IN RE ESTATE OF JEFFREY B.

This case involves the guardianship of V.B. and S.B., whose
parents died in separate drug-related incidents. In his will, Jeffrey
B. (Jeff), the father, appointed George H. Shaner and Catherine
Shaner as testamentary guardians, and after Jeff's death, the
Shaners accepted that appointment. James Riggins and Teresa
Riggins, the children's successor guardians under Jeff's will, filed
a motion to remove the Shaners and have themselves appointed as
guardians, and the county court granted those requests. The question
presented in this appeal is what presumption, if any, must be
overcome to remove a minor's testamentary guardian.

FACTUAL BACKGROUND

At the time of the hearing, V.B. was 9 years old and S.B. was
7 years old. George was employed as a computer programmer at
the time of the hearing. Catherine was a financial manager at the
University of Nebraska. James was the day custodian in charge of
Lincoln High School. Teresa was a staff assistant in the football
program at the University of Nebraska. Jamie B., V.B. and S.B.'s
mother, had died on December 26, 1999, of an asthma attack that
was apparently induced by drug use. James was Jamie's father,
and Teresa was Jamie's stepmother.

CIRCUMSTANCES OF JEFF'S DEATH

Jeff died in a Lincoln, Nebraska, motel room on February 26,
2001, sometime between 1 and 6:10 a.m. Jeff's cause of death was
determined to be acute drug overdose by heroin. Richard Doetker,
a criminal investigator for the Lincoln Police Department, testified
regarding his investigation into Jeff's death. Doetker testified that
in his opinion, based on his training and experience, Jeff's body
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had either been cleaned off or moved from where he had died.
Doetker found it suspicious that although Jeff died of a drug overdose,
no drugs or drug paraphernalia were found in the room.
George went to Jeff's motel at approximately 8 a.m. on
February 26, 2001. Doetker testified that George had shown up
at the motel after calling the front desk "a couple times" and that
George had claimed to be Jeff's brother. When asked how and
when he found out about Jeff's death, George refused to answer
on the ground that he might incriminate himself.

George refused, also on Fifth Amendment grounds, to testify
whether he had made any telephone calls from Jeff's motel on the
date of Jeff's death. George similarly refused to answer questions
about a series of telephone calls placed to his telephone during the
early morning hours of February 26, 2001, by Jennifer Mertlik,
Jeff's fiance, who is now known as Jennifer Martin (Martin).
Doetker testified that telephone records showed a series of calls
from Martin's cellular telephone to George's telephone. George
refused to answer questions about meeting with Martin, about discussing
with her a story to tell the police, or about whether he
went to the motel room to clean up a possible crime scene.
George was arrested, but not charged, for witness tampering
with respect to Martin. When asked whether he had cooperated
fully with the Lincoln Police Department's investigation of Jeff's
death, George again invoked his Fifth Amendment rights. Doetker
stated that George was facing "possible charges in this investigation,"
but could not discuss the matter further because it was a
continuing investigation.

George had driven to the motel on February 26, 2001, in Jeff's
vehicle, which George drove from Jeff's house after going there
to get the keys. George refused to say why he went to the house
to get the vehicle, who was at the house at the time, what time he
arrived there, how he got there, who called him, or where he had
been previously. George invoked his Fifth Amendment rights
when asked whether he was aware of a drug transaction in Jeff's
motel room on February 26. George admitted that he had used
marijuana with Jeff about 2 years before Jeff's death. However,
George testified that he had not used illegal drugs since then;
George stated that he had been regularly tested for illegal drugs
prior to the hearing and that the test results were negative.

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Catherine also refused, on the ground of spousal privilege, to
answer questions about how she had learned of Jeff's death. She
similarly refused to say whether she had spoken with anyone at
Jeff's motel. She refused to say whether she had known Jeff to
use illegal drugs. Catherine also initially invoked spousal privilege
when asked about where George had been on the night of
Jeff's death or whether George had received any telephone calls
on the night of Jeff's death. However, Catherine later testified
that she had not gone to the motel room, that George had left
their residence at around 2 a.m. on February 26, 2001, and had
returned about 6:30 a.m., and that George had received a telephone
call before leaving. However, Catherine still refused, on
the ground of spousal privilege, to confirm that the telephone call
had been from Martin. Catherine also refused to state whether
she had heard George tell Martin to lie about the circumstances
of Jeff's death.

