Allocating GAL Fees

January 6, 2020 § 1 Comment

April Garner, aka Garcia, lost custody of her son, Andrew, to her uncle, David Smith. A GAL had been appointed to investigate and report on the best interest of the child. Around a year after the GAL’s appointment, April made some unfounded allegations of sexual misconduct that caused the court-appointed GAL to do additional work. The chancellor assessed all of the GAL’s fees and expenses totalling more than $25,000 against April, and she appealed.

In Garner (aka Garcia) v. Garner, Fox, and Smith, decided October 3, 2019, the MSSC reversed. Justice Griffis wrote the 5-4 opinion:

¶105. The chancellor assessed the GAL costs as follows:

All costs of the [GAL] are . . . assessed to [April]. To the extent that these fees have been paid by [David], he shall be entitled to a monetary judgment for that amount of those fees. That any unpaid fees shall be paid by [April], as well.

That a copy of the [GAL] fees . . . was introduced at trial . . . and showed that [David] paid a total of $22,127.30. That at the time of the trial, there was an outstanding balance of $3,158.34 and the [GAL] has incurred an additional $900.00 since that date which still remains unpaid. Therefore, the [c]ourt awards a monetary judgment in the amount of $22,127.30 against April . . . in favor of David . . . for his payment of the [GAL] fees prior to trial and the [c]ourt awards a monetary judgment in the amount of $4,058.34 against April in favor of the [GAL].

April argues the chancellor’s assessment of “all” GAL fees was improper. We agree.

¶106. “In all cases in which a [GAL] is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such [GAL] for his service rendered in such cause, to be taxed as a part of the cost in such action.” Miss. R. Civ. P. 17(d). Under Section 93-5-23, GAL fees are treated as court costs to be awarded against the nonprevailing party. Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821 (Miss. 2000) (citing Miss. Code Ann. § 93-5-23). “‘Chancery courts have large discretion in apportioning costs.’” McCraw v. Buchanan, 10 So. 3d 979, 985 (Miss. Ct. App. 2009) (quoting Ashburn v. Ashburn, 970 So. 2d 204, 217 (Miss. Ct. App. 2007)). “‘Nevertheless, the exercise of such discretion is not final . . . , and if it appears that the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.’” Id. (quoting Ashburn, 970 So. 2d at 217).

¶107. The chancellor found that “[b]ased on the allegations made by the parties . . . , the appointment of a [GAL] [wa]s required.” The chancellor appointed the GAL “to investigate and ascertain the facts, and make reports and recommendations to th[e] [c]ourt as to what is
in the best interest of the minor child.” The chancellor noted that “the [p]arties may be equally responsible for payment of the attorney’s fees incurred by the [GAL] in investigating this case.” The chancellor ordered David to pay $1500 to the GAL as a retainer for his services, “plus any travel costs or other expenses that may be incurred by the [GAL], including the costs of obtaining records from third parties, in regard to this investigation.”

¶108. Notably, the GAL was appointed on September 29, 2016, approximately one year before the sexual-abuse allegations were made. Thus, although the GAL’s appointment included an investigation of the sexual-abuse allegations, his appointment was not limited to those allegations.

¶109. In Tidmore v. Tidmore, 114 So. 3d 753, 758 (Miss. Ct. App. 2013), the chancellor found the abuse allegations made by the mother were without foundation and therefore assessed attorneys’ fees against her. On appeal, the Mississippi Court of Appeals found that while the father was entitled to an award of attorneys’ fees, it was unclear whether the total amount of fees awarded was for the defense against the abuse allegations. Id. at 759. The court explained that it appeared that at least some of the fees awarded were for the modification-of-child-custody proceedings. Id. As a result, the court reversed and remanded in order for the chancellor to determine the amount of attorneys’ fees that should be awarded to the father for the defense against the baseless abuse allegations. Id.

¶110. Here, the chancellor assessed all GAL costs against April without any determination as to what portion of those costs were spent investigating the unsubstantiated sexual-abuse allegations. Like the father in Tidmore, David is entitled to those GAL costs incurred as a
result of the unsubstantiated abuse allegations. Id. However, the record is unclear what portion of the total amount of costs awarded was actually incurred by the GAL in investigating those allegations. See Miss. Code Ann. § 93-5-23 (“If after investigation . . . allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.” (emphasis added)). Accordingly, the chancellor’s assessment of GAL costs is reversed and remanded in order for the chancellor to determine the amount of GAL costs incurred as a result of the unsubstantiated sexual abuse allegations.

Do your client and the judge a favor and develop that proof at trial.

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