White v. White , 296 Neb. 772 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2017 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
Elizabeth A. White, appellee, v. James F.
White and James McGough, appellees,
and Douglas County, Nebraska,
intervenor-appellant.
___ N.W.2d ___
Filed May 26, 2017. No. S-16-865.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law. When reviewing questions of law, an appellate court has an obli-
gation 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 uni-
form course of procedure for allowing attorney fees.
3. Courts: Attorney Fees. Courts have the inherent power to award attor-
ney 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 politi-
cal 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
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296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
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. M ark 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, P.C., L.L.O., guardian
ad litem.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
NATURE OF CASE
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 appel-
late court, apply to the appointing court for an attorney fee
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
regarding services in the appeal.” (Emphasis supplied.) We
reverse, and remand with directions.
BACKGROUND
In July 2012, Elizabeth A. White (White) filed a complaint
against James F. White for dissolution of marriage. The dis-
trict 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 dis-
solution. 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, pur-
suant 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, argu-
ing that the district court was correct in determining White
was indigent.
1
White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
We held that the district court had abused its discretion in
finding White indigent. Accordingly, we reversed the court’s
order requiring Douglas County to pay McGough’s fees.2
Approximately 3 weeks after the mandate was received by
the district court, McGough moved the court to require Douglas
County to pay $1,719.87 in attorney fees for McGough’s
expenses and time spent defending Douglas County’s appeal
in White v. White.3 The court sustained the motion and ordered
Douglas County to pay McGough $1,719.87 for the costs and
fees incurred during the appeal.
The court reasoned that the fees incurred for the time
spent defending the appeal were distinct from the fees sub-
ject to our opinion in White. Operating under the erroneous
assumption that McGough had not yet been removed as a
court-appointed attorney for the children at the time of the
appeal in White, the district court reasoned that McGough’s
involvement as appellee was required under his appointment
as an attorney for the children. The court concluded that reim-
bursement was sufficiently encompassed by the last sentence
of § 2-109(F): “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 regarding services in
the appeal.”
The court’s order directing Douglas County to pay
McGough’s costs and fees for his appellate work in White is
the subject of the current appeal.
ASSIGNMENTS OF ERROR
Douglas County assigns that the district court erred in
ordering it to pay McGough for his costs and fees incurred
during the appeal in White because (1) McGough failed to
file a timely motion for such fees with the Supreme Court
2
Id.
3
Id.
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WHITE v. WHITE
Cite as 296 Neb. 772
clerk pursuant to § 2-109(F), (2) there is no statutory basis for
awarding such reimbursement, and (3) awarding such reim-
bursement is contrary to the law of the case.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court.4
ANALYSIS
The issue presented is whether the district court had the
authority to order Douglas County to reimburse McGough for
the time and expense in Douglas County’s appeal in White.5
The husband, wife, and minor children in the underlying dis-
solution action had no interest in the appeal in White, and they
likewise have no interest in the present appeal. In Brackhan
v. Brackhan,6 we recognized that under § 42-358(6), a county
ordered to pay fees for an appointed attorney in a dissolution
action has standing to appeal such order. Section 42-358(6)
states that “[a]ny person aggrieved by a determination of the
court may appeal such decision to the Court of Appeals.” Such
appeals are to be docketed separately with the aggrieved per-
sons listed as intervenors.7
Douglas County asserts several arguments why the district
court erred in ordering that it pay McGough’s appellate fees.
Arguably the most fundamental of these is its argument that
when neither party to a dissolution action is indigent, there is
no statute that permits a district court to order the county to
expend public funds to reimburse an appointed attorney for his
4
Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).
5
White v. White, supra note 1.
6
Brackhan v. Brackhan, 3 Neb. Ct. App. 143, 524 N.W.2d 74 (1994).
7
See In re Interest of Antone C. et al., 12 Neb. Ct. App. 152, 669 N.W.2d 69
(2003).
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WHITE v. WHITE
Cite as 296 Neb. 772
time or expenses. Douglas County points out that as a statutory
entity, it has no power to pay such costs absent a statute so
providing. We agree.
[2,3] 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 uni-
form course of procedure for allowing attorney fees.8 Courts
additionally 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.9
Neb. Rev. Stat. § 42-351(1) (Reissue 2016) provides that
a court in a domestic relations action may award costs and
attorney fees, and we have also said that a uniform course
of procedure exists in Nebraska for the award of attorney
fees in dissolution cases.10 We have never addressed whether
this power extends to appellate fees, which would normally
be awarded by the appellate court. At issue is the district
court’s authority in a dissolution action to order the county
to reimburse out of public funds an appointed attorney’s fees
and expenses.
