In re Claim of Roberts for Attorney Fees ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/09/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
In re Claim of Roberts for Attorney Fees.
Kristine Roberts, appellee, v. County of
Washington, Nebraska, appellant.
___ N.W.2d ___
Filed October 2, 2020. Nos. S-19-378, S-19-533, S-19-932.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law. An appellate court independently reviews questions of law
decided by the lower court.
2. Judgments: Statutes: Rules of the Supreme Court: Appeal and
Error. For purposes of construction, Nebraska Supreme Court rules
are treated like statutes, and therefore an appellate court independently
reviews the conclusion of a lower court.
3. Attorney Fees: Appeal and Error. When attorney fees are authorized,
the trial court exercises its discretion in setting the amount of the
fee, which ruling an appellate court will not disturb absent an abuse
of discretion.
4. Courts: Statutes: Appeal and Error. The right of appeal in Nebraska
is purely statutory, and courts have no power to allow an appeal when it
is not authorized by statute.
5. Final Orders: Appeal and Error. Neb. Rev. Stat. § 25-1902 (Supp.
2019) authorizes appeals from four types of final orders: (1) those
affecting a substantial right in an action that, in effect, determines the
action and prevents a judgment; (2) those affecting a substantial right
made during a special proceeding; (3) those affecting a substantial right
made on summary application in an action after judgment is rendered;
and (4) those denying a motion for summary judgment when such
motion is based on the assertion of sovereign immunity or the immunity
of a government official.
6. Juvenile Courts: Attorney Fees: Final Orders. Orders fixing fees
for court-appointed counsel in juvenile cases under Neb. Rev. Stat.
§ 43-273 (Reissue 2016) fall into the second category of final order
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
under Neb. Rev. Stat. § 25-1902 (Supp. 2019), because they are made in
a special proceeding and affect a substantial right.
7. Actions: Final Orders: Words and Phrases. A “special proceeding”
occurs where the law confers a right and authorizes a special application
to a court to enforce the right. A special proceeding includes every spe-
cial statutory remedy that is not in itself an action, and a proceeding may
be special, even if the proceeding is connected with a pending action.
8. Juvenile Courts: Attorney Fees: Final Orders. Fee applications under
Neb. Rev. Stat. § 43-273 (Reissue 2016) meet the definition of a spe-
cial proceeding.
9. Attorney Fees: Statutes: Final Orders: Counties. When court-
appointed counsel is authorized by statute to apply to the appointing
court to fix reasonable fees for legal services rendered, an order fixing
such fees is a final, appealable order from which either appointed coun-
sel or the county board responsible for payment may appeal.
10. Statutes: Rules of the Supreme Court: Appeal and Error. When
construing both statutes and Nebraska Supreme Court rules, an appellate
court applies familiar rules of statutory interpretation. The language is
to be given its plain and ordinary meaning, and an appellate court will
not resort to interpretation to ascertain the meaning of words which
are plain, direct, and unambiguous. It is not within the province of the
courts to read meaning into a statute that is not there or to read anything
direct and plain out of a statute.
11. Juvenile Courts: Attorney Fees: Rules of the Supreme Court. Neither
Neb. Rev. Stat. § 43-273 (Reissue 2016) nor Neb. Ct. R. § 6-1407
requires that the county must be notified when a fee application is filed
by court-appointed counsel, nor does either require that an evidentiary
hearing be routinely held on such an application.
12. Attorney Fees: Statutes: Evidence. When a statute requires the court
to fix reasonable fees for appointed counsel, the trial court has a duty to
determine whether the requested fees are in fact reasonable, even if there
is no objection to the application or no contrary evidence presented.
13. Juvenile Courts: Attorney Fees. Once a juvenile court appoints coun-
sel in a juvenile proceeding, it has a duty under Neb. Rev. Stat.
§ 43-273 (Reissue 2016) to fix reasonable fees for the necessary legal
services performed.
14. Attorney Fees. When fixing reasonable fees, a court considers several
factors: the nature of the litigation, the time and labor required, the nov-
elty and difficulty of the questions raised, the skill required to properly
conduct the case, the responsibility assumed, the care and diligence
exhibited, the result of the suit, the character and standing of the attor-
ney, and the customary charges of the bar for similar services.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
15. Attorney Fees: Counties: Appeal and Error. In the absence of an
appeal, a court’s order fixing court-appointed counsel fees is conclusive
upon both appointed counsel and the county as to the amount allowed.
16. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
17. Courts: Attorney Fees: Appeal and Error. While both trial courts and
appellate courts are regarded as experts on the value of legal services, a
trial court ordinarily has a better opportunity for practically appraising
the situation, and an appellate court will interfere only to correct a patent
injustice, where the allowance is clearly excessive, or insufficient.
18. Juvenile Courts: Attorney Fees: Appeal and Error. When a juvenile
case is appealed, Neb. Rev. Stat. § 43-273 (Reissue 2016) requires
appointed counsel to apply to the juvenile court, not the appellate court,
for payment of services performed on appeal.
Appeals from the County Court for Washington County: C.
Matthew Samuelson, Judge. Affirmed.
M. Scott Vander Schaaf, Washington County Attorney, and
Desirae M. Solomon for appellant.
Kristine Roberts, of Roberts Law Office, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In these consolidated appeals, the county attorney for
Washington County, Nebraska, challenges a series of orders
fixing fees for court-appointed counsel in a juvenile proceed-
ing. This opinion clarifies the statutory framework for appeal-
ing such orders and explains how the appeal should be styled.
It then addresses the procedural and evidentiary challenges
raised by the county, including its contentions that (1) the
county is entitled by law to notice and an evidentiary hearing
whenever a fee application is filed, (2) fee applications must
be supported by evidence of the client’s continued indigency,
(3) courts may not allow fees for defending objections to a
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
fee application, and (4) only an appellate court may award fees
for services performed on appeal.
Finding no abuse of discretion, we affirm the fee orders
entered by the juvenile court.