Martin refused, on Fifth Amendment grounds, to explain how
she learned of Jeff's death or if she had spoken with George in
the early morning on February 26, 2001, to discuss Jeff's death.
Martin also refused to state whether she had either met with
George that morning before going to Jeff's motel or discussed
with George what they would tell the police. Martin refused to
state whether George told her to lie to police. Martin was charged
with providing false information to a police officer, but the
charge was dismissed following a diversion program.

SHANERS' GUARDIANSHIP

Jeff's will appointed the Shaners as the guardians of V.B. and
S.B., and the Rigginses as successor guardians. On March 8,
2001, the Shaners accepted the testamentary appointment as
guardians for V.B. and S.B., and their acceptance was filed with
the county court on March 30.

For the first 6 months of the guardianship, V.B. and S.B.
stayed with Martin in the house where they had lived with Martin
and Jeff. After about 6 months, the children began staying more
with the Shaners, but still spent three to four nights a week with
Martin. George testified that the Shaners paid Martin $1,000 per
month to "babysit"; the money came from V.B.'s and S.B.'s
Social Security benefits. However, Martin testified that she was

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paid $500 per month. The Shaners also allowed Martin to live
rent free with her own children in Jeff's former house, which had
been inherited by V.B. and S.B. The Shaners paid Martin's utilities,
bought food for the residence, and also helped Martin pay
attorney fees. Martin testified that she was provided with the use
of a vehicle by the Shaners and that George paid the insurance
and fuel expenses for the vehicle.

George had been the personal representative of Jeff's estate,
but on May 13, 2002, George resigned as personal representative
and First Nebraska Trust Company (First Nebraska) was
appointed as successor personal representative. A trust officer for
First Nebraska confirmed that Jeff's residence, which belonged to
the children as an asset of Jeff's estate, had been lived in rent free
and that estate assets were being used to pay the utilities for that
residence. The trust officer was also asked about the property that
she was managing for the children. She was reluctant to talk about
the family trust because of privacy concerns, but the trust officer
stated that most of the assets - approximately $243,000 - were
still in the estate.

Catherine testified that she and George owned a Quonset hut
in Lincoln and that they had owned it since " '95, '96." The hut
had an upstairs and downstairs. The upstairs had been "off limits
to children" from the time it was built until about a year before
the hearing. Catherine testified that V.B. and S.B. had visited the
Quonset hut with Jeff and that the Shaners, Martin, and a "[f]ew
other friends" were often present. Catherine testified that the
upstairs was an "adult room," where they "did cigarette smoking
and play[ed] Dominoes and had a few beers." Martin also testified
that the upstairs was an "adult room," but she refused to
explain why, on the ground that it might incriminate her. Martin
invoked her Fifth Amendment rights when asked whether George
brought drugs to the Quonset, whether George used drugs there,
or whether V.B. and S.B. had been present at the Quonset when
drugs were used.

RIGGINSES' GUARDIANSHIP

On May 1, 2002, the Rigginses filed an application in the
county court for an order appointing them as temporary coguardians
and coconservators of V.B. and S.B. The parties then

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stipulated, on June 18, that the Rigginses should be appointed
"successor temporary co-guardians and co-conservators" of the
children until trial could be had on their motion to remove
the Shaners as guardians. The stipulation provided the Shaners
with "parenting time" on every other weekend, every Wednesday,
and alternate Mondays. The county court entered an order
to that effect.

A school social worker for Lincoln Public Schools worked
with V.B. and S.B. starting in September 2002. The social worker
testified generally that V.B. and S.B. were doing well since they
had been living with the Rigginses and had made positive gains
since moving. The social worker testified that she would be concerned
if the children returned to the Shaners, because "on a couple
of different occasions," the children had "mentioned that
they're afraid of the Shaners." The social worker did not have any
concerns about the Rigginses.

