Assessment of the GAL Fee
December 6, 2016 § Leave a comment
Who should be responsible to pay the cost of the guardian ad litem (GAL)?
That was one of the questions in the case of Darby v. Combs, handed down by the COA on October 25, 2016.
Monica Darby, paternal grandmother of Addie, filed for custody of the child, alleging that the child’s parents, Drew and Crystal, were unfit. A GAL investigated and concurred that Crystal had neglected the child. Crystal’s parents, Harold and Karron Combs, intervened, seeking custody for themselves. The chancellor ruled that Crystal and Drew were unfit to have custody, and awarded custody to Monica. He assessed the GAL’s $3,000 fee one-half to Monica, and one-half to the Combses. Monica appealed. The COA affirmed.
Judge Carlton addressed the issue for the court:
¶34. Monica next asserts as error the chancellor’s judgment assessing half of the GAL fee to Monica and the other half to the Combses. Monica admits that the GAL substantiated Monica’s allegations of neglect set forth in her petition seeking custody, but Monica maintains that it is a manifest injustice to assess against her, the prevailing party, any portion of the fee from a GAL she did not request.
¶35. We recognize that “[o]ur rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party.” McCraw v. Buchanan, 10 So. 3d 979, 985 (¶20) (Miss. Ct. App. 2009) (quoting Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821 (¶9) (Miss. 2000). Mississippi Rule of Civil Procedure 17(d) provides: “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.” This Court has held that chancellors possess large discretion in apportioning costs. McCraw, 10 So. 3d at 985 (¶21). If upon review this Court finds that “the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.” Id.
¶36. In McCraw, 10 So. 3d at 985 (¶22), the chancellor appointed a GAL to represent the child’s “best interest, to investigate allegations of abuse, and to report any findings of abuse to the trial court.” The chancellor assessed the GAL fees equally against both parties. Id. Upon review, this Court found “no evidence in the record to indicate that the apportionment of the cost for the guardian ad litem was an undue burden to either party.” Id. As a result, this Court held that the chancellor “did not abuse his discretion in equally assessing the guardian ad litem fees to the parties.” Id.
¶37. In the present case, the chancellor’s January 20, 2015 opinion reflects the following assessment with regard to the GAL fee: “The GAL fee is set by the [c]ourt to be $3,000 with $1,500 to be paid by Monica, and $1,500 to be paid by [the Combses].” In her brief, Monica asserts that the apportionment of the GAL costs “work[s] a manifest injustice upon her”; however, she provides no evidence to support this allegation. Id. We thus find no error in the chancellor’s equal assessment of the GAL fee to Monica and the Combses.
A thought or two:
- As I pointed out in a previous post on this very topic, MRCP 54(d) specifically authorizes the chancellor to do exactly as he did here. It states, in part, “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs … ” [my emphasis]. That means to me that the court can direct any assessment that is reasonable. I don’t understand why R54 is never mentioned in these cases.
- If you’re going to claim that the chancellor’s assessment works a hardship on your client, then for gosh sake, make a record. Offer an 8.05 financial statement. Have your client testify about her financial straits. If you don’t make a record, (a) the trial judge has no basis to make that ruling, and (b) you won’t be able to argue it successfully on appeal. Remember that, in every case in which a GAL is appointed, assessment of the fee is going to be made by the trial judge, which means that it is an issue on which you need to present some evidence.