White v. White
296 Neb. 772
| Neb. | 2017Background
- In the dissolution action, the district court appointed James McGough as attorney for the minor children; later the court ordered the spouses to each pay McGough fees and then discharged him from appointment.
- Elizabeth White failed to pay her share; she filed bankruptcy and her debts (including to McGough) were discharged.
- McGough sought a finding that White was indigent so Douglas County would be ordered to pay his fees under Neb. Rev. Stat. § 42-358(1); 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 district court had abused its discretion.
- After mandate, McGough moved the district court to order Douglas County to reimburse him for attorney fees and costs incurred defending the county’s appeal; the district court granted that request and ordered the county to pay $1,719.87.
- Douglas County appealed the reimbursement order; the Supreme Court reversed, holding the district court lacked statutory authority to require county payment because no responsible party was indigent and the Legislature alone may authorize public expenditures of this type.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could order Douglas County to reimburse a court-appointed attorney for appellate fees incurred defending the county’s appeal | McGough argued the reimbursement was authorized as part of his court appointment and under court rule §2-109(F) allowing appointed attorneys to apply for fees after appellate mandate | Douglas County argued no statute authorizes county payment where no responsible party is indigent; counties have only delegated powers and such grants must be clear | The court held the district court lacked authority: §42-358(1) permits county payment only when a responsible party is indigent; no indigence here, so order reversed |
| Whether Neb. Ct. R. App. P. §2-109(F) authorized the district court to award these fees | McGough relied on §2-109(F) language permitting court-appointed attorneys in criminal cases to apply for appellate fees | Douglas County contended §2-109(F) applies to criminal appointments and fee applications to the appointing court after mandate, not to create a new county-payment power in civil dissolution cases | The court did not find §2-109(F) a basis to compel county payment and emphasized §42-358(1) is the controlling statute; it did not rely on the rule to uphold the order |
| Whether other doctrines (law of the case, inherent authority, or appellate timeliness) supported the fee award | McGough asserted procedural or equitable bases to recover fees for appellate work | Douglas County argued the motion was untimely under the rule, the award lacked statutory support, and law-of-the-case did not require county payment | The court declined to address the remaining arguments after resolving the statutory-authority issue; it reversed on lack of statutory authority |
Key Cases Cited
- White v. White, 293 Neb. 439 (Neb. 2016) (prior appeal reversing district court indigence finding)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (Neb. 2003) (courts should not create rules allowing county to expend public funds for appointed counsel where Legislature has not authorized)
- Kovarik v. County of Banner, 192 Neb. 816 (Neb. 1973) (judiciary’s inherent authority may require county to pay defense costs in criminal matters fundamental to right to appointed counsel)
- Mathews v. Mathews, 267 Neb. 604 (Neb. 2004) (statutory interpretation is reviewed de novo)
- Brackhan v. Brackhan, 3 Neb. App. 143 (Neb. Ct. App. 1994) (county has standing to appeal an order requiring it to pay appointed-attorney fees under §42-358)
- Wetovick v. County of Nance, 279 Neb. 773 (Neb. 2010) (parties may recover attorney fees only when a statute permits or a uniform course of procedure exists)