V.B. testified over objection. V.B. stated that she did not like
going to visit the Shaners because she did not "think they [were]
good people." However, V.B.'s testimony indicated that her opinion
was based, at least in part, on things that the Rigginses had
told her about the Shaners. James admitted that he had negative
opinions about the Shaners and that when the children asked for
his opinions, he answered those questions truthfully.

Dr. Lisa Blankenau, a licensed psychologist, also testified over
objection. The Shaners objected on the basis that Blankenau had
been disclosed as a witness only 2 days before she was called to
testify. Specifically, they objected that

[w]e have not had any opportunity to obtain a rebuttal
expert witness. What I would ask is either that this witness
be stricken or that in that alternative if the Court is going to
allow this witness to testify that when the Shaner's [sic]
case is presented that we may have the opportunity to withhold
our rest to obtain a rebuttal witness.

The Shaners also filed a motion in limine, stating that they
"need[ed] adequate time to obtain rebuttal expert." The court
ruled that it would hear the testimony but that the Shaners could
withhold their rest "for a reasonable period of time to offer any
evidence you wish in - in response thereto." However, the
Shaners rested without presenting a witness to rebut Blankenau's

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testimony, despite being reminded by the court at the time that
they had been granted leave to withhold their rest.
Blankenau testified about her evaluation of V.B. and S.B.
Blankenau testified that V.B. had consistently stated that she did
not want to go with the Shaners, because she was afraid of them,
they were unpredictable, she was confused by them, and they
intimidated her and S.B. Blankenau opined that continued visitation
with the Shaners was not in V.B.'s or S.B.'s best interests.
Blankenau also testified that she did not believe that V.B. and
S.B. were being manipulated or coached, because V.B. always
provided examples of things that happened when she was with
the Shaners that made her feel the way that she did. Blankenau
did not make any recommendation regarding the fitness of the
Shaners to be guardians.

The Rigginses testified generally regarding their activities
with the children, their relationship with the children, and the
children's relationship with their half brother, who is also in the
Rigginses' care. Similarly, the Shaners testified about their activities
with the children and presented testimony from other witnesses
regarding the Shaners' relationship with the children and
their fitness to be parents.

COUNTY COURT FINDINGS

At the conclusion of trial, on October 23, 2003, the county
court temporarily ordered a halt to the Shaners' visitation, pending
a permanent resolution of the case. No objection to that order
appears in the record.

On November 24, 2003, the county court entered an order
appointing the Rigginses as coguardians of V.B. and S.B. The
court stated that "the ultimate standard for the appointment of a
guardian is what is in the best interests of the minor children."

The court found that "[i]t is without question to this Court that it
is in the best interests of [V.B. and S.B.] that James Riggins and
Teresa Riggins be appointed their guardians. The evidence is
overwhelming . . . ." The court specifically noted the testimony
of Blankenau and the school social worker that the children were
doing well in the Rigginses' care. The court also stated that
[t]he refusal by George . . . to answer any questions with
respect to his knowledge of the events leading up to and

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subsequent to the death of [Jeff] is very troubling to this
Court. Where a defendant in a civil case refuses to testify
on the grounds that the evidence may incriminate him a
Court may draw an adverse inference from his refusal to do
so. . . . The questions raised regarding [Jeff's] death, the
evidence presented regarding that death, and [George's]
refusal to testify regarding that leave this Court no choice
but to reach very disturbing conclusions therewith[.]
(Citation omitted.) The court stated similar concerns regarding
Catherine's refusal to answer certain questions. The court found
that the children were doing well academically and socially and
had a close relationship with the Rigginses and that removing
V.B. and S.B. from the Rigginses' care would do irreparable
harm to the children. The court found that the Shaners were unfit
to serve as guardians for the children and that it was not in the
best interests of the children for the Shaners to be granted any
parenting time with the children. The court ordered the parties to
pay their own attorney fees. The Shaners perfected this appeal.

