In re Guardianship & Conservatorship of McDowell

had been arrested for an offense when the chemical test was
administered. As such, Pickinpaugh’s assignment of error has
no merit, and the district court’s ruling affirming the county
court’s order was proper.
ConClusion
Finding no merit to Pickinpaugh’s assignments of error, we
affirm the findings of the district court.
A ffirmed.
in re G uArdiAnship And C onservAtorship of isAAC mCdowell
And mAriAnnA mCdowell , minor Children.
CArolyn mCdowell rosenquist, AppellAnt, v.
rAul A mbriz-pAdillA et Al ., Appellees.
762 n.W.2d 615
Filed January 20, 2009. 	no. A-08-517.
1. Guardians and Conservators: Appeal and Error. A proceeding for the appoint-
ment of a guardian in a matter arising under the nebraska Probate Code is
reviewed for error on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing 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. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the case and controversy before it.
4. Wills: Guardians and Conservators. irrespective of the circumstances of the
parents’ deaths, under nebraska law, the determination of who shall be guardian
and conservator is ultimately dependent upon the best interests of the children,
although a testamentary nomination of a guardian or conservator may have statu-
tory priority.
5. ____: ____. The testamentary appointment of a guardian will be upheld unless
the best interests of the child require otherwise.
Appeal from the County Court for Dawson County: CArlton
e. C lArk, Judge. Affirmed.
John B. McDermott and Mark Porto, of shamberg, Wolf,
McDermott & Depue, for appellant.
340 	17 neBrAskA APPellATe rePorTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

D. Brandon Brinegar and kent A. schroeder, of ross,
schroeder & George, l.l.C., 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 mur-
der 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 par-
ents, 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 guard-
ian and conservator, and raul, Maria, and Jorge sought perma-
nent 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 per-
fected 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
[1,2] 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).
in re GuArDiAnshiP & ConserVATorshiP oF MCDoWell 	341
Cite as 17 neb. App. 340

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 con-
tested 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 appoint-
ment 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 appoint-
ment 	was 	not 	prevented 	nor 	nullified 	under 	section
30-2607 as there were no children over the age of four-
teen 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 stat-
ute allows for minor children, age 14 and older, to 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 pri-
ority of a testamentary appointment:
The court may appoint a guardian for a minor if all paren-
tal 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
342 	17 neBrAskA APPellATe rePorTs

guardian has failed to accept the testamentary appoint-
ment 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] chil-
dren 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.
[3] The trial court’s conclusion in its paragraph 8 that the
specific nomination of a guardian in Chris’ last will and testa-
ment 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 sur-
viving spouse, heir or devisee who feloniously and intention-
ally 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
in re GuArDiAnshiP & ConserVATorshiP oF MCDoWell 	343
Cite as 17 neb. App. 340

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 circum-
stance not involved here, from sharing in the estate. But, we
need not decide whether the homicide statute voids a killer’s
nomination of a guardian for his children, because this case is
resolved on other grounds. see Kelly v. Kelly, 246 neb. 55, 516
n.W.2d 612 (1994) (appellate court is not obligated to engage
in analysis which is not needed to adjudicate case and contro-
versy before it).
[4] We hold that, irrespective of the circumstances of the
parents’ deaths, under nebraska law, the determination of who
shall be guardian and conservator is ultimately dependent upon
the best interests of the children, although a testamentary nomi-
nation of a guardian or conservator may have statutory prior-
ity. see In re Estate of Jeffrey B., 268 neb. 761, 688 n.W.2d
135 (2004).
[5] In re Estate of Jeffrey B., supra, involved a situation
in which the parents of the children were both deceased.
The father was the last to die, by a heroin overdose. his will
appointed George and Catherine shaner as testamentary guard-
ians and James and Teresa riggins as successor guardians. The
rigginses filed a motion to be appointed as guardians and to
remove the shaners, who had previously been appointed. The
county court granted the motion, and upon the shaners’ appeal,
the nebraska supreme Court said that the question presented
was what presumption, if any, must be overcome to remove
a minor’s testamentary guardian. The rather complicated fac-
tual background in In re Estate of Jeffrey B. is fully set forth
in the supreme Court’s opinion, and its recitation here is not
necessary. That said, the shaners argued that their testamen-
tary appointment was controlling, citing Clymer v. La Velle,
194 neb. 91, 230 n.W.2d 213 (1975), wherein the supreme
Court stated that the testamentary appointment of the minor’s
guardian “‘cannot be ignored.’” 268 neb. at 771, 688 n.W.2d
at 144. The court in In re Estate of Jeffrey B. first pointed out
that La Velle was decided before the adoption of the current
nebraska Probate Code. The court further said:
344 	17 neBrAskA APPellATe rePorTs

