Mathews v. Mathews

267 Neb. 604

676 NW 2d 42

KATRINA LOUISE MATHEWS, APPELLEE and CROSS-APPELLEE, v. MARK WINSLOW MATHEWS, APPELLEE and CROSS-APPELLANT, and DOUGLAS COUNTY, NEBRASKA, APPELLANT.

No. S-02-851.

Supreme Court of Nebraska.

Filed March 19, 2004.

James S. Jansen, Douglas County Attorney, and Bernard J. Monbouquette for appellant.

David B. Latenser, of Latenser & Johnson, P.C., for appellee Mark Winslow Mathews.

Annette Farnan of Nebraska Legal Services, Omaha, and David M. McManaman, of Nebraska Legal Services, Lincoln, for appellee Katrina Louise Mathews.

Thomas K. Harmon, of Respeliers & Harmon, P.C., for Lynnette Z. Boyle, guardian ad litem.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

I. NATURE OF CASE

In June 2002, the marriage between Katrina Louise Mathews and Mark Winslow Mathews was dissolved. Issues regarding various aspects of the divorce decree are raised in this appeal, including the trial court's determinations in regard to child custody, child support, and the division of the marital debts. In addition, we must determine whether Katrina and Mark were properly found to be indigent under Neb. Rev. Stat. § 42-358(1) (Cum. Supp. 2002), thereby making Douglas County responsible for the guardian ad litem fees.

II. BACKGROUND

On January 2, 1988, Katrina and Mark were married in Dallas, Texas. In the following years, four children were born to the marriage. The parties separated in December 1999.

On January 20, 2000, Katrina filed a petition for legal separation. On January 28, the parties entered into an agreement which provided for, inter alia, temporary custody, visitation, and child support. On February 18, the court granted Katrina's oral motion for the appointment of a guardian ad litem (GAL).

Trial began on the separation action on December 14, 2000. At the end of the day, the matter was recessed until February 26, 2001. Before the trial recommenced, on February 9, Katrina filed a second amended petition requesting, inter alia, dissolution of the marriage, custody of the children, and child support. Mark filed his answer and cross-petition on June 18. In his cross-petition, Mark requested, inter alia, custody of the children and child support.

On September 28, 2001, Mark filed a motion to require the GAL to withdraw. Essentially, Mark argued that the GAL was biased in favor of Katrina. On October 10, the court appointed counsel for the GAL. A hearing was held on the motion on November 8, and the court overruled Mark's motion at the end of the hearing.

The trial on the dissolution action began on January 22, 2002. On June 11, the court entered its decree. The court determined that the marriage was irretrievably broken and should be dissolved. In addition, the court determined that it was in the best interests of the four minor children to be in the custody of Katrina, subject to reasonable visitation with Mark. The court ordered Mark to pay child support in the amount of $1,142.56 per month. The court also divided the marital property and ordered each party to pay his or her own attorney fees and costs.

Thereafter, Mark moved for a new trial, asserting certain errors of law set forth below in the assignments of error. The court, after notice was given to Douglas County, received evidence and heard arguments on the GAL's application for fees and Mark's motion for a new trial. In its July 26, 2002, order, the court found that both parties were indigent and ordered Douglas County to pay the GAL fees. In addition, the court overruled Mark's motion for a new trial.

Douglas County filed a timely notice of appeal with respect to the district court's indigency determination, and Mark cross-appealed from the court's order overruling his motion for new trial regarding issues related to the divorce decree.

III. ASSIGNMENTS OF ERROR

Douglas County assigns, restated, that the trial court erred (1) in finding Katrina and Mark to be indigent for purposes of § 42-358 and (2) in ordering Douglas County to pay the GAL fees.

In his cross-appeal, Mark assigns, renumbered and restated, that the trial court erred (1) in failing to order Katrina's counsel, Nebraska Legal Services, to withdraw; (2) in failing to disqualify the GAL; (3) in awarding custody of the children to Katrina; (4) in its calculation of child support; (5) in its division of the marital debt; (6) in finding Katrina indigent for purposes of payment of her share of the GAL fees; and (7) in failing to award attorney fees to Mark.

