White v. White
296 Neb. 772
| Neb. | 2017Background
- In a marital dissolution, the district court appointed attorney James McGough to represent the parties' minor children; the court later ordered each spouse to pay McGough fees, and McGough was not paid by wife Elizabeth White.
- White filed bankruptcy and her debts (including to McGough) were discharged; McGough then sought an order under Neb. Rev. Stat. § 42-358(1) finding White indigent and directing Douglas County to pay his fees.
- The district court found White indigent and ordered Douglas County to pay McGough; Douglas County appealed and this court reversed, holding White was not indigent.
- After mandate issued, McGough moved the district court for $1,719.87 in appellate fees for time defending Douglas County's appeal; the district court granted the motion and ordered Douglas County to pay those fees, citing Neb. Ct. R. App. P. § 2-109(F).
- Douglas County appealed the postmandate order, arguing (1) McGough failed to timely seek fees under the appellate rule, (2) no statute authorizes county payment of such fees when responsible parties are not 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 argued the appellate-fee award was permissible under the appointing court's authority and Neb. Ct. R. App. P. § 2-109(F) | Douglas County argued there is no statutory authority to charge public funds for appointed counsel in a civil dissolution when no responsible party is indigent; appellate-rule relief was untimely | The court held the district court lacked authority to order the county to pay; no statute permits public payment here because § 42-358(1) authorizes county payment only when a responsible party is indigent |
Key Cases Cited
- White v. White, 293 Neb. 439, 884 N.W.2d 1 (Neb. 2016) (prior appeal holding White was not indigent)
- Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (Neb. 1975) (judiciary may order county to pay fees in fundamental criminal matters where indigent defense is implicated)
- Guenzel-Handlos v. County of Lancaster, 265 Neb. 125, 655 N.W.2d 384 (Neb. 2003) (questions about county expenditures for defense should be resolved by the Legislature)
- Brackhan v. Brackhan, 3 Neb. App. 143, 524 N.W.2d 74 (Neb. App. 1994) (county has standing to appeal orders directing it to pay appointed counsel under § 42-358)
- Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (Neb. 2004) (statutory interpretation is reviewed de novo)
Conclusion: Reversed and remanded with directions to vacate the district court's order requiring Douglas County to pay McGough's appellate fees, because § 42-358(1) permits county payment only when the responsible party is indigent and no such indigency was found.