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White v. White

Supreme Court of Nebraska

May 26, 2017

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

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

         2. Attorney Fees: Appeal and Error. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

         3. Courts: Attorney Fees. Courts have the inherent power to award attorney fees in certain unusual circumstances amounting to conduct during the course of litigation which is vexatious, unfounded, and dilatory, such that it amounts to bad faith.

         4. Judgments: Political Subdivisions. Special considerations apply to court-ordered expenditures of public funds.

         5. Political Subdivisions: Counties: Legislature. A county is a political subdivision of the state and has only that power delegated to it by the Legislature.

         6. Political Subdivisions: Counties. Any grant of power to a political subdivision is to be strictly construed, and any reasonable doubt of the existence of a power is to be resolved against the county.

         7. Public Purpose: Legislature: Words and Phrases. What constitutes a public purpose, as opposed to a private purpose, is primarily for the Legislature to determine.

         8. Divorce: Minors: Attorneys at Law: Parties: Public Purpose: Legislature. Through Neb. Rev. Stat. § 42-358(1) (Reissue 2016), the Legislature has determined that the work of an attorney appointed to [296 Neb. 773] represent the interests of the minor children in a dissolution action is for a public purpose only when a responsible party to the dissolution is indigent.

         Appeal from the District Court for Douglas County: W. Mark Ashford, Judge. Reversed and remanded with directions.

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

          James McGough, of McGough Law, PC, L.L.O., guardian ad litem.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          WRIGHT, J.


         Intervenor-appellant, Douglas County, Nebraska, claimed the district court lacked the power to order Douglas County to reimburse an attorney for his time defending an appeal by Douglas County. In its appeal, Douglas County successfully challenged the district court's order that required it to pay the appointed attorney's costs in the underlying divorce. In that appeal, we concluded the district court abused its discretion in ordering payment pursuant to Neb. Rev. Stat. § 42-358 (Reissue 2016), because the spouse who was responsible for the payment of the appointed attorney's fees was not indigent. Upon remand, the district court ordered Douglas County to pay attorney fees for the attorney's time in defending the above appeal by Douglas County. In awarding the attorney fees, the district court relied upon Neb. Ct. R. App. P. § 2-109(F) (rev. 2014), which provides in part: "A court-appointed attorney in a criminal case, appealed to the Supreme Court or the Court of Appeals, may, after issuance of a mandate by the appellate court, apply to the appointing court for an attorney fee [296 Neb. 774] regarding services in the appeal." (Emphasis supplied.) We reverse, and remand with directions.


         In July 2012, Elizabeth A. White (White) filed a complaint against James F. White for dissolution of marriage. The district court appointed James McGough as an attorney for the couple's minor children. In a supplemental temporary order pending trial, the court discharged McGough.

         In February 2014, the district court ordered that White and her husband each individually pay $2, 073.12 in fees to McGough. In April 2014, the court entered the decree of dissolution. Not having been paid by White, McGough filed a motion for contempt, alleging that White had not paid any of the fees she owed to him under the February order.

         White filed for bankruptcy, and McGough was notified and listed as a creditor in White's bankruptcy proceedings. McGough did not intervene in the bankruptcy proceedings. Instead, McGough filed another motion for attorney fees in the district court, this time requesting that the district court find White indigent and order Douglas County to pay the fees, pursuant to § 42-358(1).

         The court stayed the hearing on McGough's motion until the conclusion of the bankruptcy proceedings. Eventually, White's debts, including the debt to McGough, were discharged. The district court resumed proceedings on McGough's motion for attorney fees. It found that White was indigent and ordered Douglas County to pay McGough's fees, which White had been ordered to pay in the divorce action.

         Douglas County, as intervenor and appellant, appealed to this court the district court's order that it pay McGough's fees.[1]No briefs were filed in the appeal by White, her husband, or the minor children. McGough filed a brief as appellee, arguing that the district court was correct in determining White was indigent.

         [296 Neb. 775] We held that the district court had abused its discretion in finding White indigent. Accordingly, we reversed the court's order ...

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