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.


March 19, 2012 § Leave a comment

Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point  2. A case that blows up in one’s face.  3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.

We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.

In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:

“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.

¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”

You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.

It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:

The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.

The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.

Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”

MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of 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 response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.

The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”

A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.

In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.

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