White v. White
296 Neb. 772
| Neb. | 2017Background
- Elizabeth White divorced James White; the district court appointed James McGough as attorney for their minor children and later discharged him.
- The district court earlier ordered White and her husband to each pay McGough fees; White did not pay and later filed bankruptcy, which discharged the debt.
- McGough sought payment from Douglas County under Neb. Rev. Stat. § 42-358(1), arguing White was indigent; the district court found White indigent and ordered the county to pay.
- Douglas County appealed; the Nebraska Supreme Court reversed, holding White was not indigent and the county should not pay under § 42-358(1).
- After the mandate, McGough sought $1,719.87 from Douglas County for fees incurred defending the county’s appeal; the district court ordered the county to pay under a court-rule provision relating to court-appointed criminal appeals.
- Douglas County appealed the order requiring it to reimburse McGough for appellate work in the civil dissolution matter.
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: fees for appellate services are recoverable; district court may award under court rule interpretation and appointment authority | Douglas County: no statute authorizes county to pay such fees where no responsible party is indigent; county lacks power to expend public funds absent legislative authorization | Court reversed: no statutory basis to require county to pay appellate fees where no responsible party is indigent; such expenditures must be authorized by Legislature |
| Whether § 42-358(1) authorizes county payment of appointed counsel’s fees when responsible party is not indigent | McGough: § 42-358(1) could encompass appellate costs and allow county payment | Douglas County: § 42-358(1) applies only when a responsible party is indigent; otherwise no public-fund payment | Court: § 42-358(1) permits county payment only when responsible party is indigent; here no indigency, so county cannot be ordered to pay |
| Whether the court’s inherent authority (or Kovarik) allows ordering county to pay in civil appointment context | McGough: judiciary may order county to pay where necessary to vindicate counsel appointment | Douglas County: Kovarik limited to criminal indigency/fundamental rights; not applicable to civil dissolution appointments | Court: Kovarik inapplicable; civil appointments do not present same fundamental public-justice imperative; Legislature must authorize payment |
| Whether McGough’s failure to seek fees via timely appellate rule motion barred recovery | Douglas County: McGough did not timely apply under Neb. Ct. R. App. P. § 2-109(F) and cannot recover | McGough: his appellate participation justified post-mandate application to appointing court | Court: declined to reach remaining arguments after ruling lack of statutory authority (county cannot be ordered to pay) |
Key Cases Cited
- White v. White, 293 Neb. 439 (reversal of district court finding of indigency) (court held responsible party was not indigent, so county payment under § 42-358(1) improper)
- Brackhan v. Brackhan, 3 Neb. App. 143 (Neb. Ct. App. 1994) (county has standing to appeal orders requiring it to pay appointed-attorney fees)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (2003) (courts should not create rules authorizing county expenditures of public funds; Legislature should decide)
- Kovarik v. County of Banner, 192 Neb. 816 (1975) (judicially-ordered county payment of fees permissible in criminal cases implicating fundamental indigent defense rights)
- Wetovick v. County of Nance, 279 Neb. 773 (2010) (parties may recover attorney fees only when statute or established procedural course permits)