White v. White
296 Neb. 772
| Neb. | 2017Background
- Elizabeth White filed for dissolution; the district court appointed James McGough as attorney for the minor children, later discharged him from the appointment but earlier taxed fees against the spouses.
- The district court ordered both spouses to pay McGough; White did not pay and later filed for bankruptcy, which discharged her debt to McGough.
- McGough sought payment from Douglas County under Neb. Rev. Stat. § 42-358(1) after the district court found White indigent; Douglas County intervened and appealed.
- The Nebraska Supreme Court reversed, holding the district court abused its discretion because White was not indigent.
- After mandate, McGough sought $1,719.87 from Douglas County for fees defending that appeal; the district court ordered the county to pay, relying on Neb. Ct. R. App. P. § 2-109(F).
- Douglas County appealed, arguing the district court lacked statutory authority to order county payment for appellate fees where no responsible party was indigent; the Supreme Court reversed and remanded with directions to vacate the fee order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could order Douglas County to reimburse appointed counsel for appellate fees in the dissolution appeal | McGough argued the county must pay because he was court-appointed and § 2-109(F) permits post-mandate fee applications | Douglas County argued no statute authorizes county payment where no responsible party is indigent and that county power is strictly statutory | Reversed: no statutory authority to use public funds for appointed counsel's appellate fees in dissolution cases when no responsible party is indigent; district court erred |
| Whether § 42-358(1) permits county payment of appointed counsel’s fees generally (including appeals) | McGough contended costs include appellate work and thus county could be ordered to pay | County said § 42-358(1) authorizes county payment only when a responsible party is indigent; otherwise no public-pay authority exists | Held that § 42-358(1) permits county payment only when a responsible party is indigent; here no indigency, so payment improper |
| Whether the court’s inherent authority permits county payment sans statute | McGough implied court could order payment under inherent powers or court rule | Douglas County argued judicial inherent power is limited and special public-fund rules require legislative authorization | Court declined to extend inherent-authority exception (Kovarik limited to criminal/indigent-rights contexts); legislative action required for civil dissolution payments absent indigency |
Key Cases Cited
- Mathews v. Mathews, 267 Neb. 604 (statutory interpretation is a question of law)
- Wetovick v. County of Nance, 279 Neb. 773 (attorney fees recoverable only when statute permits or uniform procedure exists)
- Garza v. Garza, 288 Neb. 213 (uniform procedure exists for awarding attorney fees in dissolution cases)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125 (county power to expend public funds is strictly construed; such rules should be set by Legislature)
- Kovarik v. County of Banner, 192 Neb. 816 (judicial inherent authority to order county payment limited to fundamental indigent-rights criminal matters)
- Brackhan v. Brackhan, 3 Neb. App. 143 (party aggrieved by order to pay appointed-counsel fees may appeal)
- White v. White, 293 Neb. 439 (prior reversal holding White was not indigent)