White v. White

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293 Nebraska Reports
WHITE v. WHITE
Cite as 293 Neb. 439
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Elizabeth A. White, appellee, v. James F. White and
James McGough, appellees, and Douglas County,
Nebraska, intervenor-appellant.
884 N.W.2d 1
Filed April 22, 2016. 	No. S-15-350.
1. Constitutional Law: Due Process: Judgments: Appeal and Error.
The determination of whether procedures afforded an individual com-
port with constitutional requirements for procedural due process pre-
sents a question of law. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by
the lower courts.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law. When reviewing questions of law, an appellate court resolves the
questions independently of the conclusions reached by the trial court.
3. Attorney Fees: Appeal and Error. A finding of indigency under Neb.
Rev. Stat. § 42–358(1) (Reissue 2008) is a matter within the initial
discretion of the trial court, and such a finding will not be set aside on
appeal in the absence of an abuse of discretion by the trial court.
4. Constitutional Law: Due Process: Counties: Political Subdivisions.
U.S. Const. amend. XIV and Neb. Const. art. I, § 3, prohibit the State
from depriving any “person” of life, liberty, or property without due
process of law. A county, as a creature and political subdivision of the
State, is neither a natural nor an artificial person.
5. Attorney Fees: Guardians Ad Litem. For purposes of Neb. Rev. Stat.
§ 42–358(1) (Reissue 2008), a person is indigent if he or she is unable
to pay the guardian ad litem or attorney fees without prejudicing, in a
meaningful way, his or her financial ability to provide the necessities
of life, such as food, clothing, shelter, and medical care for himself or
herself or his or her legal dependents.
6. Judgments: Time. When an indigence hearing takes place last in the
chain of events, a district court’s determination of indigence should
depend upon a party’s finances at the time of the indigence hearing.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:27 AM CST

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293 Nebraska Reports
WHITE v. WHITE
Cite as 293 Neb. 439
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Reversed.
Donald W. Kleine, Douglas County Attorney, and Meghan
M. Bothe for intervenor-appellant.
James McGough, of McGough Law, P.C., L.L.O., guardian
ad litem.
Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.
Heavican, C.J.
INTRODUCTION
This case comes to us as a dispute between James McGough
and Douglas County, Nebraska (the County). During the under-
lying suit for dissolution of marriage, Elizabeth A. White
was ordered to pay McGough $2,073.12 in guardian ad litem
(GAL) fees. After White failed to comply and subsequently
had her debts discharged in bankruptcy, the district court found
White to be indigent and ordered the County to pay the fees.
The County appeals. We reverse.
BACKGROUND
In July 2012, White filed a complaint for dissolution of
marriage. The district court appointed McGough as GAL for
the couple’s minor children. In February 2014, on McGough’s
motion, the district court ordered that White and her husband
each individually pay $2,073.12 to McGough. The order did
not hold White and her ex-husband jointly and severally liable
for the fees. In April, McGough filed a motion for contempt,
alleging that White had not paid any portion of the fees she
owed to him under the February order. White’s ex-husband
paid his portion of the fees owed.
In April 2014, White gave notice that she had filed for
bankruptcy. McGough was notified and listed as a creditor in
White’s bankruptcy proceedings. About 1 month after White

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WHITE v. WHITE
Cite as 293 Neb. 439
gave notice that she had filed for bankruptcy, McGough
made another motion for attorney fees in the district court,
this time requesting that the district court find White indi-
gent and order the County to pay the fees, pursuant to Neb.
Rev. Stat. § 42-358(1) (Reissue 2008). Section 42-358(1)
states that when a court appoints an attorney to represent the
interests of minor children, “[i]f the court finds that the party
responsible is indigent, the court may order the county to pay
the costs.”
In accordance with Rules of Dist. Ct. of Fourth Jud. Dist.
4-11 (rev. 1995) (Rule 4-11), McGough gave the County
written notice and appeared at a hearing in June 2014. The
County requested a stay of proceedings, ostensibly required
by bankruptcy laws. At the hearing, the County also asserted
that the stay was necessary because indigence could not be
determined until White’s debts were discharged, and also
because McGough might obtain his payment through the bank-
ruptcy proceedings.
The district court granted the stay. McGough took no action
in the bankruptcy proceedings. Eventually, White’s debts,
including the debt to McGough, were discharged. The district
court then resumed proceedings, and a hearing on the issue
of White’s indigence was held in September 2014, with the
County present.
During the September 2014 hearing, the County argued that
it did not have notice or the opportunity to oppose the reason-
ableness of McGough’s fees when the amount was determined
in February 2014. The County also disputed White’s indigence.
It had moved for leave to serve discovery upon parties in
order to determine indigence, but the district court denied the
motion. In lieu of discovery, the County made a record by call-
ing White to testify.
The table below shows a rough estimate of White’s vari-
ous income and expenses in September 2014 based upon
the record.

