain and unavoidable. 23 In determining whether the new 

enactment is repugnant, we look at the new enactment for any 

indication of an evident legislative intent to repeal the former 

statute. 24 In the absence of clear legislative intent, the construction of a statute will not be adopted which has the effect of 

nullifying or repealing another statute. 25

We find no indication that the Legislature intended to 

repeal or amend § 30-2643 when it adopted 2016 Neb. Laws, 

L.B. 934, and codified § 23 at § 30-4210. Further, based on 

their plain and ordinary language, we find no repugnancy 

between § 30-4210 and § 30-2643, because they apply in distinct circumstances.

Section 30-4210 authorizes a court to assess against a county 

or protected person, but not the petitioner, the costs of a courtordered evaluation conducted by a GAL under Neb. Rev. 

Stat. § 30-4203(2)(c) (Reissue 2016). Under § 30-4203(2)(c), 

evaluations are referred to as medical, psychological, geriatric, 

or any other evaluation of the person who is the subject of the 

guardianship, conservatorship, or other protective proceeding 

to determine the condition and extent of impairment, if any, of 

the person who is the subject of the guardianship, conservatorship, or other protective proceeding. Here, we have not been 

referred to any court-ordered evaluations in our record or any 

evidence that the GAL’s fees included court-ordered evaluations. The court correctly found that the GAL did not request 

payment for any court-ordered evaluations and that § 30-4210 

does not apply to the GAL’s application for fees.

[16] Even though we conclude here that the court acted 

within its authority, it also seems clear that the outcome in 

23 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).

24 Id.

25 Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d 339 

(2000).
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this case could lead to situations in which a person in need 

of protection is left without someone to initiate a proceeding 

on his or her behalf. 26 Although this case concerned a conservatorship for J.F., the vast majority of the dispute concerned 

Gerald’s petition for guardianship of J.F. Had Gerald not also 

sought to be appointed conservator, he would not have been 

required to pay the GAL’s $10,665.57 in fees. This is so, even 

though the dispute was civil in nature. However, Gerald did 

not contest the amount of the GAL’s fees or whether the GAL’s 

fees were reasonable. An appellate court will not consider an 

issue on appeal that was not presented to or passed upon by 

the trial court. 27

[17] Additionally, Gerald has not reasserted, on appeal, his 

objection from his motion to set aside that he was not provided 

notice of the GAL’s application for fees and costs or the hearing on the application. In order to be considered by an appellate court, an alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting 

the error. 28

CONCLUSION

In a guardianship proceeding for a minor, no statute or recognized uniform course of procedure permits a court to assess the 

fees of an appointed person against a ward’s estate, a county, 

or a petitioner. In a conservatorship proceeding for a protected 

person, the court is statutorily authorized to assess the fees of 

an appointed person to the estate of the protected person if the 

protected person possesses an estate or, if not, the county in 

which the proceedings are brought or the petitioner.

Affirmed.

26 In re Guardianship of Brydon P., supra note 12, citing In re Guardianship 

& Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001).

27 State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).

28 In re Guardianship & Conservatorship of Forster, 22 Neb. App. 478, 856 

N.W.2d 134 (2014).