IV. 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. Unisys Corp. v. Nebraska Life & Health Ins. Guar. Assn., ante p. 158, 673 N.W.2d 15 (2004).

[2] In an original divorce action, determinations as to custody in dissolution proceedings are reviewed de novo on the record, but such determinations are initially entrusted to the discretion of the trial judge and will be affirmed unless they constitute an abuse of that discretion. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).

[3] The standard of review of an appellate court in child support cases is de novo on the record, and the decision of the trial court will be affirmed in the absence of an abuse of discretion. Claborn v. Claborn, ante p. 201, 673 N.W.2d 533 (2004).

[4] The division of property is a matter entrusted to the discretion of the trial judge, which will be reviewed de novo on the record and will be affirmed in the absence of an abuse of discretion. Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003).

[5] In an action for dissolution of marriage, the award of attorney fees is discretionary, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Medlock v. Medlock, 263 Neb. 666, 642 N.W.2d 113 (2002).

[6] A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).

V. ANALYSIS

1. Douglas County's Appeal: Indigency Determination

On February 18, 2000, a GAL, who is a practicing lawyer, was appointed to conduct an investigation to protect the interests of the parties' four children. The GAL did conduct an investigation and filed a written report with the court. On June 4, 2002, the GAL filed an application for payment of fees. After a hearing, the court determined that the GAL charges were fair and reasonable and that the GAL was entitled to fees totaling $3,089. In addition, the court determined that Katrina and Mark were indigent and ordered Douglas County to pay the GAL fees. On appeal, Douglas County argues that Katrina and Mark are not indigent for purposes of § 42-358.

Section 42-358(1) provides:

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 costs.

(Emphasis supplied.)

As an initial matter, we note that although the GAL appointed in this case is an attorney, she was appointed as a GAL in the traditional sense of conducting an investigation and reporting to the court, rather than as the court-appointed legal advocate of the children. See Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998) (noting difference between GAL appointed under court's inherent equitable powers and attorney appointed as advocate for minor child). Therefore, we must decide if a GAL appointed by the court under these circumstances can be awarded his or her fees under § 42-358(1).

In 1992, § 42-358(1) was amended to add the last two sentences of the current version of the statute in order to provide courts with statutory authority to award fees to court-appointed attorneys in domestic relations cases. However, it was certainly understood at the time that both attorneys and GAL's were appointed pursuant to the authority of § 42-358(1), even though the section only references an "attorney." See, Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990) (noting § 42-358 provides authority to appoint GAL to protect interests of minor children); Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983) (same); Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974) (noting § 42-358 provides authority to appoint attorney to protect interests of minor children); Pieck v. Pieck, 190 Neb. 419, 209 N.W.2d 191 (1973) (same). Moreover, prior to 1992, the practice of awarding fees to both court-appointed GAL's and court-appointed attorneys was well established in domestic relations cases. See, Nye, supra (awarding fees to GAL); Hermance v. Hermance, 194 Neb. 720, 235 N.W.2d 231 (1975) (awarding fees to counsel appointed to represent minor children). It is, therefore, reasonable to conclude that the 1992 amendment to § 42-358(1) was intended to codify what was, in fact, occurring in practice at that time. In other words, by amending § 42-358(1), the Legislature granted courts statutory authority to award fees to court-appointed counsel, whether the attorney acted as a GAL or as a legal advocate for the minor children in a case.

A review of the legislative history relating to the amendment to § 42-358(1) supports this conclusion. The introducer of the amendment stated that the purpose of the amendment was to codify existing practice while making it clear to reluctant judges that they indeed had the authority to tax the fees of appointees as costs. Floor Debate, L.B. 1255, 92d Leg., 2d Sess. 13159 (Apr. 9, 1992)....