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WHITE v. WHITE
Cite as 293 Neb. 439
INCOME AND EXPENSES IN SEPTEMBER 2014
Income
Gross income 	$3,416.67
Government assistance 	804.00
Approximate taxes 	(389.94)
Approximate after-tax income 	$3,830.73
Expenses
Retirement 	($ 	175.63)
Health insurance 	(151.52)
Dental insurance 	(25.00)
Vision insurance 	(19.37)
Other payroll deductions 	(32.88)
Gym and locker 	(0.00)
Parking fee 	(26.33)
Rent 	(900.00)
Electric/heat/gas 	(240.00)
Telephone/cell phone/Internet/cable 	(395.00)
Food and home 	(600.00)
Children’s education 	(100.00)
Clothing/laundry/dry cleaning 	(75.00)
Personal care 	(80.00)
Medical/dental 	(175.00)
Gas and automobile care 	(160.00)
Charity 	(45.00)
Automobile insurance 	(110.00)
Additional childcare and activities 	(95.00)
Total of expenses 	$3,405.73
TOTAL REMAINING 	$ 	425.00
In December 2014, the district court found that White was
indigent and ordered the County to pay McGough’s fees. The
County appealed, but because of an oversight in the order, the
appeal was dismissed for lack of a final order. In April 2015,
the district court filed a revised final order. The County again
appealed, and we moved the case pursuant to our authority
to regulate the docket of this court and the Nebraska Court
of Appeals.

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WHITE v. WHITE
Cite as 293 Neb. 439
ASSIGNMENTS OF ERROR
The County assigns, restated and renumbered, that the dis-
trict court erred by (1) failing to give notice and opportunity to
be heard on the issues of indigence and reasonableness of fees
as required by due process, (2) using the discharge of White’s
debts as a basis for finding White indigent, and (3) finding that
White was financially unable to pay the GAL fees.
STANDARD OF REVIEW
[1] The determination of whether procedures afforded an
individual comport with constitutional requirements for pro-
cedural due process presents a question of law. On questions
of law, a reviewing court has an obligation to reach its own
conclusions independent of those reached by the lower courts.1
[2] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court resolves the
questions independently of the conclusions reached by the
trial court.2
[3] A finding of indigency under § 42-358(1) is a matter
within the initial discretion of the trial court, and such a finding
will not be set aside on appeal in the absence of an abuse of
discretion by the trial court.3
ANALYSIS
County’s Right to Notice and
Opportunity for Hearing.
In the County’s first assignment of error, it argues that the
district court violated its rights under the Due Process Clauses
of U.S. Const. amend. XIV and Neb. Const. art. I, § 3. We find
this argument to be without merit.
[4] The County has no right to due process. U.S. Const.
amend. XIV and Neb. Const. art. I, § 3, prohibit the State from
1 State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
2 DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
3 Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).

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WHITE v. WHITE
Cite as 293 Neb. 439
depriving any “person” of life, liberty, or property without due
process of law. A county, as a creature and political subdivision
of the State, is neither a natural nor an artificial person.4
But Rule 4-11 does provide:
When a court-appointed [GAL] makes application for
payment of fees, if the indigence of either party to the
action is at issue such that the county may be ordered to
pay the fees and costs, the guardian shall serve a copy of
the fee application and notice of hearing upon the County
Attorney. The County Attorney may appear at the hearing
to represent the interests of the county or may file a writ-
ten waiver of appearance.
Though we conclude that the County has no right to con-
stitutional due process, we consider whether the procedure
under Rule 4-11 was violated. We find that the procedure
was followed.
First, the County argues that it was denied proper notice
when the district court considered White’s financial status
dating back to November 2012, before the County had notice
that indigence was at issue. The County appears to argue that
even though it had notice and an opportunity to be heard on
the issue of indigence, this process was insufficient because
the district court used some evidence about White’s past finan-
cial status.
This argument fails because the County did receive actual
notice as soon as indigence was at issue in May 2014. And the
County had an opportunity to be heard on the issue before the
district court ruled. Parties are often, in fact usually, required
to argue about facts as they existed prior to the time of a hear-
ing or trial. Just because the County was required to analyze
past events does not mean that it was denied proper notice that
those past facts were at issue. To rule otherwise would forever
limit all courts to the consideration of facts contemporaneous
4 City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839
(2002).

