856 N.W.2d 134
Neb. Ct. App.2014Background
- Mark D. Forster (son) filed for guardianship/conservatorship of his father James on Aug 10, 2011 and was appointed temporary guardian for up to 90 days; the court later removed him as temporary guardian.
- Three successive temporary guardians were appointed; the third successor (Milone) served as temporary guardian/conservator but never produced the court‑ordered 30‑day written report and no permanent evidentiary hearing on incapacity was held.
- Temporary guardianship continued beyond the statutory 90‑day period without findings of good cause or a competency determination; James died Aug 26, 2012 while the temporary guardianship remained in place.
- After James’ death Milone filed a final inventory/accounting and fee requests; the county court approved the final inventory/accounting and awarded various attorney fees.
- Mark appealed, challenging (inter alia) failure to hold an evidentiary hearing, failure to require bond after statutory amendment, an ex parte access order, several fee awards, discovery rulings, and the court’s treatment of Mark’s objections to the accounting.
Issues
| Issue | Plaintiff's Argument (Mark) | Defendant's Argument (Milone / County Court) | Held |
|---|---|---|---|
| 1) Failure to hold an evidentiary hearing on guardianship/conservatorship | Court should have held an evidentiary hearing promptly; continued temporary guardianship beyond 90 days was impermissible | Temporary guardianship can be extended for good cause; procedural posture made hearing unnecessary | Court erred in failing to hold a timely evidentiary hearing and in permitting extension without findings, but the issue is moot by decedent’s death; public‑interest exception applied to say error occurred |
| 2) Failure to require bond after statute amended Jan 1, 2012 | Court should have required bond or held hearing after § 30‑2640 amendment | Appointments occurred before amendment; statute not retroactive; no motion to require bond was filed | No error: amendment was not retroactive and Mark did not seek bond under existing procedure |
| 3) Ex parte order restricting/allowing access to James | Ex parte order lacked evidentiary basis and expedited hearing | Access order was only relevant while James lived; moot after death | Moot; court declined to reach merits because issue ended with James’ death |
| 4) Awards of attorney fees (multiple awards) | Several fee awards were improper or unsupported | Some fee awards were final and thus appealable; others were interim but were heard with parties present and without objection | Awards to Hytrek, Reisinger, and Stoehr were final and not reviewable here; two Milone awards (Mar 6 and Apr 23, 2012) were not supported by competent evidence and were vacated and remanded for an evidentiary hearing |
| 5) Motion to compel discovery and motion to continue | Motion to compel "memo to file" documents was necessary for preparation | Motion to compel was untimely (filed the day of hearing); ample time existed earlier | No abuse of discretion in denying the motion as untimely; Mark waived timely pursuit |
| 6) Alleged failure to rule on objections to final accounting | Court did not rule on multiple specific objections to inventory/accounting | Court implicitly considered and overruled objections by approving the accounting; Mark declined to present further evidence | No reversible error: approval of accounting implicitly overruled objections; evidence in record supports court’s decision |
Key Cases Cited
- In re Guardianship & Conservatorship of Larson, 270 Neb. 837 (Neb. 2006) (temporary guardianships are limited in duration; timely evidentiary hearing required)
- In re Trust of Rosenberg, 269 Neb. 310 (Neb. 2005) (fee awards must be supported by competent evidence; vacatur/remand where no evidentiary support)
- In re Trust Created by Crawford, 20 Neb. App. 502 (Neb. Ct. App. 2013) (vacating fee awards not supported by evidence)
- In re Estate of Gsantner, 288 Neb. 222 (Neb. 2014) (orders awarding representative/attorney fees may affect substantial rights and be final)
- In re Estate of Muncillo, 280 Neb. 669 (Neb. 2010) (probate proceedings are special proceedings for appealability purposes)