Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/28/2020 09:05 AM CST




                                                           -1-
                             Nebraska Court of Appeals Advance Sheets
                                  28 Nebraska Appellate Reports
                                                  OSWALD v. OSWALD
                                                  Cite as 28 Neb. App. 1




                                         John H. Oswald, appellant, v.
                                          Tammy L. Oswald, appellee.
                                                      ___ N.W.2d ___

                                          Filed January 28, 2020.   No. A-18-573.

                                        supplemental opinion on issue of
                                            motion for attorney fees
                 1. Attorney Fees: Time: Appeal and Error. Pursuant to Neb. Ct. R. App.
                    P. § 2-109(F) (rev. 2014), a motion for attorney fees must be filed within
                    10 days of either (1) the release of the court’s opinion or (2) the entry of
                    the order of the court disposing of the appeal.
                 2. ____: ____: ____. A party may request attorney fees incurred in defend-
                    ing a petition for further review, as long as the motion is filed within 10
                    days of the Supreme Court’s decision.

                  Appeal from the District Court for Douglas County: Gary
               B. Randall, Judge. Second motion for attorney fees granted
               in part and in part denied.
                  Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell,
               P.C., L.L.O., for appellant.
                 Donald A. Roberts and Justin A. Roberts, of Lustgarten &
               Roberts, P.C., L.L.O., for appellee.
                    Riedmann, Arterburn, and Welch, Judges.
                 Arterburn, Judge.
                                    INTRODUCTION
                 This matter is before the court on Tammy L. Oswald’s sec-
               ond motion for attorney fees. Motions for attorney fees filed
                               -2-
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       OSWALD v. OSWALD
                       Cite as 28 Neb. App. 1

pursuant to Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) are
typically disposed of with a minute entry. However, in this
instance, we have determined that a supplemental opinion
is prudent in order to clarify whether this court can award
attorney fees for time spent responding to a petition for fur-
ther review which was ultimately denied by the Nebraska
Supreme Court. Finding that we can award attorney fees in
such a situation, we grant, in part, Tammy’s motion for attor-
ney fees.
                  FACTUAL BACKGROUND
   This case involves John H. Oswald’s request to modify
the decree of dissolution which dissolved his marriage to
Tammy. Specifically, John asked the district court to reduce
his alimony and child support obligations based on a reduc-
tion in his income. The district court denied John’s request
for a modification of the decree. John appealed that deci-
sion to this court. We affirmed the district court’s order in a
memorandum opinion, Oswald v. Oswald, No. A-18-573, 2019
WL 2267213 (Neb. App. May 28, 2019) (selected for posting
to court website).
   Two days after the filing of our memorandum opinion,
Tammy filed a motion for attorney fees. In the motion, she
requested that she be awarded attorney fees in the amount
of $7,500, which was the “flat fee” billed to her by her
attorney for his work on the appeal. We denied Tammy’s
motion with the following minute entry: “[Tammy’s] motion
for attorney fees overruled; [Tammy] has failed to provide
documentation of counsel’s time spent working on the appeal
of this case. Therefore, court cannot determine whether flat
$7,500 fee charged to [Tammy] for work on appeal is sup-
ported by attorney time and costs specifically devoted to
appeal.” Subsequently, John filed a petition for further review
of our decision to affirm the district court’s decision, which the
Supreme Court denied on August 20, 2019.
   Two days after the Supreme Court denied John’s petition
for further review, Tammy filed a second motion for attorney
                                -3-
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                        OSWALD v. OSWALD
                        Cite as 28 Neb. App. 1

fees. Tammy captioned the motion as being brought “[i]n the
Nebraska Supreme Court.” She requested that this court’s
previous denial of attorney fees be reviewed and that she be
awarded further attorney fees “incurred in the defense of the
Petition for Further Review.” Attached to Tammy’s motion was
a bill from her attorney which indicated that 4 hours were spent
in preparing a responsive brief to John’s petition for further
review. Tammy was charged $240 per hour, or a total of $960,
for this work.
                           ANALYSIS
   We first address Tammy’s request that we review our previ-
ous denial of her motion for attorney fees which she incurred
as a result of John’s appeal from the district court’s order. We
note that by captioning her motion as being brought “[i]n the
Nebraska Supreme Court,” Tammy clearly intended this issue
to be reviewed by the Supreme Court, rather than by this court.
However, because the Supreme Court denied John’s petition
for further review, it declined to exercise jurisdiction over this
case. As a result, Tammy’s second motion for attorney fees
comes before this court.
   As to Tammy’s second request for attorney fees incurred as
a result of John’s appeal of the district court’s order, it is ques-
tionable whether that portion of the motion can be addressed
on the merits. Tammy did not file a motion for rehearing of
our prior order regarding her request for attorney fees, nor
did she petition the Supreme Court for further review of that
decision. She raised this issue only after the Supreme Court’s
denial of John’s petition for further review. Even if this issue
could be considered at this juncture, we can see no reason to
overturn our previous decision. As we stated in our minute
entry, Tammy failed to provide any documentation of the spe-
cific amount of time her counsel spent working on the appeal
of this case. As a result, we are unable to determine whether
the flat fee of $7,500 charged to her is supported by adequate
attorney time and costs which were specifically devoted to
her appeal.
                               -4-
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       OSWALD v. OSWALD
                       Cite as 28 Neb. App. 1