ASSIGNMENTS OF ERROR

The Shaners assign, consolidated and restated, that the county
court erred in (1) appointing the Rigginses as guardians of the
children, without giving due weight to the nomination of the
Shaners as guardians in Jeff's will; (2) applying a "broad evidentiary
standard" to the proceedings, including allowing hearsay
evidence; (3) allowing evidence regarding the deaths of Jeff
and Jamie; (4) allowing Blankenau's testimony; (5) entering a
temporary order at the conclusion of the trial to terminate the
Shaners' visitation; (6) terminating the Shaners' visitation; (7)
failing to award attorney fees to the Shaners; and (8) overruling
the Shaners' motion for directed verdict.

STANDARD OF REVIEW

[1,2] Appeals of matters arising under the Nebraska Probate
Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 1995
& Cum. Supp. 2002), are reviewed for error on the record. In re
Guardianship of D.J., ante p. 239, 682 N.W.2d 238 (2004). When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported

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by competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.

[3,4] In proceedings where the Nebraska rules of evidence
apply, the admission of evidence is controlled by rule and not by
judicial discretion, except where judicial discretion is a factor
involved in assessing admissibility. Woollen v. State, 256 Neb.
865, 593 N.W.2d 729 (1999). Because the exercise of judicial
discretion is implicit in determinations of relevancy and admissibility
under Neb. Rev. Stat. § 27-401 (Reissue 1995), the trial
court's decision will not be reversed absent an abuse of discretion.
V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001).

ANALYSIS

STANDARD FOR REMOVING TESTAMENTARY GUARDIAN

The first issue we must address is the burden of proof applicable
to a proceeding to remove a guardian who has accepted a
testamentary appointment. The Rigginses contend, and the
county court determined, that the best interests of the children
are controlling. The Shaners argue, however, that a testamentary
guardian is entitled to a presumption of fitness and may be
removed only if clear and convincing evidence shows the guardian
to be unfit.

Our resolution of this issue is controlled by the relevant provisions
of the Nebraska Probate Code. The parent of a minor may
appoint, by will, a guardian of an unmarried minor. § 30-2606.
Section 30-2605 provides that "[a] person becomes a guardian of
a minor by acceptance of a testamentary appointment or upon
appointment by the court. The guardianship status continues
until terminated, without regard to the location from time to time
of the guardian and minor ward." Subject to the objection of a
minor over the age of 14, a testamentary appointment becomes
effective upon filing the guardian's acceptance in the court in
which the will is probated. § 30-2606. A court may appoint a
guardian for a minor if all parental rights of custody have been
terminated or suspended by circumstances or court order, but a
guardian appointed by will has priority over a guardian who may
be appointed by the court. § 30-2608(d).

The priority provision of § 30-2608(d) is intended to address
circumstances in which a court-appointed guardian comes into

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existence before a parental nomination is discovered or implemented
by acceptance, so that the authority of the court-appointed
guardian will be terminated in favor of the parental nomination.
See Unif. Probate Code § 5-204, comment, 8 U.L.A. 98 (Supp.
2004). However, while a guardian appointed by will has priority
over a guardian who may be appointed by a court, the statutes
draw no distinction between those methods of appointment once
a guardian has, in fact, been appointed. In other words, the means
by which a guardian has been appointed ceases to be relevant
once the appointment is complete.

Section 30-2616 provides in part as follows:

(a) Any person interested in the welfare of a ward, or the
ward, if fourteen or more years of age, may petition for
removal of a guardian on the ground that removal would be
in the best interest of the ward. A guardian may petition for
permission to resign. A petition for removal or for permission
to resign may, but need not, include a request for
appointment of a successor guardian.

(b) After notice and hearing on a petition for removal or
for permission to resign, the court may terminate the guardianship
and make any further order that may be appropriate.

[5] Section 30-2616 does not distinguish between guardians
appointed by will or by the court, and we find no other basis in
the statutes for such a distinction. While a guardian appointed by
will has priority in the process of appointment, once appointed, a
testamentary guardian is simply a guardian like any other, with
the same legal status as a guardian appointed by the court. See
Unif. Probate Code § 5-201, comment, 8 U.L.A. 332 (1998).
Consequently, whether appointed by will or by the court, the standard
for removal of the guardian of a minor pursuant to § 30-2616
is the same: "the best interest of the ward."

