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296 Nebraska Report

WHITE v. WHITE

Cite as 296 Neb. 772

Elizabeth A. White, appellee, v. James F

White and James McGough, appelle

and Douglas County, Nebras

intervenor-appella

___ 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 obligation to resolve the questions independently of the conclusion reached 

by the trial court.

2. Attorney Fees: Appeal and Error. A party may recover attorney fees 

and expenses in a civil action only when a statute permits recovery or 

when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

3. Courts: Attorney Fees. Courts have the inherent power to award attorney fees in certain unusual circumstances amounting to conduct during 

the course of litigation which is vexatious, unfounded, and dilatory, such 

that it amounts to bad faith.

4. Judgments: Political Subdivisions. Special considerations apply to 

court-ordered expenditures of public funds.

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

the Legislature.

6. Political Subdivisions: Counties. Any grant of power to a political 

subdivision is to be strictly construed, and any reasonable doubt of the 

existence of a power is to be resolved against the county.

7. Public Purpose: Legislature: Words and Phrases. What constitutes 

a public purpose, as opposed to a private purpose, is primarily for the 

Legislature to determine.

8. Divorce: Minors: Attorneys at Law: Parties: Public Purpose: 

Legislature. Through Neb. Rev. Stat. § 42-358(1) (Reissue 2016), the 

Legislature has determined that the work of an attorney appointed to 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/23/2017 01:13 AM CDT
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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. Mark Ashford, Judge. Reversed and remanded wi

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

Kelch, and Funke, 

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 appellate 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 district court appointed James McGough as an attorney for the 

couple’s minor children. In a supplemental temporary order 

pending trial, the court discharged McGough.

In February 2014, the district court ordered that White 

and her husband each individually pay $2,073.12 in fees to 

McGough. In April 2014, the court entered the decree of dissolution. Not having been paid by White, McGough filed a 

motion for contempt, alleging that White had not paid any of 

the fees she owed to him under the February order.

White filed for bankruptcy, and McGough was notified 

and listed as a creditor in White’s bankruptcy proceedings. 

McGough did not intervene in the bankruptcy proceedings. 

Instead, McGough filed another motion for attorney fees in the 

district court, this time requesting that the district court find 

White indigent and order Douglas County to pay the fees, pursuant to § 42-358(1).

The court stayed the hearing on McGough’s motion until the 

conclusion of the bankruptcy proceedings. Eventually, White’s 

debts, including the debt to McGough, were discharged. The 

district court resumed proceedings on McGough’s motion for 

attorney fees. It found that White was indigent and ordered 

Douglas County to pay McGough’s fees, which White had 

been ordered to pay in the divorce action.

Douglas County, as intervenor and appellant, appealed to 

this court the district court’s order that it pay McGough’s fees.1

No briefs were filed in the appeal by White, her husband, or 

the minor children. McGough filed a brief as appellee, arguing that the district court was correct in determining White 

was indigent.

1 White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016).
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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 subject 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 reimbursement 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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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 reimbursement 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 obligation 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 dissolution 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 persons 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. App. 143, 524 N.W.2d 74 (1994).

7 See In re Interest of Antone C. et al., 12 Neb. App. 152, 669 N.W.2d 69 

(2003).
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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 uniform 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 expenditures 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 existence 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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Cite as 296 Neb. 772

[7] What constitutes a public purpose, as opposed to a private 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 established 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 fundamental 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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Cite as 296 Neb. 772

Section 42-358(1) is the only statute that addresses the payment 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 interests 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 interests of the minor children in a dissolution action is for a 

public purpose only when a responsible party to the dissolution 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 dissolution 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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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 White22 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 district court and remand the cause with directions to vacate its 

order granting attorney fees and costs to McGough.

Reversed and remanded with direc

21 See Guenzel-Handlos v. County of Lancaster, supra note 11.

22 White v. White, supra note 1.