I. BACKGROUND
1. Procedural History of
Juvenile Proceedings
In March 2016, the State filed a petition in the county court
for Washington County alleging the minor children of Kilynn
K. were within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Supp. 2015) due to the faults and habits of Kilynn. Pursuant
to an ex parte order, the children were removed from Kilynn’s
home, which was alleged to be unsanitary and bug infested.
Early in the case, the county court, sitting as a juvenile
court, granted Kilynn’s request for court-appointed counsel and
appointed attorney Kristina Roberts. 1 Roberts has represented
Kilynn during all phases of this juvenile proceeding.
Eventually, the children were adjudicated under
§ 43-247(3)(a). The court set a permanency goal of reunifi-
cation, and Kilynn was ordered to work with family support
services, complete a psychological evaluation, attend therapy,
attend parenting classes, learn how to clean and organize the
home, and eradicate insects from the home. At regular review
hearings throughout 2017, the court found that Kilynn was
making progress and that supervised visits were going well.
However, in the spring of 2018, Kilynn started to backslide,
and in June 2018, the State moved to terminate her paren-
tal rights.
Trial on the motion to terminate was held in November
2018. The trial lasted 4 full days; more than 20 witnesses testi-
fied, and approximately 90 exhibits were offered. At the con-
clusion of trial, the juvenile court denied the State’s motion,
1
See Neb. Rev. Stat. § 43-279.01(1) (Reissue 2016) (authorizing juvenile
court to appoint counsel to represent parent in adjudication and termination
proceeding if parent unable to afford attorney).
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
finding it had not shown that Kilynn was unfit or that termi­
nating her parental rights was in the children’s best interests.
The State timely appealed that ruling, and the Nebraska Court
of Appeals affirmed. 2
2. Orders Compensating Court-Appointed Counsel
(a) Fee Applications From 2016
Through 2018
During the first few years of this juvenile proceeding,
Roberts filed an application in the county court for Washington
County every 3 to 4 months seeking payment for past legal
services at the approved hourly rate, which at the time was $75
per hour. There were no objections to any of these fee appli-
cations. The court routinely allowed Roberts’ fee applications
without a hearing, and no appeals were taken from any of the
fee orders during this time period.
(b) February 2019 Fee Application
On February 13, 2019, Roberts filed a verified fee applica-
tion seeking payment of $12,103.80 for 151 hours of services
rendered from August 30, 2018, through February 6, 2019. The
application included time billed by Roberts in preparing for and
defending the 4-day termination trial. The fee application was
supported by Roberts’ affidavit, which included a detailed bill-
ing statement. Roberts served a copy of the February 2019 fee
application, along with a notice of hearing, on the Washington
County Attorney.
Washington County filed a written objection to Roberts’ fee
application, alleging Roberts’ affidavit contained hearsay and
lacked necessary foundation. In a subsequently filed brief, the
county also challenged evidence of Kilynn’s indigency and
argued that Roberts’ fee application should be denied because
prior fee orders had sufficiently compensated Roberts for
her services.
2
In re Interest of A.M. & S.K.S., No. A-19-247, 2019 WL 5561409 (Neb.
App. Oct. 29, 2019) (selected for posting to court website).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
At the hearing, Roberts offered a copy of her affidavit and
the court received it without objection. Roberts also called a
local attorney, who testified that for the past 30 years, a portion
of his general law practice involved representing parents in
termination proceedings. He described parental rights termina-
tion cases as the “capital punishment of all family law cases.”
When privately retained, he billed his time for such work at
$200 an hour. He also accepted juvenile court appointments
despite the lower hourly rate, because he understood the court
“wants experienced trial attorneys to be available on the court
list.” The attorney testified that trial preparation time varies
from case to case, but that, generally, an attorney prepares
approximately 2 hours for each hour spent in trial. He testified
that other attorneys in the area often consult him about han-
dling parental rights termination cases and that Roberts con-
sulted him several times during the pendency of this case but
did not bill the county for any of that time. The attorney was
familiar with the history of this juvenile case and had reviewed
Roberts’ affidavit and her billing statement. When asked his
opinion on whether Roberts’ fees and expenses were fair and
reasonable, he testified that if anything, Roberts underbilled for
the time she spent defending Kilynn.
Washington County offered no evidence at the hearing. It
instead urged the court to deny Roberts’ February 2019 fee
application in its entirety, based on the arguments it raised in
its objection and brief. Summarized, it was the county’s pri-
mary position that Roberts’ past fee awards were sufficient to
compensate her for all of her legal services in the case, even if
it meant she received no payment for the time billed defending
Kilynn in the parental rights termination trial.
On March 28, 2019, the court entered an order overruling
Washington County’s objection to Roberts’ February 2019 fee
application. The court found Roberts’ requested fees were fair
and reasonable, and it allowed fees in the sum of $12,103.80.
The county timely appealed from that order, and the appeal
was docketed as case No. A-19-378.
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307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
(c) April 2019 Fee Application
Roberts filed another verified fee application on April 25,
2019, seeking payment of $2,347.50 for approximately 31
hours of legal services performed from February 11 to April
25, 2019. This application included 3 hours billed in connec-
tion with preparing for and attending the evidentiary hearing on
Washington County’s objection to the February 2019 fee appli-
cation and 1.2 hours of work in connection with the county’s
direct appeal of the decision declining to terminate Kilynn’s
parental rights. Roberts’ April 2019 fee application was sup-
ported by her own affidavit and a detailed billing invoice.
Roberts served the Washington County Attorney with a copy of
the April 2019 fee application and a notice of hearing.
The county did not file an objection to the April 2019 fee
application, but it did appear at the scheduled hearing. At the
hearing, Roberts offered a copy of her affidavit and the court
received it over the State’s objections. Washington County
offered no evidence, but made an oral objection to the fee
application, claiming the court lacked jurisdiction over the
matter, because the county had appealed some of the juvenile
court’s recent orders.