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WHITE v. WHITE
Cite as 293 Neb. 439
with the hearing. Additionally, such a holding would require
that notice be given to the County in every single suit in which
GAL fees arise, just in case indigence may later become an
issue. These results would be unsound. The County’s first argu-
ment lacks merit.
Second, the County asserts that the district court denied the
County notice and opportunity to be heard when it allegedly
contradicted its February 2014 order. Essentially, the County
argues that in February 2014—by ordering White to pay half of
McGough’s fees—the district court impliedly found that White
was not indigent. The County argues that when the district
court later explicitly found that White was indigent, the court
violated principles of due process.
This argument lacks merit. The County cites no authority to
support its legal contention that once a court impliedly finds
a party has sufficient funds, a later reversal of that finding
violates another party’s right to notice and hearing. Further,
the February order did not imply that White was not indigent.
The order merely required White and her ex-husband to pay
McGough. There was no determination of the parties’ abilities
to pay, because indigence was not yet at issue.
Third, the County argues that it was deprived of notice
and opportunity to be heard on the issue of reasonableness of
McGough’s fees. This argument is distinct from the County’s
first argument, because the district court did actually make a
determination that McGough’s fees were reasonable before
the County received notice in the case. But, to the extent the
County is entitled to notice and a hearing on the issue of indi-
gence, this right does not also extend to notice and opportunity
to be heard on reasonableness of fees. Rule 4-11 requires only
that, “if the indigence of either party to the action is at issue
such that the county may be ordered to pay the fees and costs,
the guardian shall serve a copy of the fee application and
notice of hearing upon the County Attorney.” (Emphasis sup-
plied.) The rule is silent as to reasonableness.

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WHITE v. WHITE
Cite as 293 Neb. 439
In sum, the County has no due process rights. Rule 4-11
requires only notice that indigence is at issue and an opportu-
nity for the County to be heard on that question. The County
received notice as soon as indigence was raised and had the
opportunity to argue against a finding of indigence. Thus, the
County’s first assignment of error is without merit.
Alleged Improper Basis for
District Court’s Order.
In its second assignment of error, the County argues that
the district court erred by finding White to be indigent solely
because the debt to McGough had been discharged in bank-
ruptcy, and not because White was actually incapable of paying
the GAL fees. We disagree.
[5] In Mathews v. Mathews,5 we stated:
[F]or purposes of § 42-358(1), a person is indigent if he
or she is unable to pay the GAL or attorney fees without
prejudicing, in a meaningful way, his or her financial abil-
ity to provide the necessities of life, such as food, cloth-
ing, shelter, and medical care for himself or herself or his
or her legal dependents.
In its order, the district court found:
White is a person who is indigent and unable to pay
her attorney’s fees in a meaningful way, based upon her
financial ability to provide the necessity of life, such as
food, clothing, shelter and medical care for herself or
her dependents.
This Court has considered the bankruptcy proceedings
in determining whether . . . White is indigent.
The district court’s order is ambiguous. The order does not
explain how the court factored White’s bankruptcy into its
decision. The court could have meant that it used the bank-
ruptcy as an indication that before the discharge, White met the
Mathews standard of indigence. In the alternative, the district
5 Mathews, supra note 3, 267 Neb. at 612, 676 N.W.2d at 52.

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WHITE v. WHITE
Cite as 293 Neb. 439
court may have been using the fact of White’s bankruptcy as
the basis for finding White indigent because McGough could
not legally collect payment from White.
We believe the former interpretation is correct. The district
court was clearly aware of the Mathews standard and explic-
itly found that White’s ability to provide the necessities of life
would be prejudiced by paying the fees. Therefore, the dis-
trict court apparently referenced White’s bankruptcy merely
as circumstantial evidence that White met the Mathews test
for indigence. Even though the standards for bankruptcy
and indigence are not the same, the district court’s reason-
ing was not improper as a rule so long as the district court
did not abuse its discretion by finding that White met the
Mathews test.
Thus, the County’s second assignment of error is without
merit and we now turn to its third.
White’s Financial Ability
to Pay Fees.
In its third assignment of error, the County argues that the
district court erred by finding that White was unable to pay
the GAL fees. First, it argues that the district court should
have considered White’s finances only after her debts had
been discharged in bankruptcy. Second, the County argues that
in any time period, either before or after White’s debts were
discharged, White had sufficient funds to pay McGough’s fees
without prejudicing her ability to provide the necessities of
life. We agree with the County.
We have never addressed which time period a court should
consider in order to determine whether a party is indigent. Nor
can the court locate any analogous authority from other juris-
dictions. Therefore, we must look to statutory interpretation
of § 42-358(1) to determine whether the district court should
have looked to White’s finances in May 2014 (when McGough
raised the indigence issue), September 2014 (during the indi-
gence hearing), or at some other time.