In arguing to the contrary, the Shaners cite Clymer v. La Velle,
194 Neb. 91, 230 N.W.2d 213 (1975), in which the guardianship
of an orphan, Todd Allen La Velle, was contested between Todd's
aunt and uncle and Todd's sister. Todd's father left a will that
contained a testamentary appointment of Todd's aunt and uncle
as his guardians. The Shaners rely, in this case, upon our statement
in that opinion that "[t]he testamentary appointment of
[Todd's aunt and uncle] as Todd's guardians cannot be ignored.

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Todd's father was obviously concerned for his welfare and was
in the best position to act in Todd's best interests. He knew intimately
both the [aunt and uncle] and [Todd's sister]." Id. at 93,
230 N.W.2d at 216.

The Shaners' reliance on La Velle is unavailing for two reasons.
First, our decision in La Velle was based upon law that preceded
Nebraska's adoption of the Uniform Probate Code. Thus, the instant
case is controlled by statutory provisions that were not in
effect when La Velle was litigated. Second, the Shaners fail to note
our conclusion in La Velle that "[i]t is generally held that [a testamentary
appointment of a guardian] will be upheld unless the best
interests 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.
The Shaners also argue that a testamentary guardian is entitled
to the same presumptions given a natural or adoptive parent in
proceedings for termination of parental rights, or over more distant
relatives or nonrelatives in guardianship proceedings. This
contention is meritless. We recently discussed the principle of
parental preference, in the context of a guardianship proceeding,
in In re Guardianship of D.J., ante p. 239, 682 N.W.2d 238
(2004). We stated that the principle of parental preference provides
that a court may not properly deprive a biological or adoptive
parent of the custody of a minor child unless it is affirmatively
shown that such parent is unfit to perform the duties
imposed by the relationship or has forfeited that right. Id.
However, we explained that the primary justification for the
parental preference principle is based upon constitutional considerations.
Parents and their children have a recognized unique and
legal interest in, and a constitutionally protected right to, companionship
and care as a consequence of the parent-child relationship
- a relationship that in the absence of parental unfitness
or a compelling state interest, is entitled to protection from intrusion.
Id., citing Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366
(1992). We also noted that in addition to those constitutional considerations,
in custody disputes between a parent and nonparent,
courts turn to the parental preference principle because the best
interests standard, taken to its logical conclusion, would place the

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minor children of all but the "worthiest" members of society in
jeopardy of a custody challenge. Id. We concluded that
unless it has been affirmatively shown that a biological or
adoptive parent is unfit or has forfeited his or her right to
custody, the U.S. Constitution and sound public policy protect
a parent's right to custody of his or her child. While the
best interests of the child remain the lodestar of child custody
disputes, a parent's superior right to custody must be
given its due regard, and absent its negation, a parent retains
the right to custody over his or her child.

In re Guardianship of D.J., ante at 247-48, 682 N.W.2d at 245.
[6] However, the concerns we articulated in In re Guardianship
of D.J. are limited to disputes in which a natural parent's right to
custody is directly implicated. Where a parent's constitutionally
protected relationship with a child is not at issue, both public policy
and the Nebraska statutes require the case to be determined by
reference to the "paramount concern" in child custody disputes
- the best interests of the child. See id. at 243, 682 N.W.2d
at 243.

APPOINTMENT OF RIGGINSES AS GUARDIANS

Having concluded that the county court acted correctly in
applying the standard of the best interests of the children, without
affording the Shaners a presumption based upon Jeff's testamentary
appointment, resolution of the Shaners' first and most
important assignment of error requires us to determine if the
court erred in finding that the best interests of the children were
served by appointing the Rigginses as guardians. Specifically,
we must determine if the court's decision is supported by competent
evidence.

[7] In this regard, we note, as did the county court, that where
a defendant in a civil case refuses to testify on the ground that the
evidence may incriminate him or her, the trier of fact may draw an
adverse inference from the refusal. See Wilson v. Misko, 244 Neb.
526, 508 N.W.2d 238 (1993). See, also, Baxter v. Palmigiano, 425
U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). Given the record
before us, we conclude that the county court's decision is supported
by competent evidence. The record contains substantial evidence
showing that the children are thriving in the Rigginses' care,

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and this evidence alone would suffice to support the county court's
decision. But the record also contains, as the court stated, evidence
which raises unsettling questions about the Shaners' fitness to
serve as guardians for the children, and this evidence also supports
the county court's decision.

