White v. White
296 Neb. 772
Neb.2017Background
- Elizabeth White sued James White for dissolution; the district court appointed James McGough as attorney for the minor children and later ordered both spouses to pay McGough fees.
- McGough sought payment; after White filed bankruptcy and her debts were discharged, the district court found White indigent and ordered Douglas County to pay McGough under Neb. Rev. Stat. § 42-358(1).
- Douglas County appealed; this court reversed, holding the district court abused its discretion because White was not indigent.
- After mandate, McGough moved the district court to require Douglas County to reimburse him for attorney fees incurred defending Douglas County’s appeal; the court ordered Douglas County to pay $1,719.87.
- Douglas County appealed that order, arguing (1) McGough failed to timely seek appellate fees under court rule, (2) no statute authorizes county payment of such appellate fees when no party is indigent, and (3) the award conflicted with prior law-of-the-case determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could order Douglas County to reimburse appointed attorney for fees incurred defending Douglas County’s appeal | McGough: district court had authority; rule §2-109(F) permits appointing court to award appellate fees to court‑appointed attorneys | Douglas County: no statute authorizes county to pay such fees where responsible party is not indigent; county lacks power absent legislative grant | Reversed: no statutory authority to obligate county to pay; award vacated |
| Whether §42-358(1) covers appellate fees payable by county when a responsible party is not indigent | McGough: §42-358(1) allows county payment of “costs,” inclusive of appeals | Douglas County: §42-358(1) permits county payment only if responsible party is indigent | Held: §42-358(1) permits county payment only when a responsible party is indigent; here no indigency, so county cannot be charged |
| Whether inherent judicial power or Kovarik exception allows county payment for civil appointed counsel when no indigency exists | McGough: court has discretion/inherent power to protect interests of children and appointed counsel | Douglas County: Kovarik exception applies only to criminal, fundamental rights (possible imprisonment); not to civil dissolution matters | Held: Kovarik inapplicable; criminal indigency context is distinct and does not authorize county payment here |
| Whether the district court properly relied on Neb. Ct. R. App. P. §2-109(F) to award fees | McGough/district court: rule permits court-appointed attorney in criminal case to apply for appellate fees and analogous relief should govern here | Douglas County: rule applies to criminal court-appointed attorneys on criminal appeals only; not a basis to charge county in civil dissolution matter | Held: §2-109(F) applies to criminal cases and cannot be used to authorize county reimbursement in this civil dissolution context |
Key Cases Cited
- White v. White, 293 Neb. 439 (2016) (prior reversal holding White was not indigent and vacating county payment)
- Mathews v. Mathews, 267 Neb. 604 (2004) (statutory interpretation and standard for attorney fees recovery)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (2003) (courts should not create rules authorizing county expenditure of public funds; Legislature should decide)
- Kovarik v. County of Banner, 192 Neb. 816 (1975) (limited judicial authority to require county payment of defense costs in criminal cases implicating fundamental rights)
- Brackhan v. Brackhan, 3 Neb. App. 143 (1994) (county has standing to appeal orders requiring it to pay appointed-attorney fees)