In Re Guardianship and Conservatorship of McDowell

762 N.W.2d 615, 17 Neb. Ct. App. 340
CourtNebraska Court of Appeals
DecidedJanuary 20, 2009
DocketA-08-517
StatusPublished

This text of 762 N.W.2d 615 (In Re Guardianship and Conservatorship of McDowell) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Guardianship and Conservatorship of McDowell, 762 N.W.2d 615, 17 Neb. Ct. App. 340 (Neb. Ct. App. 2009).

Opinion

762 N.W.2d 615 (2009)
17 Neb. App. 340

In re GUARDIANSHIP AND CONSERVATORSHIP OF ISAAC McDOWELL AND MARIANNA McDOWELL, minor children.
Carolyn McDowell Rosenquist, appellant,
v.
Raul Ambriz-Padilla et al., appellees.

No. A-08-517.

Court of Appeals of Nebraska.

January 20, 2009.

*616 John B. McDermott and Mark Porto, of Shamberg, Wolf, McDermott & Depue, Grand Island, for appellant.

*617 D. Brandon Brinegar and Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., Kearney, for appellees.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

SIEVERS, Judge.

On February 18, 2008, Chris McDowell murdered his wife, Erika Ambriz McDowell, and then committed suicide. As a result, their children, Isaac McDowell, born January 4, 2001, and Marianna McDowell, born June 13, 2004, were orphaned. By a last will and testament executed 4 days before the murder and suicide, Chris named his mother, Carolyn McDowell Rosenquist of Phoenix, Arizona, as guardian of his children. This will made no mention of his wife, Erika. Erika's parents, Raul Ambriz-Padilla and Maria Ambriz-Trujillo, were appointed as temporary guardians of the children, and their son and Erika's brother, Jorge Ambriz, was appointed as temporary conservator. Thereafter, Carolyn sought appointment as guardian and conservator, and Raul, Maria, and Jorge sought permanent appointment as guardians and conservator, respectively. After an evidentiary hearing on April 15, 2008, the county court for Dawson County, Nebraska, appointed Raul and Maria as guardians of Isaac and Marianna and appointed Jorge as the conservator to manage their property. Carolyn has timely perfected her appeal from the order of the county court.

ASSIGNMENT OF ERROR

Carolyn asserts that "[t]he trial court abused its discretion by failing to appoint Carolyn as guardian/conservator."

STANDARD OF REVIEW

A proceeding for the appointment of a guardian in a matter arising under the Nebraska Probate Code is reviewed for error on the record. See In re Guardianship of Lavone M., 9 Neb.App. 245, 610 N.W.2d 29 (2000). 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. In re Estate of Baer, 273 Neb. 969, 735 N.W.2d 394 (2007).

ANALYSIS

As indicated earlier, the children's father executed a will 4 days before the murder of their mother and his suicide, in which will he named his mother, Carolyn, as guardian of Isaac and Marianna. The county court for Dawson County made the following finding in its journal entry deciding this contested matter:

8. The Court finds that the provisions of the Last Will and Testament do not apply as it was prepared four days prior to death and the specific nomination should not be controlling. The Court notes specifically Nebr.Rev.Stat. § 30-2608(d), as amended, and notes that this appointment has not been nullified by § 30-2607 as to who has priority.

Carolyn argues, summarized, that the journal entry's paragraph 8 is an incorrect construction of the cited statute:

It is clear that the court misreads Neb.Rev.Stat. § 30-2608(d) as there was, indeed, a guardian appointed by a will as provided in Section 30-2606 and that appointment was not prevented nor nullified under Section 30-2607 as there were no children over the age of fourteen who objected to this appointment.

Brief for appellant at 8.

It is true that the trial court's reference to Neb.Rev.Stat. § 30-2607 (Reissue 2008) was misplaced, because such statute allows for minor children, age 14 and older, to *618 object to a testamentary appointment of a guardian made under Neb.Rev.Stat. § 30-2606 (Reissue 2008), and neither Isaac nor Marianna was yet age 14.

Neb.Rev.Stat. § 30-2608(d) (Reissue 2008) allows for priority of a testamentary appointment:

The court may appoint a guardian for a minor if all parental rights of custody have been terminated or suspended by prior or current circumstances or prior court order. A guardian appointed by will as provided in section 30-2606 whose appointment has not been prevented or nullified under section 30-2607 has priority over any guardian who may be appointed by the court but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty days after notice of the guardianship proceeding.

Carolyn reasons that she has priority over any guardian who may be appointed by the court. Carolyn also argues that because she had not failed to accept the appointment, and because § 30-2608(d) does not provide the court with any basis to make an appointment of any person other than Carolyn, the county court erred.

The trial court, after paragraph 8 quoted above, did note that Carolyn had not failed to accept the guardianship, but the trial court's order continued:

9.... Notwithstanding that, the Court finds:
A. Both grandparents [we assume the court meant Raul, Maria, and Carolyn] are qualified and the Court must look at the best interests of the minor children.
B. The Court notes that [Raul and Maria's] children received a good education and excellent schooling and there is extended family to support the two minor children.
10. It is in the best interests of both children that Raul Ambriz-Padilla and Maria Ambriz-Trujillo be appointed as guardians for Isaac McDowell and Marianna McDowell.
11. The Court further finds that it is in the best interests of the children that Jorge Ambriz be appointed conservator.

The trial court's conclusion in its paragraph 8 that the specific nomination of a guardian in Chris' last will and testament was not controlling because it was prepared 4 days prior to his death does not appear to have any legal basis, unless the court intended to base its conclusion on the homicide probate statute, Neb.Rev.Stat. § 30-2354 (Reissue 2008), although the court did not cite the statute. Under § 30-2354(a), "A surviving spouse, heir or devisee who feloniously and intentionally kills or aids and abets the killing of the decedent is not entitled to any benefits under the will or under this article ...." See In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002) (county court's removal of husband as personal representative upon finding that husband had intentionally and feloniously killed wife affirmed). The opinion in In re Estate of Krumwiede, through its quotation of the comment to § 2-803 of the Uniform Probate Code, suggests that § 30-2354 is designed to prevent the killer, who is still alive, a circumstance not involved here, from sharing in the estate.

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Related

In Re Estate of Krumwiede
647 N.W.2d 625 (Nebraska Supreme Court, 2002)
In Re Guardianship of La Velle
230 N.W.2d 213 (Nebraska Supreme Court, 1975)
Baer v. Douglas County
735 N.W.2d 394 (Nebraska Supreme Court, 2007)
In Re Guardianship of Lavone M.
610 N.W.2d 29 (Nebraska Court of Appeals, 2000)
Kelly v. Kelly
516 N.W.2d 612 (Nebraska Supreme Court, 1994)
In Re Estate of Jeffrey B.
688 N.W.2d 135 (Nebraska Supreme Court, 2004)

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Bluebook (online)
762 N.W.2d 615, 17 Neb. Ct. App. 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guardianship-and-conservatorship-of-mcdowell-nebctapp-2009.