White v. White, 296 Neb. 772

Background

Elizabeth White sued for dissolution; the district court appointed James McGough as attorney for the minor children and later ordered the parties to pay his fees; McGough sought payment after White failed to pay.
White filed bankruptcy and her debts (including to McGough) were discharged; McGough then moved the district court to find White indigent and order Douglas County to pay his fees under Neb. Rev. Stat. § 42-358(1).
The district court found White indigent and ordered Douglas County to pay McGough; Douglas County appealed and this court reversed, concluding White was not indigent.
After the mandate issued, McGough sought $1,719.87 from Douglas County for fees incurred defending Douglas County’s appeal in White v. White; the district court awarded those appellate fees to McGough, relying on Neb. Ct. R. App. P. § 2-109(F).
Douglas County appealed the award, arguing (1) McGough failed to seek Supreme Court-appointed-appellate fees under the rule, (2) there is no statutory basis to require county payment where no party is indigent, and (3) the award violated the law of the case.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court could order Douglas County to reimburse McGough for appellate fees incurred defending Douglas County’s appeal	McGough (plaintiff/appellee below) argued his appellate work was compensable and the appointing court could order payment, invoking the court rule	Douglas County argued no statute authorizes county payment when no responsible party is indigent; county lacks power absent legislative grant	Reversed: court held no statutory basis to require county to pay appellate fees where no responsible party is indigent; award vacated
Whether § 42-358(1) authorizes county payment of appointed counsel’s appellate fees when responsible party is not indigent	McGough implicitly treated § 42-358(1) as covering fees related to representation, including appellate work	Douglas County: § 42-358(1) permits county payment only if responsible party is indigent; here no one was indigent	Held: § 42-358(1) permits county payment only when a responsible party is indigent; it does not authorize public-fund payment here
Whether Neb. Ct. R. App. P. § 2-109(F) authorized the district court to award appellate fees against the county	McGough relied on § 2-109(F) language permitting court-appointed appellate attorneys to apply to the appointing court for appellate fees	Douglas County: § 2-109(F) governs criminal court-appointed appellate counsel and does not create authority to charge county in civil dissolution matter	Held: Rule § 2-109(F) (criminal context) does not supply statutory authority to order county to pay in this civil dissolution case
Whether the county could be ordered to pay under the court’s inherent power (Kovarik exception)	McGough argued judicial authority could require county payment for appointed counsel’s fees in interest of justice	Douglas County: Kovarik exception limited to fundamental criminal matters (indigent defense implicated by possible imprisonment) and inapplicable to civil dissolution	Held: Kovarik inapplicable; inherent judicial power does not authorize county payment here because civil appointed counsel services are not equivalently fundamental

Key Cases Cited

Mathews v. Mathews, 267 Neb. 604 (statutory interpretation standard) (review of questions of law is de novo)
Wetovick v. County of Nance, 279 Neb. 773 (county powers strictly construed) (county only has powers delegated by Legislature)
State v. Joubert, 246 Neb. 287 (courts’ inherent fee awards) (attorney fees may be awarded for bad-faith litigation conduct)
State Farm Mut. Auto Ins. Co. v. Royal Ins. Co., 222 Neb. 13 (attorney-fee principles) (inherent power to award fees in exceptional cases)
Garza v. Garza, 288 Neb. 213 (uniform procedure for awarding fees in dissolution cases) (Nebraska recognizes consistent practice for awarding attorney fees in domestic relations)
Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (public-fund expenditures) (rules about county payment for defense costs should be set by Legislature)
Kovarik v. County of Banner, 192 Neb. 816 (exception for criminal indigent defense) (judiciary could order county to pay fees for fundamental criminal indigent-rights matters)
Brackhan v. Brackhan, 3 Neb. App. 143 (standing to appeal) (county ordered to pay appointed-attorney fees has standing to appeal)
Mitchell v. French, 267 Neb. 656 (application of § 42-358) (statute interpreted to permit county payment only when responsible party is indigent)
White v. White, 293 Neb. 439 (this court’s prior decision) (reversing district court’s indigency finding and its order requiring county payment)