second, the shaners fail to note our conclusion in La Velle
that “[i]t is generally held that [a testamentary appoint-
ment of a guardian] will be upheld unless the best inter-
ests of the child require otherwise.” (emphasis supplied.)
194 neb. at 93, 230 n.W.2d at 216. As explained above,
this standard is consistent with that imposed by current
nebraska law.
In re Estate of Jeffrey B., 268 neb. at 772, 688 n.W.2d at 144.
The court’s ultimate conclusion in In re Estate of Jeffrey B.
was that where a parent’s constitutionally protected relationship
with a child is not at issue, both public policy and nebraska law
require that the guardianship at issue be determined by a refer-
ence to the paramount concern in child custody disputes—the
best interests of the child. in summary, there can be no doubt
that the nebraska supreme Court has made the best interests
of the children the determining factor, irrespective of the tes-
tamentary appointment of a guardian. Despite the superfluous
language in paragraph 8, it is clear from a complete reading of
the county court’s order that the rationale for its appointment
of raul and Maria was premised upon the best interests of the
children. Therefore, we review that determination for error on
the record, which takes us to the facts revealed about raul and
Maria and Carolyn and the respective environments they offer
isaac and Marianna.
Carolyn is 52 years of age and in good health. she moved
from Grand island, nebraska, to the Phoenix area approxi-
mately 3 years ago, where she worked at a title company until
her layoff shortly before the hearing. her current husband,
unrelated to isaac or Marianna except by marriage, is 58
years old and works as a handyman part of the year, and part
of the year in organizing a golf tournament in the Phoenix
area. Carolyn had two sons—Chris, the children’s father who
committed suicide after murdering the children’s mother, and
another son, age 22, who by Carolyn’s admission has “men-
tal health issues.” Carolyn has returned to nebraska three or
four times to see the children in the 3 years since her move
to Phoenix. Carolyn and her husband live in a two-bedroom
apartment, which she describes as adequate and appropriate
for the children to live with her. isaac would attend a school
in re GuArDiAnshiP & ConserVATorshiP oF MCDoWell 	345
Cite as 17 neb. App. 340

located 2 miles from the apartment, and Carolyn plans to place
Marianna in preschool. Carolyn and her husband have siblings
in the Phoenix and Tucson, Arizona, areas.
on 	the 	day 	of 	the 	murder-suicide, 	Jorge 	immediately
arranged for the children to be seen by stacey hunt-Amos, a
licensed mental health practitioner and certified marriage and
family therapist. hunt-Amos saw the children the day after
the deaths, the day after the funerals, and weekly thereafter up
to the time of trial. her opinion was that the children should
stay in their present placement with raul and Maria because
they need continued stability. she also opined that they are
presently doing well and have made improvement since the
trauma of the deaths of their parents. hunt-Amos limited her
opinion to the “short term,” defined as a year, due to her lack
of contact with and knowledge about their paternal grand-
mother, Carolyn.
Jorge, erika’s brother, testified that he is employed by a
manufacturing plant in omaha, nebraska, in the human rela-
tions department, that he has a dual degree from the university
of nebraska at kearney, and that he is one class short of his
master’s degree. Jorge testified that his father, raul, began
coming to the united states from Mexico in 1984 and that the
family moved to the united states in 1987. raul and Maria
have been married 40 years and produced four daughters and
three sons, including Jorge. Jorge indicated that his oldest sis-
ter lives in lexington, nebraska. she has three children rang-
ing from 5 to 10 years of age, all of whom are bilingual, as
are isaac and Marianna. Another sister who lives in lexington
owns the house where raul and Maria reside with her—and
where isaac and Marianna resided at the time of the hearing.
Jorge’s oldest brother also lives in lexington. he is married
and has two children, ages 3 and 9, who are also bilingual.
one of Jorge’s sisters lives in California, and his younger
brother, Michael Ambriz, attends the university of nebraska
at kearney. Michael lives in a residence hall in kearney dur-
ing the school year, is a senior by credit, and plays on the
tennis team. After erika’s death, the family asked him to stay
home during the spring semester of 2008, which he did. Jorge
indicated that his parents do not speak english, but that they
346 	17 neBrAskA APPellATe rePorTs