The juvenile court rejected the county’s jurisdictional argu-
ment and, speaking from the bench, found that Roberts had
been properly appointed and that “[t]here were no irregulari-
ties” in her fee request. The county took exception to the lat-
ter finding and asked to be heard, arguing that Roberts’ April
2019 fee application was irregular because some of the billed
time pertained to work performed in defending the county’s
appeals. It was the county’s position that Roberts could not
ask the juvenile court to compensate her for work performed
in the appellate court. According to the county, if Roberts
wanted to be paid for work performed on appeal, she would
need to “re-apply to the Court of Appeals to get separately
appointed for the purposes of the appeal,” and then “the Court
of Appeals takes up that application for attorney fees when that
case closes.”
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
The county also argued that Roberts’ fee request was irregu-
lar because she was seeking compensation for time spent
defending the county’s objection to her February 2019 fee
application. The county argued that such time “ha[d] nothing
to do with” representing Kilynn in the juvenile proceeding
and, thus, was not compensable under Neb. Rev. Stat. § 43-273
(Reissue 2016). When the court asked what Roberts should
have done when the county objected to her fee application,
the county conceded it was appropriate for Roberts to prepare
for and appear at the hearing on the county’s objection. But
it maintained Roberts was not entitled to be compensated for
that time.
The juvenile court ruled from the bench and allowed
Roberts’ fee request after making a minor deduction. Later that
same day, the court entered an order overruling the county’s
objection, finding that Roberts’ fees were fair and reasonable,
and allowing fees in the sum of $2,325. The county timely
appealed from that order, and the appeal was docketed as case
No. A-19-533.
(d) July 2019 Fee Application
On July 12, 2019, Roberts filed a verified application seek-
ing fees in the amount of $2,991.85 for nearly 40 hours of legal
services performed from April 26 through July 1, 2019. This
application included approximately 19 hours of time billed for
activities related to defending Kilynn in the ongoing juvenile
court proceedings, approximately 1 hour billed for defending
the county’s objection to Roberts’ April 2019 fee application,
and approximately 20 hours billed for reviewing, researching,
and drafting briefs in the various appeals taken by the county.
Roberts’ July 2019 fee application was accompanied by a
detailed billing statement, but unlike her prior two applications,
it contained no certificate of service and no notice of hearing.
Washington County contends it was never served with a copy
of this fee application.
Without setting the matter for hearing, the court entered an
order on August 26, 2019, allowing Roberts’ July 2019 fee
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
application in the amount of $ 2,991.85. Washington County
timely appealed from that order, and the appeal was docketed
as case No. A-19-932.
We moved all three appeals to our docket on our own motion
and consolidated them for purposes of this opinion.
II. ASSIGNMENTS OF ERROR
In its first appeal, Washington County assigns, restated,
that the juvenile court’s February 2019 fee order was errone-
ous, because Roberts offered no evidence that Kilynn was still
unable to afford a lawyer and because Roberts had already
been adequately compensated by prior fee orders.
In its second appeal, Washington County assigns that the
April 2019 fee order was erroneous for the same reasons raised
in the first appeal and, in addition, assigns that the allowed
fees were excessive because Roberts was compensated for time
spent defending the county’s objection to her February 2019
fee application.
In its third appeal, Washington County assigns that the July
2019 fee order was erroneous for the same reasons raised in the
first and second appeals and, in addition, assigns that the order
was erroneous because fees were allowed without providing
Washington County notice or an opportunity to be heard.
III. STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law. 3 An
appellate court independently reviews questions of law decided
by the lower court. 4
[2] For purposes of construction, Nebraska Supreme Court
rules are treated like statutes, 5 and therefore an appellate court
independently reviews the conclusion of a lower court. 6
3
State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).
4
Id.
5
Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
6
See Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d 275 (2020).
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
[3] When attorney fees are authorized, the trial court exercises
its discretion in setting the amount of the fee, which ruling an
appellate court will not disturb absent an abuse of discretion. 7
IV. ANALYSIS
When the juvenile case was filed in 2016, Kilynn advised the
court she could not afford to hire a lawyer and she requested
court-appointed counsel. 8 The court appointed Roberts, and
Washington County does not, in these appeals, challenge the
basis for that appointment. Instead, the county challenges the
court’s 2019 orders fixing Roberts’ attorney fees.
The parties’ appellate briefing demonstrates considerable
confusion regarding the proper procedure under Nebraska law
for requesting and fixing fees for court-appointed counsel in
juvenile proceedings. We therefore begin by setting out the
statutes and uniform court rules governing that procedure.
1. Statutes and Court Rules Governing
Payment of Court-Appointed Counsel
Section 43-273 provides in relevant part that counsel
appointed under the juvenile code
shall apply to the court before which the proceedings
were had for fees for services performed. The court upon
hearing the application shall fix reasonable fees. The
county board of the county wherein the proceedings were
had shall allow the account, bill, or claim presented by
any attorney . . . in the amount determined by the court.
No such account, bill, or claim shall be allowed by the
county board until the amount thereof shall have been
determined by the court.
In addition to the statutory process outlined in § 43-273,
the Supreme Court has adopted a uniform court rule which
applies in all county courts and governs the content and filing
7
See State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
8
See § 43-279.01(1).
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307 Nebraska Reports
IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
Cite as 307 Neb. 346
of fee applications in both criminal and juvenile matters. 9
That uniform court rule provides:
Before the claim of any attorney appointed by the court
is allowed in criminal and juvenile matters, such attorney
shall make a written application for fees, positively veri-
fied, stating time and expenses in the case. Counsel shall
also state in the application that counsel has not received
and has no contract for the payment of any compensation
by such defendant or anyone in the defendant’s behalf,
or, if counsel has received any fee or has a contract for
the payment of same, shall disclose the same fully so that
the proper credit may be taken on counsel’s application.
The application shall be filed with the clerk. If a hearing
is required, the time and date of hearing shall be set by
court order. 10
A different uniform court rule governs the rate of compensation
for court-appointed counsel and provides in relevant part:
(E) Compensation for Court-Appointed Attorneys.
(1) An attorney appointed by a court shall be paid at
the hourly rate established by the court.
