White v. White
296 Neb. 772
| Neb. | 2017Background
- In a 2012 dissolution, the district court appointed James McGough to represent the minor children; later discharged him, but previously ordered both spouses to pay his fees.
- McGough was not paid by Elizabeth White; after her bankruptcy discharge, he sought to have Douglas County pay her share under Neb. Rev. Stat. § 42-358(1) asserting she was indigent.
- The district court found White indigent and ordered Douglas County to pay McGough’s fees; Douglas County appealed to the Nebraska Supreme Court.
- The Nebraska Supreme Court reversed, holding the district court abused its discretion in finding White indigent and vacated the order requiring county payment.
- After remand, McGough sought $1,719.87 from Douglas County for fees incurred defending that appeal; the district court ordered the county to pay, relying in part on Neb. Ct. R. App. P. § 2-109(F).
- Douglas County appealed the new order; the Supreme Court reversed, holding no statute authorized county payment of appointed counsel’s appellate fees where no responsible party is indigent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could order Douglas County to reimburse McGough for fees defending Douglas County’s appeal | McGough: fees for appellate work are compensable and district court may order payment (court-appointed role continued) | Douglas County: no statutory authority permits county to pay appointed counsel in civil/dissolution appeals when responsible parties are not indigent; procedural rules not met | Reversed — district court lacked authority; no statute authorizes county payment when no responsible party is indigent |
| Whether § 42-358(1) authorizes county payment of appointed counsel’s fees absent indigency | McGough: § 42-358 permits taxation of costs and county payment | Douglas County: § 42-358 requires a finding of indigency for county payment | Held: § 42-358(1) permits county payment only when a responsible party is indigent |
| Whether court could rely on Neb. Ct. R. App. P. § 2-109(F) to award appellate fees to a court-appointed civil attorney | McGough: Rule 2-109(F) allows court-appointed attorneys to apply for appellate fees | Douglas County: rule applies to criminal court-appointed counsel and does not create statutory power for county to expend public funds in civil cases | Held: Rule inapplicable to confer authority to spend public funds in this civil dissolution matter |
| Whether courts may order public funds expended absent explicit legislative authorization | McGough: inherent judicial power or existing precedents justify reimbursement in certain circumstances | Douglas County: county is a statutory entity; any power to spend must be conferred by Legislature | Held: Special rules govern public expenditures; county powers strictly construed — courts may not create such authority; Legislature must act unless rare, fundamental criminal circumstances exist |
Key Cases Cited
- Mathews v. Mathews, 267 Neb. 604 (statutory interpretation and standard of review for questions of law)
- Wetovick v. County of Nance, 279 Neb. 773 (authority on recovery of attorney fees and limits on public expenditures)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (Legislature, not courts, should set rules for county reimbursement of defense costs)
- Kovarik v. County of Banner, 192 Neb. 816 (limited exception allowing county reimbursement for fundamental criminal indigency-related matters)
- Brackhan v. Brackhan, 3 Neb. App. 143 (standing and appeal procedures where county ordered to pay appointed counsel)
- Garza v. Garza, 288 Neb. 213 (recognition of uniform procedure for awarding attorney fees in dissolution cases)
- White v. White, 293 Neb. 439 (prior Supreme Court decision reversing county payment to McGough for lack of indigency)