   We now turn to Tammy’s request that she be awarded the
attorney fees she incurred as a result of having to defend
John’s petition for further review. We determine that Tammy’s
request for such attorney fees is timely and that she should be
awarded attorney fees in the amount of $960.
   [1] In determining that Tammy’s request for attorney fees
incurred as a result of her defense of John’s petition for further
review was timely, we must clarify a previous opinion issued
by this court. In State on behalf of Keegan M. v. Joshua M., 21
Neb. App. 71, 838 N.W.2d 1 (2013) (supplemental opinion),
we addressed whether a motion for appellate attorney fees was
timely when it was not filed within 10 days after the release
of an opinion, but was filed within 10 days of the Supreme
Court’s denial of a petition for further review. In analyzing this
question, we examined, in detail, the language of § 2-109(F),
which governs the filing of a motion for attorney fees follow-
ing an appeal. Section 2-109(F) provides, in pertinent part,
as follows:
      Such a motion must be filed no later than 10 days after
      the release of the opinion of the court or the entry of the
      order of the court disposing of the appeal, unless other-
      wise provided by statute. Any person filing a motion for
      attorney fees beyond the 10-day time limit must include
      within the motion a citation to the statutory authority per-
      mitting a filing beyond the time limit prescribed by this
      rule. For purposes of this subsection an order of the court
      disposing of the appeal shall include an order disposing
      of a motion for rehearing. A motion for attorney fees
      which is timely filed in the Court of Appeals shall toll the
      time for filing a petition for further review.
In State on behalf of Keegan M. v. Joshua M., supra, we
concluded that appellee’s motion for appellate attorney fees
was not timely filed when it was filed within 10 days of the
Supreme Court’s denial of a petition for further review. In
reaching this decision, we found that pursuant to § 2-109(F),
a motion for attorney fees must be filed within 10 days of
                               -5-
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                       OSWALD v. OSWALD
                       Cite as 28 Neb. App. 1

either (1) the release of the court’s opinion or (2) the entry of
the order of the court disposing of the appeal. Because appel-
lee did not file his motion for attorney fees within 10 days of
the release of our opinion, we analyzed whether the motion
was within 10 days of “the entry of the order of the court dis-
posing of the appeal.” We ultimately held that “an order deny-
ing a petition for further review is not ‘an order of the court
disposing of the appeal’ as contemplated in § 2-109(F).” State
on behalf of Keegan M. v. Joshua M., 21 Neb. App. at 74, 838
N.W.2d at 3. We held that as a result, appellee’s motion for
appellate attorney fees was not timely filed.
   [2] We do not read State on behalf of Keegan M. to stand
for the proposition that no request for attorney fees can be
timely filed following the denial of a petition for further
review. Rather, the holding in State on behalf of Keegan M.,
that a motion for attorney fees is not timely when it is filed
10 days after a petition for further review has been denied,
is limited to those situations where a party is attempting to
recover attorney fees incurred during the entire appellate proc­
ess. Stated more succinctly, if a party does not file a motion
for attorney fees within 10 days of the release of an opinion
or an order disposing of a motion for rehearing, the party is
foreclosed from recovering attorney fees which were incurred
prior to the release of the opinion or the order disposing of
the motion for rehearing. However, a party may request attor-
ney fees incurred in defending a petition for further review,
as long as the motion is filed within 10 days of the Supreme
Court’s decision.
   Here, Tammy’s second motion for attorney fees requested
fees which were incurred after the release of our opinion and
while she was defending John’s petition for further review.
Tammy’s motion was filed within 10 days of the Supreme
Court’s denial of the petition for further review. As such,
the request was timely. Moreover, the request for $960 in
attorney fees, which accounts for 4 hours of work, appears
reasonable. Accordingly, we award Tammy $960 in attorney
                              -6-
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                      OSWALD v. OSWALD
                      Cite as 28 Neb. App. 1

fees which were incurred in her defense of the petition for
further review.
                         CONCLUSION
   We decline to review our previous decision denying
Tammy’s request for attorney fees which were incurred prior
to our opinion being issued. However, we grant Tammy’s
request for attorney fees which were incurred in her defense of
the petition for further review. We therefore order John to pay
$960 to Tammy for attorney fees incurred due to his petition
for further review.
                Second motion for attorney fees granted
                in part and in part denied.
