State v. Moran

677 N.W.2d 190, 12 Neb. Ct. App. 466, 2004 Neb. App. LEXIS 70
CourtNebraska Court of Appeals
DecidedMarch 30, 2004
DocketNo. A-03-615
StatusPublished
Cited by29 cases

This text of 677 N.W.2d 190 (State v. Moran) 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
State v. Moran, 677 N.W.2d 190, 12 Neb. Ct. App. 466, 2004 Neb. App. LEXIS 70 (Neb. Ct. App. 2004).

Opinion

Cassel, Judge.

INTRODUCTION

Mary M. Moran, an attorney appointed as guardian ad litem for the minor children in these proceedings, appeals from the juvenile court’s order entitled “Nunc Pro Tunc and Notice” which modified its initial order approving Moran’s fees. We conclude that the order did not constitute an order nunc pro tunc and that the juvenile court did not have authority to modify its prior order within term. We therefore vacate the “nunc pro tunc” portion of the order and remand the cause with directions to reinstate the initial order approving Moran’s fees.

BACKGROUND

On March 17 and May 16, 2000, the juvenile court appointed Moran as guardian ad litem for the minor children in this matter. Moran thereafter undertook those duties and subsequently requested fees for her services. Although it is not directly relevant to this appeal, we note that Moran previously appealed the [468]*468juvenile court’s partial disallowance of fees concerning services for March 2002. See In re Interest of Antone C. et al., 12 Neb. App. 152, 669 N.W.2d 69 (2003).

On April 17, 2003, the court conducted a hearing on Moran’s application for fees. The court received exhibit 47, which included Moran’s fee statements for September 2002 through March 2003. Exhibit 47 showed fees and costs of $2,084.05 for February and $2,846.97 for March. The court also received exhibits 48 and 49, which were Moran’s fee statements for July and August 2002. Two deputy county attorneys appeared and indicated their full agreement with and approval of the fees and costs in these three exhibits as amended by the parties and the court. The court inquired whether the parties and counsel had so agreed just for the December and January fees in exhibit 47, and counsel responded, “They’ve reviewed all of [the exhibit 47 fees]” and “[The exhibit 47 fees] are for the months of September through March of [2003].” On April 18, 2003, the court entered an order approving payment of Moran’s fees as amended and set forth in exhibits 47 through 49.

On April 28, 2003, the court entered the order entitled “Nunc Pro Tunc and Notice.” The court stated:

This Court, having fully reviewed Exhibit No. 47 subsequent to its admission into evidence at the April 17, 2003 hearing, became aware for the first time that new monthly billings for the months of February and March, 2003 were submitted as part of Exhibit No. 47, and that these billings have not been cleared through the Office of the Juvenile Court Administrator prior to being approved for payment in the Court’s Order of April 17, 2003. The Court has serious concerns that these billings are excessive and contain unnecessary work on the part of the Guardian ad Litem. The Court now therefore amends its Order of April 17, 2003, Nunc Pro Tunc in the following particulars:
That the Court approves payment of attorney fees under Exhibit Nos. 48 and 49 only, AND IT IS SO ORDERED.
IT IS FURTHER ORDERED that this matter shall be set for a continued hearing on the request for payment of fees of the Guardian ad Litem for the children contained in Exhibit No. 47 ... .

[469]*469The court also restricted Moran from performing additional work on the case absent express approval from the juvenile court and appointed a “Co-Guardian ad Litem.”

On May 8, 2003, the court conducted the further hearing contemplated by the April 28 order. Moran moved for a continuance, for the judge to recuse himself, and for the court to vacate the “nunc pro tunc” order. The court denied Moran’s motions and ordered that Moran be paid $500 for her services in February and $500 for her services in March.

ASSIGNMENTS OF ERROR

Moran assigns that the juvenile court erred (1) in modifying its April 18,2003, order by entering a “nunc pro tunc” order on April 28 and (2) in denying Moran due process in several respects.

STANDARD OF REVIEW

On appeal, the juvenile court’s decision on guardian ad litem fees is reviewed de novo on the record for an abuse of discretion. See, In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002) (juvenile cases are reviewed de novo on record); Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998) (allowance and amount of guardian ad litem fees will be set aside only where there appears to be abuse of discretion by trial court).

A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, 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. Halouska v. Halouska, supra.

ANALYSIS

Moran asserts that the juvenile court lacked authority to enter the April 28, 2003, order reducing the fees previously approved in the April 18 order. She argues that the April 28 order was not a valid nunc pro tunc order.

According to case law, a nunc pro tunc order operates to correct a clerical error or a scrivener’s error, not to change or revise a judgment or order, or to set aside a judgment actually rendered, or to render an order different from the one actually [470]*470rendered, even if such order was not the order intended. See Walsh v. City of Omaha, 11 Neb. App. 747, 660 N.W.2d 187 (2003).

The record shows that at the April 17, 2003, hearing, the juvenile court stated approval of the fees and expenses represented in exhibits 47 through 49, and that the April 18 order accurately memorialized that approval. The April 28 order shows that the juvenile court judge subsequently decided to change or revise the April 18 order. The case law rejects use of a nunc pro tunc order for that purpose.

We next consider whether legislation adopted in 2000 modifies the case law regarding the function of nunc pro tunc orders. Neb. Rev. Stat. § 25-2001(3) (Cum. Supp. 2002) provides, “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court by an order nunc pro tunc at any time on the court’s initiative .. . .”

Subsections (1), (2), and (4) of § 25-2001 expressly address a district court’s authority to modify within term, under its equity jurisdiction, and after close of term. Unlike the other subsections of § 25-2001, subsection (3) does not specifically refer to the district court. We therefore assume, without deciding, that the authority to enter nunc pro tunc orders under subsection (3) extends to the juvenile court. See In re Interest of Steven K., 11 Neb. App. 828, 661 N.W.2d 320

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In re Interest of Steven S.
299 Neb. 447 (Nebraska Supreme Court, 2018)
State v. Steven S. (In Re Steven S.)
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In Re Antone C.
677 N.W.2d 190 (Nebraska Court of Appeals, 2004)

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Bluebook (online)
677 N.W.2d 190, 12 Neb. Ct. App. 466, 2004 Neb. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moran-nebctapp-2004.