(2) Generally, no distinction should be made between
rates for services performed in and outside of court,
and the same rate should be paid for any time the attor-
ney spends traveling in fulfilling his or her professional
obligations. 11
Similar uniform court rules apply to court-appointed counsel in
separate juvenile courts. 12
Finally, in addition to the statute and uniform court rules
just referenced, some judicial districts have adopted local
court rules, not inconsistent with statute or Supreme Court
9
Neb. Ct. R. § 6-1407.
10
Id.
11
Neb. Ct. R. § 6-1470(E) (rev. 2017).
12
See Neb. Ct. R. §§ 6-1704 (rev. 2014) and 1706(B)(3) and (E) (rev. 2017).
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
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rules, 13 establishing additional procedures for paying court-
appointed counsel in that district. 14 However, during the rel-
evant time period, the county court judges in the Sixth Judicial
District, which includes Washington County, had no local
court rule governing the procedure for paying court-appointed
counsel.
We note the appellate briefing in this case refers to a
“Washington County Attorney Fee Policy” 15 which purportedly
requires court-appointed counsel to present all fee applications
to the county attorney for “approval or objection” 16 before the
court rules on the application. But no such policy was included
in our record, and no local court rule reflecting such a policy
has been adopted by the judges of that district or approved
by the Supreme Court. We therefore do not consider, and
express no opinion regarding, any informal procedures or poli-
cies in Washington County pertaining to compensating court-
appointed counsel.
2. Right to Appeal From
Order Allowing Fees
In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
13
See, Neb. Ct. R. § 6-1448 (providing each county court by majority
of its judges may adopt local rules not inconsistent with uniform court
rules or state statute); Neb. Ct. R. § 6-1501 (providing each district court
by majority of its judges may adopt local rules concerning matters not
covered by uniform district court rules which are not inconsistent with
statute or any Supreme Court directive).
14
See, e.g., Rules of Dist. Ct. of First Jud. Dist. 1-19 (rev. 2005); Rules of
Dist. Ct. of Third Jud. Dist. 3-14 (rev. 2013); Rules of Dist. Ct. of Fifth
Jud. Dist. 5-17 (rev. 2016); Rules of Dist. Ct. of Sixth Jud. Dist. 6-8 (rev.
2010); Rules of Dist. Ct. of 10th Jud. Dist. 10-23 (rev. 2010); Rules of
Dist. Ct. of 11th Jud. Dist. 11-6 (rev. 2002). See, also, Rules of Sep. Juv.
Ct. of Douglas Cty. 11.4 and 11.6 (rev. 2014); Rules of Sep. Juv. Ct. of
Lancaster Cty. VI(G) (rev. 2018).
15
Brief for appellee in case No. S-19-932 at 9.
16
Id.
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
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appellate court to determine whether it has jurisdiction over
the matter before it. 17 Washington County filed a timely notice
of appeal within 30 days after the entry of each of the fee
orders it seeks to challenge, but the threshold jurisdictional
question is whether those orders are appealable.
The right to appeal from orders in juvenile court is governed
by Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016). That stat-
ute permits authorized parties to appeal from “[a]ny final order
or judgment” entered by a juvenile court. 18 The instant appeals
were filed by the county attorney, who is among those autho-
rized by § 43-2,106.01 to take an appeal. Setting aside for now
the question of whether the county attorney has styled these
appeals to correctly reflect the proper parties, the pertinent
jurisdictional question is one we have not yet addressed: Is an
order ruling on a fee application of court-appointed counsel
in a juvenile matter a final, appealable order? Our opinions
addressing appeals of fee awards in other appointed-counsel
contexts provide some guidance. 19
In the 1987 case of In re Claim of Rehm and Faesser
(Rehm), 20 court-appointed counsel in a criminal case appealed
from a fee order, claiming the fees were inadequate to com-
pensate counsel for the work performed. We recognized that
some of our earlier cases had been inconsistent regarding both
the right to appeal, and the procedure for appealing, from fee
awards to appointed counsel in criminal cases. Rehm expressly
disapproved of our prior cases on the issue and announced the
following rule regarding the appealability of fee orders and the
manner in which such appeals should be styled:
17
In re Interest of Paxton H., 300 Neb. 446, 915 N.W.2d 45 (2018).
18
§ 43-2,106.01(1). See § 43-2,106.01(2)(a) through (d).
19
See, e.g., White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017); Rice,
supra note 7; White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016); In re
Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92 (1987).
20
Rehm, supra note 19.
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
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We hold, therefore, that either appointed counsel or the
county involved may appeal to this court from an order
determining the amount of fees and expenses allowed
appointed counsel under § 29-1804.12. Such an appeal is
a proceeding separate from the criminal case. It should
be docketed separately and disposed of without regard
to the result of any appeal in the criminal case itself. In
the absence of an appeal, the order of the district court is
conclusive upon both appointed counsel and the county as
to the amount allowed. 21
Rehm acknowledged that the county was not a party to
the criminal case “in the usual sense,” 22 because the county
attorney was prosecuting the matter on behalf of the State, not
the county. But Rehm reasoned that because any order award-
ing fees to court-appointed counsel would be presented to the
county for payment, the county attorney could be expected to
“make whatever showing is necessary” 23 to ensure a proper
decision regarding fees. And Rehm expressly found that “both
appointed counsel and the county must be afforded a right of
[appellate review] in the event either is dissatisfied with the
order of the district court.” 24
We have applied the reasoning from Rehm to appeals from
fee awards to appointed counsel in both postconviction pro-
ceedings 25 and domestic relations proceedings. 26 We see no
principled reason to depart from the Rehm reasoning in appeals
from fee awards to appointed counsel in juvenile proceedings.
We do, however, take this opportunity to explain the statutory
basis for our conclusion in Rehm that such orders are final
and appealable.
21
Id. at 113-14, 410 N.W.2d at 96.
22
Id. at 113, 410 N.W.2d at 96.
23
Id.
24
Id.
25
Rice, supra note 7.
26
White, supra note 19 (2017); White, supra note 19 (2016).
