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


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/07/2017 09:10 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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    Nebraska Supreme Court A dvance Sheets
    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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    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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    WHITE v. WHITE
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    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
    
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    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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    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
    
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    [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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    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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    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.