Considering the evidence set forth above, the appropriate legal
principles, and our standard of review, we conclude that the record
contains competent evidence supporting the county court's
determination that the best interests of V.B. and S.B. were served
by appointing the Rigginses to serve as guardians for the children.

The Shaners' first assignment of error is without merit.

EVIDENTIARY ISSUES

[8,9] The Shaners' next three assignments of error concern
evidentiary rulings made by the county court. First, the Shaners
argue that the county court erred by applying a "broad evidentiary
standard" to the proceedings, including the admission of
hearsay. The Shaners claim that "[i]t is clear from reviewing the
entire record in this case that hearsay evidence abounded." Brief
for appellants at 28. However, in support of this argument, the
Shaners identify only two instances in the record that they contend
were hearsay. Consequently, we will consider the Shaners'
objections in only those two instances. In order that assignments
of error concerning the admission or rejection of evidence may
be considered, an appellate court requires that appropriate references
be made to the specific evidence against which an objection
is urged. State v. Cox, 231 Neb. 495, 437 N.W.2d 134
(1989). It is not the function of an appellate court to scour the
record looking for unidentified evidentiary errors. See State v.
Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

The first identified instance of hearsay is contained in the following
colloquy, from the direct examination of the school social
worker:

[Rigginses' counsel:] Does [V.B.] appear to you to be
happy?

[School social worker:] She appears to me to be torn.

Q Okay. And what do you mean by that?

AWell, I think given the situation and the custody issues
that are going on, I think she feels like there are a lot of

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feelings that she can't express. I think she's got a lot of
fears. I think she likes living with her grandparents. I know
she does. She tells me that so -
[Shaners' counsel]: Objection. Hearsay.

THE COURT: Well, the rules are broad in this kind of a
suit. Overruled. I'll receive the answer.

Q Does [V.B.] appear to you to be healthy?

A Healthy, yes.

[10] Plainly, the Shaners were not prejudiced by the overruling
of their objection. To constitute reversible error in a civil case, the
wrongful admission of evidence must unfairly prejudice a substantial
right of a litigant complaining about evidence admitted.
Blue Valley Co-op v. National Farmers Org., 257 Neb. 751, 600
N.W.2d 786 (1999). Here, while the Shaners' objection was overruled,
the social worker never finished the statement to which the
Shaners were objecting. Consequently, the testimony to which the
objection was directed is not in evidence, despite the unfavorable
ruling from the court.

The other instance identified by the Shaners occurred during
the direct examination of Doetker, who was discussing his investigation
into Jeff's death upon Doetker's arrival at the motel.
[Rigginses' counsel:] What did you do after arriving
there?

[Doetker:] Basically I was briefed on what occurred there.

The receptionist had told me that -

[Shaners' counsel]: Objection. Hearsay.

THE COURT: Well, I'm gonna overrule the objection.

Rules of Evidence are very broad in this kind of a case. It's
overruled. You may answer.

[Doetker:] The investigation showed that [an individual]
checked into Room Number 203 approximately 3 p.m. on
February 25th, 2001. And that a gentleman by the name of
Jeff [B.] then came to that hotel at approximately 10 p.m.
that evening.

[11] This colloquy again fails to demonstrate any prejudice to
the Shaners. The only potentially prejudicial information contained
in Doetker's statement was that Jeff arrived at the motel - a
fact which was established continuously throughout the record.
Evidence objected to which is substantially similar to evidence

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admitted without objection results in no prejudicial error. In re
Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d
439 (1999). Because neither of the hearsay objections identified
by the Shaners resulted in prejudice to them, we reject their second
assignment of error.

Next, the Shaners assign that the county court erred in admitting
evidence regarding the deaths of Jeff and Jamie, which evidence
the Shaners argue was irrelevant. However, the record contains
very little evidence regarding Jamie's death and reveals
nothing that would be prejudicial to the Shaners. The Shaners'
argument on appeal is based on the evidence of Jeff's death and
George's possible involvement in Jeff's death and its aftermath.
We simply reject the Shaners' argument that evidence of Jeff's
death was irrelevant to the issues to be decided in these proceedings.