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IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES
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(a) Order Fixing Fees Under
§ 43-273 Is Final Order
[4-6] The right of appeal in Nebraska is purely statutory,
and courts have no power to allow an appeal when it is not
authorized by statute. 27 Neb. Rev. Stat. § 25-1902 (Supp. 2019)
authorizes appeals from four types of final orders: (1) those
affecting a substantial right in an action that, in effect, deter-
mines the action and prevents a judgment; (2) those affecting
a substantial right made during a special proceeding; (3) those
affecting a substantial right made on summary application in
an action after judgment is rendered; and (4) those denying
a motion for summary judgment when such motion is based
on the assertion of sovereign immunity or the immunity of a
government official. 28 As we explain below, orders fixing fees
for court-appointed counsel in juvenile cases under § 43-273
fall into the second category of final order under § 25-1902,
because they are made in a special proceeding and affect a
substantial right.
[7] A “special proceeding” occurs where the law confers a
right and authorizes a special application to a court to enforce
the right. 29 A special proceeding includes every special statu-
tory remedy that is not in itself an action, 30 and “a proceeding
may be special, even if the proceeding is connected with a
pending action.” 31 Section 43-273 authorizes appointed coun-
sel to apply to the appointing court for payment of earned
fees, and once the appointing court fixes a reasonable fee,
the county board is required to allow the claim in the amount
determined by the court.
[8] Fee applications under § 43-273 meet the definition of a
special proceeding. The law authorizes the fee application so
27
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
28
See State v. Kelley, 305 Neb. 409, 940 N.W.2d 568 (2020).
29
See State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
30
In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).
31
Jacques, supra note 29, 253 Neb. at 253, 570 N.W.2d at 336.
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that appointed counsel can enforce the right to be compensated
for services rendered, and the application is not itself an action
or a step in an action. Moreover, while we did not expressly
use final order terminology in Rehm, our analysis recognized
that orders determining court-appointed attorney fees affect a
substantial right of both the lawyer seeking payment of earned
fees and the county responsible for paying those fees. 32 And
while an order fixing fees does not result in a judgment, it “is
conclusive upon both appointed counsel and the county as to
the amount allowed.” 33
[9] We therefore hold that when court-appointed counsel
is authorized by statute to apply to the appointing court to
fix reasonable fees for legal services rendered, an order fix-
ing such fees is a final, appealable order from which either
appointed counsel or the county board responsible for payment
may appeal.
(b) Proper Parties in Appeal From
Final Order Fixing Fees
The county attorney has styled these appeals as though the
State of Nebraska is the appellant and Kilynn is the appellee.
This is not accurate, because neither the State nor Kilynn was
involved in the special proceeding to fix court-appointed coun-
sel’s fees. Rather, these consolidated appeals were brought by
the county attorney for Washington County on behalf of the
county board to challenge the fee orders. And it is Roberts,
not Kilynn, who was allowed the fees and is defending the fee
orders on appeal.
We therefore modify the caption of these consolidated
appeals to reflect that Washington County is the appellant
and that Roberts is the appellee. Consistent with the man-
ner in which Rehm was styled, the proper caption for these
appeals is as follows: In re Claim of Roberts for Attorney
32
See Rehm, supra note 19.
33
Id. at 114, 410 N.W.2d at 96.
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Fees. Kristine Roberts, Appellee, v. County of Washington,
Nebraska, Appellant.
3. Arguments on Appeal
Regarding the merits of these consolidated appeals,
Washington County’s assignments of error fall generally into
one of three categories: (1) claims that the juvenile court
erred in the procedure followed when fixing fees, (2) claims
that the evidence was insufficient to support the fee orders,
and (3) claims that the amount of fees allowed was excessive.
We address these assignments collectively where appropriate,
and we begin with the county’s procedural claim that it was
entitled to notice and an evidentiary hearing on the July 2019
fee application.
(a) Notice and Hearing
In its third appeal, Washington County argues the August
2019 fee order should be vacated because it was entered
without providing notice to the county that the July 2019 fee
application had been filed and without holding an evidentiary
hearing on the application. The county generally frames this as
a constitutional due process violation, arguing, “The juvenile
court in this case violated the due process of the county by
ordering fees without [a] hearing, notice or evidence.” 34
We dispense quickly with the county’s constitutional due
process argument, because the law is well settled that the
county has no such constitutional right. 35 We instead focus
34
Supplemental brief for appellant in case No. S-19-932 at 4.
35
See, White, supra note 19 (2016) (holding county has no constitutional
right to due process); Schropp Indus. v. Washington Cty. Atty.’s Ofc.,
281 Neb. 152, 164, 794 N.W.2d 685, 696 (2011) (holding “Washington
County has no constitutional right to due process that the court could have
violated”); City of Lincoln v. Central Platte NRD, 263 Neb. 141, 146,
638 N.W.2d 839, 844 (2002) (refusing to consider county’s constitutional
due process arguments, because “[a] county, as a creature and political
subdivision of the State, is neither a natural nor an artificial person”).
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our analysis on whether § 43-273, or any of the applicable
court rules, entitles the county to notice that a fee application
has been filed, or requires that an evidentiary hearing be held
before the court fixes reasonable fees.
[10] When construing both statutes and Supreme Court
rules, we apply familiar rules of statutory interpretation. 36 The
language is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain the
meaning of words which are plain, direct, and unambiguous. 37
It is not within the province of the courts to read meaning into
a statute that is not there or to read anything direct and plain
out of a statute. 38
Washington County directs us to nothing in the plain lan-
guage of either § 43-273 or the applicable court rules that
requires notifying the county or holding an evidentiary hear-
ing when a fee application is filed by court-appointed counsel.
Instead, Washington County argues we should construe the
following statutory language to require evidentiary hearings on
all fee applications: “The court upon hearing the application
shall fix reasonable fees.” 39 The county suggests this language
“indicates that there should be a hearing conducted” 40 on every
fee application. We disagree.
Section 43-273 requires the court to fix reasonable fees
“upon hearing the application,” but we understand that phrase
to refer broadly to the court’s consideration of the fee applica-
tion, not as a mandate to hold an evidentiary hearing before
fixing fees. When the Legislature wants to mandate an evi-
dentiary hearing before allowing a ruling, it knows how to
36
See Hotz, supra note 5 (explaining for purposes of construction, Supreme
Court rules treated like statutes).