were extremely diligent in making sure that all of their chil-
dren did their homework and participated in sports and school
activities. Jorge testified that he and two of his sisters gradu-
ated from college. And Michael has nearly graduated with a
degree in criminal justice. Given that isaac and Marianna are
bilingual, communication is not a concern. Jorge described his
family as extremely close-knit, loving, and supportive. Maria
is a stay-at-home mother, and raul works for Wal-Mart. Maria
is in her late 50’s, and raul is 61. Jorge testified that both of
his parents are in excellent health, other than Maria’s hav-
ing diabetes.
As far as the living arrangements at the time of the hear-
ing, isaac still did not want to sleep alone, so Michael was
sleeping with him in bunk beds, and Marianna did not want to
sleep away from Maria. raul testified that he and Maria were
willing to be guardians. raul has permanent resident status and
has taken the citizenship test, but did not pass it, and plans on
taking it again. Maria is a u.s. citizen. raul has saturdays and
Tuesdays off, but wants to change his days off to saturdays and
sundays to be home with the children more. on the days that
raul does not pick up isaac from school, Michael picks him
up. raul said that he has talked with the principal at isaac’s
school and talks with isaac’s teacher every day. raul said that
he gives isaac a dollar for every “100” he gets on his school
papers and that the last time isaac brought home papers, raul
had to pay him $7. raul testified that Jorge and Michael were
involved in school and sports and that Michael was a state
champion in tennis. raul said that he intends to introduce isaac
to the same activities and in fact is already doing so. raul testi-
fied to the frequent contact isaac and Marianna have with their
cousins residing in lexington.
reviewing the trial court’s determination of the appoint-
ment of raul and Maria as guardians and Jorge as conserva-
tor, in light of the children’s best interests, we cannot ignore
the structure, support, love, and nurture provided by raul
and Maria and their family—aunts, uncles, and cousins. This
familial relationship obviously provides a great deal of support
for two children who have been traumatized by the sudden
deaths of their parents. it is abundantly clear to us, as it was
in re GuArDiAnshiP & ConserVATorshiP oF MCDoWell 	347
Cite as 17 neb. App. 340

to the county court, that the children’s best interests were best
served by the appointment of raul and Maria as their guard-
ians. raul and Maria, as well as their extended family, are in
many ways an exemplary model for these children who have
been tragically deprived of their own parents. it is apparent
that they will have a loving and supportive environment in
lexington and will unquestionably be well cared for. That said,
our conclusion does not denigrate in any way the love and con-
cern Carolyn has for her grandchildren. Finally, Jorge is quite
clearly a mature, responsible, and thoughtful young adult who
is an appropriate conservator for the children.
ConClusion
The decision of the county court for Dawson County is
based on the best interests of the children, it conforms to the
law, it is supported by competent evidence, and it is neither
arbitrary, capricious, nor unreasonable.
A ffirmed.
348 	17 neBrAskA APPellATe rePorTs