[4-6] Special considerations apply to court-ordered expend­
itures of public funds. A county is a political subdivision
of the state and has only that power delegated to it by the
Legislature.11 Any grant of power to a political subdivision is
to be strictly construed, and any reasonable doubt of the exis-
tence of a power is to be resolved against the county.12
8
Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
9
See, State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994); State Farm
Mut. Auto Ins. Co. v. Royal Ins. Co., 222 Neb. 13, 382 N.W.2d 2 (1986).
10
Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
11
Guenzel-Handlos v. County of Lancaster, 265 Neb. 125, 655 N.W.2d 384
(2003).
12
Id.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
[7] What constitutes a public purpose, as opposed to a pri-
vate purpose, is primarily for the Legislature to determine.13
Accordingly, in Guenzel-Handlos v. County of Lancaster,14
we held that any rules governing whether the county should
expend public funds reimbursing a county official who is not
indigent for defense costs in a criminal action should be estab-
lished by the Legislature, not by the courts.
The only exception to this rule is found in Kovarik v. County
of Banner.15 In Kovarik, we held that the judiciary could, in its
inherent authority, order the county to reimburse attorney fees
in matters “so fundamental as the indigent’s right to appointed
counsel in criminal matters.”16 We explained that such fun-
damental matters included fees incurred in a misdemeanor
prosecution by the county, if it could result in imprisonment.17
We reasoned that the county’s authority to pay the fees in
such cases derives from its duty to pay the expenses of the
local administration of justice within the county, arising from
the general system of county organization and by necessary
implication from a statutory scheme that delegates criminal
prosecution to the county level.18 We also noted that certain
levies contributing to the county general fund are by statute
authorized to be used for indigent persons.19
But Kovarik has no applicability here. The appointment of
an attorney in a civil action does not present such fundamental
matters as defending against a county’s prosecution that could
lead to imprisonment. Further, there are no indigent persons
involved in this civil action.
13
Id.
14
Id.
15
Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
16
Id. at 818, 224 N.W.2d at 763.
17
Kovarik v. County of Banner, supra note 15.
18
See id.
19
See id.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
WHITE v. WHITE
Cite as 296 Neb. 772
Section 42-358(1) is the only statute that addresses the pay-
ment by a county for the services of an attorney appointed in
a civil, dissolution action. Section 42-358(1) states:
The court may appoint an attorney to protect the inter-
ests of any minor children of the parties. Such attorney
shall be empowered to make independent investigations
and to cause witnesses to appear and testify on matters
pertinent to the welfare of the children. The court shall
by order fix the fee, including disbursements, for such
attorney, which amount shall be taxed as costs and paid
by the parties as ordered. If the court finds that the party
responsible is indigent, the court may order the county to
pay the costs.
(Emphasis supplied.)
We need not decide if the costs referred to in § 42-358(1)
could encompass those incurred on appeal, because we have
repeatedly held that § 42-358(1) permits the district court to
order the county to pay attorney fees and expenses only when
a responsible party is indigent.20 Again, no responsible party is
indigent in this case.
[8] Through § 42-358(1), the Legislature has determined
that the work of an attorney appointed to represent the inter-
ests of the minor children in a dissolution action is for a
public purpose only when a responsible party to the dissolu-
tion is indigent. If such responsible party is not indigent, the
appointed attorney has other means of pursuing payment of
his or her fees and expenses. Alternatively, dissolution courts
have the power to order that the underlying parties be jointly
and severally liable for the payment of the court-appointed
attorney’s fees.
But currently no statute allows for the payment with public
funds of an appointed attorney’s fees and expenses in a dissolu-
tion action when neither party is indigent. Any rules governing
20
See, Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004); Brackhan
v. Brackhan, supra note 6.
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WHITE v. WHITE
Cite as 296 Neb. 772
whether the county should expend public funds reimbursing a
court-appointed attorney in a dissolution action where none of
the parties is indigent should be established by the Legislature,
not by the courts.21
We held in White 22 that White was not indigent, and there
was no finding by the district court that any party responsible
for the fees and expenses incurred by McGough on appeal was
indigent. Because there is no statute granting the district court
the power to order Douglas County to pay fees in a dissolution
action where neither party is indigent, we hold that the district
court erred in ordering Douglas County to pay McGough for
his appellate work in White. Having so concluded, we need not
address Douglas County’s remaining arguments that the district
court erred.
CONCLUSION
For the foregoing reasons, we reverse the order of the dis-
trict court and remand the cause with directions to vacate its
order granting attorney fees and costs to McGough.
R eversed and remanded with directions.
21
See Guenzel-Handlos v. County of Lancaster, supra note 11.
22
White v. White, supra note 1.