37
See State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).
38
Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019).
39
§ 43-273.
40
Brief for appellant in case No. S-19-932 at 10.
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do so. 41 Rather than mandating a hearing, § 43-273 describes
an informal fee application process which is administrative
rather than adversarial. The court rule regarding application for
fees accommodates that informal statutory procedure, while
also recognizing that judges have discretion to set a hearing
on a fee application if they determine one is required. 42 The
court rule also adds several administrative requirements to the
statutory fee application process, including that the application
must be written, must be positively verified by counsel, must
include specific information, and must be filed with the clerk. 43
These requirements ensure both that a written record exists
of any fee application that is allowed and that the court has
positively verified information upon which to rely when fix-
ing reasonable fees. In other words, the court rule is designed
to reduce the need for courts to set an evidentiary hearing on
fee applications, not to mandate hearings in every case, as the
county contends.
[11] We hold as a matter of law that neither § 43-273 nor
court rule § 6-1407 requires that the county must be notified
when a fee application is filed by court-appointed counsel, nor
does either require that an evidentiary hearing be routinely
held on such an application. And while it is true that several
courts have adopted local rules requiring fee applications to
be styled as motions and served on the county attorney, 44 the
county court for Washington County had no local court rule
41
See, e.g., Neb. Rev. Stat. § 29-3702 (Reissue 2016); Neb. Rev. Stat.
§ 29-3703 (Reissue 2016); Neb. Rev. Stat. § 43-104.05 (Reissue 2016);
Neb. Rev. Stat. § 43-246.02 (Cum. Supp. 2018).
42
See § 6-1407 (“[i]f a hearing is required, the time and date of hearing shall
be set by court order”).
43
See id.
44
See, e.g., Rules of Dist. Ct. of First Jud. Dist. 1-19; Rules of Dist. Ct. of
Third Jud. Dist. 3-14; Rules of Dist. Ct. of Fifth Jud. Dist. 5-17; Rules
of Dist. Ct. of Sixth Jud. Dist. 6-8; Rules of Dist. Ct. of 10th Jud. Dist.
10-23.
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requiring either notice to the county or an evidentiary hearing
when appointed counsel files a fee application. We therefore
find no merit to the county’s claim that the juvenile court erred
in allowing the July 2019 fee application without first provid-
ing the county with notice and a hearing.
We are aware the local practice in some jurisdictions has
long been to provide the county with notice when fee applica-
tions are filed and to set such matters for hearing. Our opinion
today does not condemn such practices, whether formalized
through the adoption of local court rules or not. Indeed,
appointed counsel in this case provided notice to the county
of her February 2019 and April 2019 fee applications, and
counsel set both for hearing. But the question before us is not
whether it is the common practice, or even the best practice,
to provide notice to the county and set fee applications for
hearing. Rather, the question presented is whether notice and a
hearing are required by the applicable statutes and court rules.
They are not, and the county’s arguments to the contrary are
without merit.
(b) Sufficiency of Evidence
In all three appeals, Washington County assigns the juvenile
court erred in allowing fees without first receiving evidence
that Kilynn remained unable to afford an attorney at the time of
the fee application. In making this argument, the county does
not challenge the initial appointment of counsel for Kilynn,
nor does it contend that after counsel was appointed, Kilynn
became able to afford counsel. Instead, it is the county’s posi-
tion that each time Roberts applied for fees under § 43-273,
she had the burden to prove that Kilynn was still unable to
afford to hire private counsel. The county is incorrect.
The evidentiary requirements governing Roberts’ fee appli-
cation are set out in court rule § 6-1407. That rule requires
that before appointed counsel’s fees are allowed in a criminal
or juvenile matter, counsel must file a written fee application
with the clerk which is positively verified and which states
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counsel’s time and expenses in the case. 45 It also requires the
application must either state that counsel “has not received
and has no contract for the payment of any compensation by
[the client] or anyone in [the client’s] behalf” or disclose “if
counsel has received any fee or has a contract for the payment
of same . . . so that the proper credit may be taken on coun-
sel’s application.” 46
Because Washington County does not assign or argue that
any of Roberts’ fee applications failed to meet the evidentiary
requirements of court rule § 6-1407, we express no opinion in
that regard. We do, however, reject as unfounded the county’s
contention that before fees can be allowed under § 43-273,
appointed counsel is required to affirmatively prove that his or
her client remains unable to afford an attorney.
(c) Reasonableness of Allowed Fees
[12] When attorney fees are authorized by statute, the court
exercises its discretion in setting the amount of the fee, which
ruling an appellate court will not disturb absent an abuse
of discretion. 47 We have recognized that when a trial court
appoints counsel in either a criminal or a postconviction action,
Nebraska statutes require the court to fix reasonable fees and
expenses. 48 As such, we have found it amounts to an abuse
45
§ 6-1407.
46
Id.
47
See Rice, supra note 7.
48
See, e.g., Rice, supra note 7 (holding that once counsel is appointed in
postconviction case, Neb. Rev. Stat. § 29-3004 (Reissue 2016) requires
court to fix reasonable fees and expenses); State v. Ortega, 290 Neb. 172,
859 N.W.2d 305 (2015) (recognizing that once counsel is appointed to
represent defendant in criminal matter, Neb. Rev. Stat. § 29-3905 (Reissue
2016) requires appointing court to fix reasonable fees and expenses);
State v. Ryan, 233 Neb. 151, 154, 444 N.W.2d 656, 659 (1989) (holding
appointed counsel in criminal cases must be paid reasonable fees and
expenses and finding an abuse of discretion in refusing to pay counsel for
“substantial hours” devoted to such representation).
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of discretion to refuse to allow any fees 49 or to refuse to
compensate court-appointed counsel for services necessarily
performed in representing the defendant. 50 Moreover, when a
statute requires the court to fix reasonable fees for appointed
counsel, the trial court has a duty to determine whether the
requested fees are in fact reasonable, even if there is no objec-
tion to the application or no contrary evidence presented. 51
These same principles apply when a court appoints counsel in
a juvenile proceeding.