The county court inferred "very disturbing conclusions"
from George's repeated reliance on the Fifth Amendment. Those
inferences were within the court's discretion and reflected on
George's fitness to serve as guardian. It is difficult to conclude
that evidence directly bearing on a guardian's general obedience
to the law, and specific involvement in the death of his wards'
father, is not relevant to his fitness to continue in the role of guardian.
It was certainly not an abuse of discretion for the county court
to conclude that such evidence was relevant. The Shaners' third
assignment of error is without merit.

[12] Finally, the Shaners argue that the county court erred in
allowing Blankenau to testify because she was belatedly disclosed
as a witness. Generally, the control of discovery is a matter
for judicial discretion. Gallner v. Hoffman, 264 Neb. 995, 653
N.W.2d 838 (2002). Here, the court exercised its discretion by
granting the Shaners' request to withhold their rest until they
could obtain rebuttal testimony. This was, as reflected above,
specifically requested by the Shaners in their objection and
motion in limine.

[13] A party cannot complain of error which that party has
invited the court to commit. Medlock v. Medlock, 263 Neb. 666,
642 N.W.2d 113 (2002). In this case, the Shaners asked the court
to exclude Blankenau's testimony or, in the alternative, allow
them time to obtain a rebuttal witness. The court chose the latter,
but the Shaners did not present a witness to rebut Blankenau's

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testimony. In short, the court gave the Shaners what they requested
in their objection and motion, and the Shaners cannot
complain about that ruling on appeal.

VISITATION

[14] The Shaners' fifth and sixth assignments of error are
directed at the county court's termination of the Shaners' visitation.
Their fifth assignment of error, however, is moot. A moot
case is one which seeks to determine a question which does not
rest upon existing facts or rights, in which the issues presented
are no longer alive. State on behalf of Pathammavong v.
Pathammavong, ante p. 1, 679 N.W.2d 749 (2004). The Shaners
complain that the temporary termination of their visitation at the
conclusion of trial was ordered without notice to the parties and
violated their right to due process. However, the issue of whether
the temporary order was issued in error was relevant only from
the time that it was ordered until it was replaced by the county
court's permanent order. Therefore, any issue relating to the temporary
order is moot and need not be addressed in order to
resolve this appeal. See id.

[15,16] The Shaners also argue that the court erred in permanently
terminating their visitation. However, we conclude that
the court's order is supported by competent evidence. The best
interests of the children are the primary and paramount considerations
in determining and modifying visitation rights. Fine v.
Fine, 261 Neb. 836, 626 N.W.2d 526 (2001). The Shaners are not
related to V.B. and S.B. and have no legal right to visitation. Cf.
Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999). The record
suggests that the children did not like visiting with the Shaners
and were fearful of them, and that the instability associated with
visitation was negatively affecting them. The need for a stable
home environment free of unsettling influences is one of the factors
to be considered in determining reasonable visitation rights.
Fine, supra. The record also demonstrates hostility between the
parties and disagreements over visitation prior to trial which
required the court's intervention to resolve. Given these facts, we
cannot say that the county court erred in concluding that the best
interests of the children would not be served by continuing the
Shaners' visitation schedule with the children.

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IN RE ESTATE OF JEFFREY B. 777

Cite as 268 Neb. 761

REMAINING ASSIGNMENTS OF ERROR

We have considered the Shaners' two remaining assignments of
error regarding the court's overruling of their motion for directed
verdict and the potential award of attorney fees, and find each
assignment of error to be without merit.

CONCLUSION

The county court correctly concluded that in proceedings to
remove a testamentary guardian of a minor, the appropriate standard
is the best interests of the minor. The court's finding that the
best interests of V.B. and S.B. were served by appointing the
Rigginses to serve as guardians is supported by competent evidence,
and the court did not commit reversible error in its evidentiary
rulings or in terminating the Shaners' visitation. The
county court's judgment is affirmed.