White v. White
296 Neb. 772
| Neb. | 2017Background
- Elizabeth White and James White divorced; the district court had appointed James McGough as attorney for the couple’s minor children and later ordered the spouses to pay his fees.
- White did not pay; after bankruptcy discharged her debts, McGough sought to have Douglas County pay the fees under Neb. Rev. Stat. § 42-358(1), and the district court ordered the county to pay, finding White indigent.
- Douglas County appealed; the Nebraska Supreme Court reversed, holding the district court had abused its discretion in finding White indigent and vacated the order requiring county payment (White v. White).
- After mandate, McGough sought reimbursement from Douglas County for fees incurred defending that appeal; the district court granted $1,719.87, relying in part on Neb. Ct. R. App. P. § 2-109(F).
- Douglas County appealed the postmandate order, arguing (1) McGough failed to timely apply under § 2-109(F), (2) no statutory authority permits county payment of appointed counsel’s appellate fees in a civil dissolution where no responsible party is indigent, and (3) the award violated 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 fees incurred defending Douglas County’s appeal | McGough: fees for appellate work were proper reimbursement to appointed counsel and encompassed by court authority/§2-109(F) | Douglas County: no statutory authority to compel county to pay appointed counsel in civil dissolution when no responsible party is indigent; county power is limited | Reversed: no statutory basis to require county payment when no responsible party is indigent; district court erred |
| Applicability of Neb. Ct. R. App. P. § 2-109(F) (court-appointed attorney may apply to appointing court for appellate fees) | McGough: §2-109(F) permits appointing court to award fees for appellate services | Douglas County: §2-109(F) addresses criminal court-appointed counsel and requires timely application to appellate clerk; not applicable to this civil context | Court treated §2-109(F) as inapposite and relied on statutory limits under §42-358(1); did not permit county reimbursement here |
| Whether § 42-358(1) authorizes county payment of appointed counsel’s appellate costs when responsible party is not indigent | McGough: district court can order county to pay appointed counsel’s costs, including appellate work | Douglas County: §42-358(1) permits county payment only if the responsible party is indigent; here no party was indigent | Held: §42-358(1) allows county payment only when a responsible party is indigent; no indigence found, so county cannot be ordered to pay |
| Whether judicially-created power (inherent authority) could require county to pay in absence of statute | McGough: inherent powers or equitable considerations support award | Douglas County: county, as political subdivision, may only expend funds as authorized by Legislature; courts should not create such authority | Held: special deference to legislative determination; only limited inherent authority exists (e.g., Kovarik for criminal indigent defense), not applicable here; any change must come from Legislature |
Key Cases Cited
- White v. White, 293 Neb. 439 (reversal of district court indigence finding and prior appellate decision affecting fee liability)
- Kovarik v. County of Banner, 192 Neb. 816 (judiciary’s narrow inherent authority to require county reimbursement in fundamental criminal indigent-defense contexts)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (Legislature, not courts, should create rules for county expenditures to reimburse nonindigent defense costs)
- Brackhan v. Brackhan, 3 Neb. App. 143 (standing and appeal procedure when county is ordered to pay appointed counsel)
- Mathews v. Mathews, 267 Neb. 604 (standard that statutory interpretation is a question of law for appellate review)