[13,14] Here, once the juvenile court appointed Roberts to
represent Kilynn in the juvenile proceedings, it had a duty
under § 43-273 to “fix reasonable fees” for the necessary legal
services Roberts performed in those proceedings. When fixing
reasonable fees, a court considers several factors: the nature
of the litigation, the time and labor required, the novelty and
difficulty of the questions raised, the skill required to properly
conduct the case, the responsibility assumed, the care and dili-
gence exhibited, the result of the suit, the character and stand-
ing of the attorney, and the customary charges of the bar for
similar services. 52
In these consolidated appeals, Washington County does not
contend the juvenile court failed to consider any of these
factors when fixing fees. Instead, it argues the fees allowed
in 2019 were excessive and unreasonable, because Roberts
already has been paid significant fees, because some of the
billed time related to defending the county’s objection to her
fee applications, and because some of the billed time pertained
to activities on appeal. We address each of these arguments
in turn.
49
See Rice, supra note 7.
50
See, Ryan, supra note 48; Rehm, supra note 19.
51
See Rice, supra note 7.
52
Id.
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(i) Prior Fee Orders
The juvenile proceeding involving Kilynn has been pend-
ing since 2016. Washington County’s primary opposition to
Roberts’ 2019 fee applications has been that considering the
total amount of fees allowed since the inception of the case,
the additional fees allowed in 2019 were excessive and unrea-
sonable. The record generally shows that before the 2019 fee
orders at issue in these consolidated appeals, Roberts applied
for and was paid a total of $23,788.40 in fees for legal services
performed in the juvenile proceeding since 2016.
[15] In arguing the fees allowed in 2019 were unreason-
able and excessive, the county does not directly challenge the
reasonableness of any earlier fee orders, nor could it. In the
absence of an appeal, a court’s order fixing court-appointed
counsel fees is conclusive upon both appointed counsel and the
county as to the amount allowed, 53 and courts have no power
to extend the time for appeal, either directly or indirectly. 54
Nor, for the most part, does the county argue that any particu-
lar time billed by Roberts in 2019 was unnecessary. Instead,
the county complains that the fees allowed in 2019, when
considered “in conjunction with” 55 the fees allowed since the
inception of the case in 2016, amount to excessive compensa-
tion for a “simple” 56 abuse/neglect case. The county’s primary
argument is that Roberts has “essentially been billing the
county for working on the case nearly daily for three years” 57
without offering any “explanation of why it was reasonable
and necessary.” 58
53
See, generally, Rehm, supra note 19.
54
See Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019).
55
Brief for appellant in case No. S-19-378 at 18.
56
Id. at 17.
57
Id. at 18.
58
Id. at 17.
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Roberts counters that this has not been a simple juvenile
case, and in response to the county’s suggestion that she regu-
larly billed time in this case, her brief cites the practice guide-
lines applicable to attorneys in juvenile court, which require
“high quality legal representation by all attorneys appearing
before the juvenile court.” 59 Roberts highlights that in 2019,
she successfully defended Kilynn in a 4-day parental rights ter-
mination trial, and Roberts adds that while her representation
of Kilynn has been continuous since 2016, these appeals have
effectively prevented her from being paid for any legal services
in the case since September 2018.
We agree with the county that the total amount of fees
allowed in this juvenile proceeding since 2016 has been signif-
icant. But we cannot find, on that basis alone, that the juvenile
court abused its discretion in allowing Roberts’ fee applications
in 2019.
[16,17] A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. 60 While both trial
courts and appellate courts are regarded as experts on the value
of legal services, a trial court ordinarily has a better opportu-
nity for practically appraising the situation, and an appellate
court will interfere only to correct a patent injustice, where the
allowance is clearly excessive, or insufficient. 61
Here, the juvenile court was in the best position to determine
whether the time billed in Roberts’ 2019 fee applications was
reasonable and necessary for the services performed in the
case, and we find ample support in the record for the court’s
59
See §§ 6-1470 and 6-1706 (practice guidelines for attorneys practicing
in juvenile court). See, also, Neb. Rev. Stat. § 43-272(5) (Reissue 2016)
(requiring Supreme Court to provide guidelines for standards of all
attorneys practicing in juvenile court).
60
State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016).
61
See Omaha Paper Stock Co. v. California Union Ins. Co., 200 Neb. 31,
262 N.W.2d 175 (1978).
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findings in that regard. Moreover, we soundly reject the coun-
ty’s suggestion that the court should have refused to allow any
fees at all for necessary legal services in 2019 simply because
prior fee allowances were significant. The juvenile court was
correct in concluding it would have been an abuse of discre-
tion either to refuse to fix any fees 62 or to refuse to reasonably
compensate Roberts for services necessarily performed. 63
We therefore reject the county’s argument that the fees
allowed in 2019 were unreasonable and excessive merely
because significant fees had previously been allowed.
(ii) Paying Appointed Counsel for Defending
Objections to Fee Application
Collectively, the juvenile court’s 2019 fee orders compen-
sated Roberts for approximately 222 hours of time billed in the
case; approximately 4 of those hours pertained to time billed to
prepare for and attend the hearings on the county’s objections
to her fee applications. Roberts did not bill for preparing or fil-
ing her fee applications.
Washington County contends it was error to compensate
Roberts for any time defending the fee applications, arguing
such time pertained to litigating counsel’s right to compensa-
tion and thus was not “for services performed” in the pro-
ceedings under § 43-273. Roberts responds that she is a solo
practitioner and was required to take time away from other bill-
able work to defend her statutory right to be reasonably com-
pensated for services performed in the case. She suggests that
if reasonable fees are never allowed for time spent defending
meritless objections to fee applications, then appointed counsel
will “be forced to take whatever the county attorney felt was
appropriate” 64 and it would effectively be the county attorney,
rather than the court, fixing appointed counsel fees.
62
See Rice, supra note 7.
63
See, Ryan, supra note 48; Rehm, supra note 19.
64
Brief for appellee in case No. S-19-533 at 15.
