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.
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.
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.