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White v. White

Supreme Court of Nebraska

April 22, 2016

Elizabeth A. White, appellee,
v.
James F. White and James McGough, appellees, and Douglas County, Nebraska, intervenor-appellant.

1 Constitutional Law: Due Process: Judgments: Appeal and Error. The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court resolves the questions independently of the conclusions reached by the trial court.

3.Attorney Fees: Appeal and Error. A finding of indigency under Neb. Rev. Stat. § 42-358(1) (Reissue 2008) is a matter within the initial discretion of the trial court, and such a finding will not be set aside on appeal in the absence of an abuse of discretion by the trial court.

4 Constitutional Law: Due Process: Counties: Political Subdivisions. US Const amend XIV and Neb. Const. art. I, § 3, prohibit the State from depriving any "person" of life, liberty, or property without due process of law. A county, as a creature and political subdivision of the State, is neither a natural nor an artificial person.

5. Attorney Fees: Guardians Ad Litem. For purposes of Neb. Rev. Stat. § 42-358(1) (Reissue 2008), a person is indigent if he or she is unable to pay the guardian ad litem or attorney fees without prejudicing, in a meaningful way, his or her financial ability to provide the necessities of life, such as food, clothing, shelter, and medical care for himself or herself or his or her legal dependents.

6. Judgments: Time. When an indigence hearing takes place last in the chain of events, a district court's determination of indigence should depend upon a party's finances at the time of the indigence hearing.

Appeal from the District Court for Douglas County: W. Mark Ashford, Judge.

Donald W. Kleine, Douglas County Attorney, and Meghan M. Bothe for intervenor-appellant.

James McGough, of McGough Law, P.C., L.L.O., guardian ad litem.

Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.

Heavican, CJ.

INTRODUCTION

This case comes to us as a dispute between James McGough and Douglas County, Nebraska (the County). During the underlying suit for dissolution of marriage, Elizabeth A. White was ordered to pay McGough $2, 073.12 in guardian ad litem (GAL) fees. After White failed to comply and subsequently had her debts discharged in bankruptcy, the district court found White to be indigent and ordered the County to pay the fees. The County appeals. We reverse.

BACKGROUND

In July 2012, White filed a complaint for dissolution of marriage. The district court appointed McGough as GAL for the couple's minor children. In February 2014, on McGough's motion, the district court ordered that White and her husband each individually pay $2, 073.12 to McGough. The order did not hold White and her ex-husband jointly and severally liable for the fees. In April, McGough filed a motion for contempt, alleging that White had not paid any portion of the fees she owed to him under the February order. White's ex-husband paid his portion of the fees owed.

In April 2014, White gave notice that she had filed for bankruptcy. McGough was notified and listed as a creditor in White's bankruptcy proceedings. About 1 month after White gave notice that she had filed for bankruptcy, McGough made another motion for attorney fees in the district court, this time requesting that the district court find White indigent and order the County to pay the fees, pursuant to Neb. Rev. Stat. § 42-358(1) (Reissue 2008). Section 42-358(1) states that when a court appoints an attorney to represent the interests of minor children, "[i]f the court finds that the party responsible is indigent, the court may order the county to pay the costs."

In accordance with Rules of Dist. Ct. of Fourth Jud. Dist. 4-11 (rev. 1995) (Rule 4-11), McGough gave the County written notice and appeared at a hearing in June 2014. The County requested a stay of proceedings, ostensibly required by bankruptcy laws. At the hearing, the County also asserted that the stay was necessary because indigence could not be determined until White's debts were discharged, and also because McGough might obtain his payment through the bankruptcy proceedings.

The district court granted the stay. McGough took no action in the bankruptcy proceedings. Eventually, White's debts, including the debt to McGough, were discharged. The district court then resumed proceedings, and a hearing on the issue of White's indigence was held in September 2014, with the County present.

During the September 2014 hearing, the County argued that it did not have notice or the opportunity to oppose the reasonableness of McGough's fees when the amount was determined in February 2014. The County also disputed White's indigence. It had moved for leave to serve discovery upon parties in order to determine indigence, but the district court denied the motion. In lieu of discovery, the County made a record by calling White to testify.

The table below shows a rough estimate of White's various income and expenses in September ...


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