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WHITE v. WHITE
Cite as 293 Neb. 439
The language of § 42-358(1) is in the present tense: “If the
court finds that the party responsible is indigent, the court may
order the county to pay the costs.” (Emphasis supplied.) Alone,
this may suggest that courts should look to the party’s finances
at the time of the indigence hearing. But § 42-358(1) could
also apply at the time that fees are fixed and ordered, because
the preceding sentence states: “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.”
Considering this ambiguity in the statute, we turn to second-
ary sources. The legislative history of § 42-358(1) is silent on
this question. But an Alaska statute defining indigence, which
this court cited parenthetically in Mathews,6 defines an indigent
party as “a person who, at the time need is determined, does
not have sufficient assets, credit, or other means to provide
for payment of an attorney and all other necessary expenses
of representation without depriving the party or the party’s
dependents of food, clothing, or shelter.”7 The phrase appears
to require that the test be applied to the party’s finances at the
time of the indigence hearing or determination.
We agree as a matter of policy that it is best to apply the
test for indigence to the party’s finances at the time the court
is making the determination. In some cases, as in the present
one, there may be a significant amount of time between the
appointment of a GAL, the ordering of fees, and the actual
determination of indigence. In these cases, a party’s finan-
cial status could change significantly, either for better or for
worse. It would be unfair to hold a party to their past financial
situation if they are presently unable to pay the GAL fees.
And it would also be wasteful and unfair to hold the County
responsible for fees because a party used to be indigent, even
though the party may be more financially secure at the time of
the determination.
6 Id.
7 Alaska Stat. § 18.85.170(4) (2004) (emphasis supplied).

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WHITE v. WHITE
Cite as 293 Neb. 439
[6] For these reasons, we hold that when an indigence hear-
ing takes place last in the chain of events, a district court’s
determination of indigence should depend upon a party’s
finances at the time of the indigence hearing.
We turn next to the question of White’s indigence. As dis-
cussed above, in Mathews, we held:
[F]or purposes of § 42-358(1), a person is indigent if he
or she is unable to pay the GAL or attorney fees without
prejudicing, in a meaningful way, his or her financial abil-
ity to provide the necessities of life, such as food, cloth-
ing, shelter, and medical care for himself or herself or his
or her legal dependents.8
We review the district court’s finding of indigence for abuse
of discretion.9 A judicial abuse of discretion requires that the
reasons or rulings of a trial judge be clearly untenable, unfairly
depriving a litigant of a substantial right and a just result.10
In its December 2014 order, the district court found that
White was unable to pay the GAL fees “based upon her finan-
cial ability to provide the necessity of life.” This finding is
untenable based upon the record.
We decline to delineate an exclusive list of expenses that
constitute the necessities of life or that impact one’s ability
to provide those necessities. However, White clearly had suf-
ficient funds to pay the GAL fees even after any expenses
conceivably related to the necessities of life. As reflected in
the table above, the record shows that as of September 2014,
White had an income of approximately $3,830 after taxes. We
acknowledge that a portion of this income was from govern-
ment assistance. However, that fact is not relevant to the stan-
dard we set forth in Mathews, except that we account for the
assistance as another source of income. White spent approxi-
mately $1,929.21 per month on food, clothing, clothing care,
8 Mathews, supra note 3, 267 Neb. at 612, 676 N.W.2d at 52.
9 See Mathews, supra note 3.
10 Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008).

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WHITE v. WHITE
Cite as 293 Neb. 439
rent, and medical insurance and care—the expenses explicitly
listed in Mathews. White also spent an additional $930 on
somewhat related expenses, such as gasoline and automobile
care, automobile insurance, dental insurance, utilities, and a
telephone and Internet bundle. While we do not now hold that
these additional expenses should factor into the determination
of indigence, we find it informative that after all of these costs,
White still had $999.52 remaining of her monthly pay after
taxes. In fact, after accounting for all of White’s expenditures
contained in the record, she had approximately $425 remaining
each month.
We do not intend to establish a bright-line rule for indigence
based upon an amount of income or remaining funds after
regular expenses. But the record in this particular case estab-
lishes very clearly that White was capable of paying the GAL
fees without meaningfully prejudicing her ability to provide the
necessities of life for herself or her dependents.
The County’s third assignment of error has merit.
CONCLUSION
We reverse the district court’s finding that White was
indigent.
Reversed.
Miller-Lerman, J., participating on briefs.