Elizabeth A. White, appellee,
James F. White and James McGough, appellees, and Douglas County, Nebraska, intervenor-appellant.
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.
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.
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
Judgments: Political Subdivisions. Special
considerations apply to court-ordered expenditures of public
Political Subdivisions: Counties: Legislature. A
county is a political subdivision of the state and has only
that power delegated to it by the Legislature.
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.
Public Purpose: Legislature: Words and Phrases. What
constitutes a public purpose, as opposed to a private
purpose, is primarily for the Legislature to determine.
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.
from the District Court for Douglas County: W. Mark Ashford,
Judge. Reversed and remanded with directions.
W. Kleine, Douglas County Attorney, Meghan M. Bothe, and
Kristin M. Lynch for intervenor-appellant.
McGough, of McGough Law, PC, L.L.O., guardian ad litem.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
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.
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.
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).
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
County, as intervenor and appellant, appealed to this court
the district court's order that it pay McGough's
fees.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.
Neb. 775] We held that the district court had abused its
discretion in finding White indigent. Accordingly, we
reversed the court's order ...