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On this record, where the juvenile court essentially con-
cluded the county’s objections to the fee applications had no
basis in law or fact, we cannot find the trial court abused its
discretion in concluding that the 4 hours billed by appointed
counsel to defend against the county’s meritless objections was
compensable as “services performed” in the proceeding under
§ 43-273. We caution that in so holding, we are not suggest-
ing that appointed counsel is always entitled to be paid for
time defending an objection to a fee application, nor are we
suggesting that it can never be an abuse of discretion to allow
fees for defending against objections to fee applications. The
reasonableness of allowing fees for defending an objection to
a fee application is highly fact dependent and will vary from
one case to the next. However, we reject the county’s conten-
tion that appointed counsel can never be allowed fees under
§ 43-273 for defending an objection to a fee application, and
to the extent the Court of Appeals’ reasoning in In re Interest
of Antone C. et al. 65 can be read to support such a contention,
it is disapproved.
Here, the record shows the juvenile court found no merit to
any of the county’s objections to Roberts’ fee applications, and
it expressly found that Roberts’ time defending her fee applica-
tions was reasonable and necessary. Because the trial court’s
reasons and rulings in that regard were not clearly untenable,
we find no abuse of discretion and we reject the county’s argu-
ment that the court erred in compensating appointed counsel
for this time.
(iii) Applying to Juvenile Court for Payment
of Legal Services Performed on Appeal
Roberts’ April 2019 fee application included approximately
1.2 hours billed for services performed on appeal, and her
July 2019 fee application included approximately 20 hours of
time billed for services on appeal. Washington County objected
65
In re Interest of Antone C. et al., 12 Neb. Ct. App. 152, 669 N.W.2d 69
(2003).
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to this time and took the position that if Roberts wanted to be
paid for services performed on appeal, she needed to first seek
appointment in the appellate court, and then needed to apply
to the appellate court for payment once the appeal was con-
cluded. The juvenile court rejected both of these arguments and
allowed the fees.
We have not previously addressed whether appointed coun-
sel in a juvenile proceeding should apply to the juvenile court,
or to the appellate court, for payment of services performed on
appeal. But before we discuss that issue, we find it necessary
to correct the county’s assertion that Roberts needed to seek
reappointment in the appellate court once the county took an
appeal. Our appellate rules make clear that “[t]he attorneys of
record and guardians ad litem of the respective parties in the
court below shall be deemed the attorneys and guardians ad
litem of the same parties in [the appellate] court, until a with-
drawal of appearance has been filed” and the procedure for
withdrawal has been followed. 66 As such, there is no need for
appointed counsel to seek reappointment in the appellate court
when a case is appealed.
The question whether counsel appointed in a juvenile pro-
ceeding should apply to the juvenile court or to the appellate
court for payment of services performed on appeal requires more
discussion. We begin with the pertinent statutory language.
Section 43-273 provides that counsel appointed under the
juvenile code “shall apply to the court before which the pro-
ceedings were had for fees for services performed” and that the
court “shall fix reasonable fees.” It also provides that once fees
are fixed, “[t]he county board of the county wherein the pro-
ceedings were had shall allow [fees] in the amount determined
by the court.” 67
The language of § 43-273 is somewhat different from
the statutory language governing payment of court-appointed
66
Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2015).
67
§ 43-273.
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counsel in criminal cases, which expressly requires that
appointed counsel “shall apply to the . . . court which appointed
him or her . . . for fees for services performed pursuant to such
appointment.” 68 Our appellate rules are clear that if a criminal
case is appealed, court-appointed counsel may, “after issuance
of a mandate by the appellate court, apply to the appointing
court for an attorney fee regarding services in the appeal.” 69
Currently, there is no similar court rule addressing whether
court-appointed counsel in a juvenile proceeding should apply
to the juvenile court or to the appellate court for services per-
formed when a juvenile proceeding is on appeal.
We understand Washington County to take the position that
once a juvenile proceeding is appealed, the appellate court
becomes “the court before which the proceedings were had” 70
and appointed counsel must apply to the appellate court for
payment of fees for all services performed on appeal. However,
were we to construe § 43-273 to require court-appointed coun-
sel to apply to the appellate court, rather than the juvenile
court, for payment of legal services performed on appeal, it
would cause an absurd result.
Nebraska’s appellate courts are located in Lancaster County,
and § 43-273 requires that once fees are fixed, “[t]he county
board of the county wherein the proceedings were had” is
required to allow the claim. As such, construing § 43-273 to
require appointed counsel to apply to the appellate court for
payment would make Lancaster County responsible for pay-
ing all fees fixed for services performed by court-appointed
counsel on appeal. An appellate court should try to avoid, if
possible, the construction of a statute that would lead to an
absurd result. 71
68
§ 29-3905.
69
Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) (emphasis supplied).
70
§ 43-273.
71
See Hotz, supra note 5.
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[18] The more sensible construction of § 43-273 is that
“the court before which the proceedings were had” refers
to the appointing juvenile court, even if an appeal is taken.
We therefore hold that when a juvenile case is appealed,
§ 43-273 requires appointed counsel to apply to the juvenile
court, not the appellate court, for payment of services per-
formed on appeal. The juvenile court here was correct to reject
Washington County’s suggestion that Roberts must apply to the
appellate court for payment of her fees.
Ordinarily, a juvenile court will want to wait for issuance of
the appellate mandate before fixing reasonable fees for services
on appeal, because that will allow it to fully evaluate the vari-
ous factors a court is to consider when fixing fees. 72 But on this
record, and absent a statute or court rule requiring appointed
counsel to wait for the appellate mandate before applying for
fees, we cannot find the juvenile court abused its discretion in
fixing fees before the appellate mandate issued.
V. CONCLUSION
For the foregoing reasons, we affirm the fee orders of the
juvenile court.
Affirmed.
72
See Rice, supra note 7 (when fixing fees for court-appointed counsel,
courts should consider nature of litigation, time and labor required,
novelty and difficulty of questions involved, skill required, responsibility
assumed, diligence exhibited, result of suit, standing of attorney, and
customary charges for similar services).