Who Pays the GAL?

June 10, 2015 § 1 Comment

The COA’s decision in Smith v. Wright, handed down April 7, 2015, includes this brief quote from the case of MDHS v. Murr, 797 So.2d 818, 821 (¶9) (Miss. 2000):

“Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party.”

Put in those terms, that would appear to be a pretty inflexible rule. In my experience, though, chancellors often apportion the fees between the parties. Several good reasons for apportionment come to mind:

  • Often the non-prevailing party is drug-addicted or otherwise impaired in his or her ability to pay, and it’s inequitable to saddle that party with all of the cost (as you see in Murr, below).
  • It’s also inequitable to the GAL to assign the cost to a person without ability to pay. Judges want, and the judicial system needs, to have GAL’s paid. We don’t need people refusing appointments because they’re tired of working for free.
  • Doesn’t the above rule give the appearance that the GAL might want to tilt the recommendations of the report against the party with the ability to pay?
  • Appointment of a GAL is done always for the benefit of a child, not as some kind of financially punitive measure to be slapped against a party.

Here is the entirety of what the MSSC said on the law of the subject in its opinion in Murr:

¶ 9. Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party. Miss. R. Civ. P. 17(d); S.C.R. v. F.W.K., 748 So.2d 693 (Miss.1999) (not an abuse of discretion to tax non-prevailing party with costs including guardian ad litem fees); Lowrey v. Forrest County Bd. of Supervisors, 559 So.2d 1029 (Miss.1990); In re Newsom, 536 So.2d 1 (Miss.1988). There is no doubt that our civil rules prescribe that a guardian ad litem be compensated for his or her efforts, and that the monies so ordered be taxed as court costs. Miss. R. Civ. P. 17(d) provides, in relevant part, that

In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action. Newsom, 536 So.2d at 2.

Neither Smith nor Murr mentioned MRCP 54(d), however, which reads in part this way:

Except when express provision thereof is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs …  [Emphasis added]

Seen in light of R54(d), the prevailing-party rule, then, does not appear as inflexible as these cases have applied it. The trial court specifically is given the discretion to direct otherwise than the prevailing-party rule. Of course, discretion is always reviewable by the appellate courts for abuse of that discretion. The chancellor who “otherwise directs” per R54(d) would be prudent to spell out all of the criteria that she relied on in deviating from the prevailing-party rule.

It would not seem to me to be an abuse of discretion to allocate the cost of the GAL based on ability to pay, taking into account some of the points set out above. For one thing, the prevailing party has gotten the positive benefit of the report, and that should be worth something. For another, the chancellor is in the best position to weigh all of the equities at work in the case and to make the allocation equitably.

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