927 N.W.2d 787
Neb.2019Background
- In 2007 Pamela Grimes was appointed guardian-conservator for Alice H.; in 2012 the court removed Grimes and appointed attorney Jodie Haferbier McGill as successor guardian-conservator.
- McGill filed a 2016 surcharge application alleging Grimes misappropriated ward funds; at hearing McGill submitted affidavits claiming substantial attorney/guardian hours and sought fees.
- The county court’s March 9, 2016 order found misappropriation, surcharged Grimes, and ordered Grimes to pay McGill $37,505.70 in attorney fees (no appeal from that order).
- In 2018 McGill sought additional guardian/conservator fees and asked the court to order Douglas County to pay the unpaid balance of prior attorney fees (and for Grimes to remain liable). The ward had by then died and a small bank account balance was noted.
- The county court issued orders in June and July 2018 directing Douglas County to pay portions of McGill’s fees (reducing McGill’s hourly rate); Douglas County moved to alter or amend and appealed the July 27, 2018 order.
- The Nebraska Supreme Court affirmed the orders in part but reversed the portion ordering Douglas County to pay fees because the record lacked evidence that the ward did not possess an estate (the statutes allow county payment only when the ward lacks an estate).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the county court improperly vacated/modified its March 2016 order | McGill sought county contribution for unpaid balance but asked Grimes to remain liable | Douglas County argued the 2018 order effectively vacated/modified the 2016 surcharge without authority | Court: July 27 order did not vacate/modify the 2016 order; two parties can share responsibility and record shows McGill wanted Grimes still liable |
| Whether Douglas County may be ordered to pay successor guardian-conservator’s attorney fees | McGill sought county payment under guardianship/conservatorship fee statutes (or otherwise) | Douglas County argued it would violate public policy to have county pay fees attributable to Grimes’ misconduct and disputed statutory authority | Court: County may be ordered to pay only if the ward does not possess an estate; here record lacked evidence/ findings the ward lacked an estate, so order directing county to pay was not supported and reversed |
| Whether the fees ordered against Grimes in 2016 were attributable to prosecuting Grimes’ misconduct (affecting public-policy argument) | McGill’s filings showed most fees related to regular guardian/conservator duties, not surcharge prosecution | Douglas County assumed the full 2016 fee judgment was for prosecuting Grimes’ misappropriation and thus public policy forbids county indemnifying that conduct | Court: Record shows only ~$2,300 was for surcharge prosecution; remainder arose from regular guardianship duties, so public-policy argument failed on that basis |
Key Cases Cited
- In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314 (2015) (discusses county court finality and related procedural matters)
- In re Interest of Luz P., 295 Neb. 814 (2017) (addresses county court modification authority under statutory framework)
- Cano v. Walker, 297 Neb. 580 (2019) (general discussion of joint liability and related civil principles)
- Hausman v. Cowen, 257 Neb. 852 (1999) (argument is not evidence; evidentiary standards for courts)