In re Ray
| Decision Date | 04 September 2020 |
| Docket Number | No. 121,875,121,875 |
| Citation | 469 P.3d 1294 (Table) |
| Parties | In the MATTER OF the MARRIAGE OF Kristen RAY, Appellant, and Jason FELLERS, Appellee. |
| Court | Kansas Court of Appeals |
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant.
No appearance by appellee.
Before Hill, P.J., Malone, J., and Walker, S.J.
When judges are asked to make difficult decisions concerning the placement of children, they often seek the sound counsel of attorneys appointed to represent the best interests of the children. These specially trained lawyers speak for the children in court and not for the conflicting parents who are adversaries in often heated litigation. These independent attorneys are known as guardians ad litem. Frequently, the judge divides the fees and expenses of the guardian ad litem between the parents. That occurred in this case.
Kristen Ray, the mother of E.F., appeals the trial court's order holding her responsible for one-half of the guardian ad litem's fees and expenses here. She argues that the court did not consider her limited means when assessing the fees. Ray also contends that the guardian ad litem's fees were unreasonable because the attorney did not do a good job and violated the standards in Supreme Court Rule 110A (2020 Kan. S. Ct. R. 178). Jason Fellers, the father of E.F., did not favor us with a brief.
Because we review this question for an abuse of discretion, our review of the record does not lead us to hold that the trial court was unreasonable in assessing half of the fees to mother. We affirm.
Mother and father separate and divorce.
Ray filed for divorce from Fellers in September 2017. A month later, Fellers moved to appoint a guardian ad litem for three-year-old E.F., asserting Ray and he had "diametrically opposed positions relating to child custody and whom the residential parent should be." He asked the court to split the costs evenly between the parties.
Ray objected to the appointment, saying that she could not afford a guardian ad litem and that E.F.'s age would make any interview difficult. The judge appointed a guardian ad litem over her objection and assessed the total fee and expenses to Feller, but retained jurisdiction to adjust the fee responsibilities until the conclusion of the proceedings.
The judge appointed Catherine Craft as the guardian ad litem. Craft completed her investigation and submitted a 16-page report in early March 2018 just after E.F. had turned four. Craft interviewed nine people: Ray; Fellers; E.F.'s counselor; a state social worker who was investigating allegations against Fellers; three staff members at E.F.'s preschool; and Ray's mental health counselor.
The report suggested that 14 of the 18 factors relevant to decisions about child custody in K.S.A. 2019 Supp. 23-3203(a) were important to this case and analyzed those factors in detail. The report then made seven recommendations:
Eventually, the court granted a divorce and reserved ruling on the division of assets and child custody issues. Through mediation, Ray and Fellers reached an agreement on a permanent parenting plan. But when Ray later mailed notice to Fellers of her intent to relocate with E.F. to either Lawrence or Tulsa, Fellers objected. He maintained that the move would constitute a material change in circumstance, allowing the trial court to modify the parenting plan. So they went back to court.
The court eventually held a three-day trial on Ray's request to move. Before that trial, Fellers asked the court to assess some of Craft's fees against Ray. He advised that those fees had accrued to $6,144 since the court had appointed Craft and he had paid $4,978, while Ray had paid nothing. He asked the court to assess to Ray 50 percent of the fees that had accrued before Ray's notice of intent to move, and 100 percent of the fees that had accrued since then. The court did not rule on the guardian ad litem's fees until well after the trial.
Ultimately, the court denied Ray's motion to move. This ruling and several other issues were appealed, and a panel of this court affirmed the trial court. See In the Matter of Marriage of Ray and Fellers , No. 121,011, 2020 WL 2502234 (Kan. App. 2020) (unpublished opinion). But here, we confine our review to the issue of the guardian ad litem's fees.
By the end of April 2019, Craft had received no payments from Ray. She asked the trial court to approve her fees and grant judgment against Ray for $5,752, which was 50 percent of her fees and expenses. As statutory authority for her request, Craft cited K.S.A. 2019 Supp. 23-2715, which says that "[c]osts and attorney fees may be awarded to either party as justice and equity require."
When the court heard the matter, Craft stated that both Ray's and Feller's attorneys had told her that the court had ordered a 50-50 fee split, but she could not find a journal entry stating that. She said that she had detailed billing statements showing the work that she did, the time that she charged, and the hourly rate. She also said that she had provided those statements to Ray's lawyer. Craft then submitted those documents to the court, but she did not introduce them as exhibits, so they are not in the record on appeal.
Ray testified that she objected to the amount Craft had requested. She said that she thought a guardian ad litem was unnecessary and she did not want to pay what Craft had requested because her work was irregular. She also asserted that Craft had not done enough work because she had met with E.F. only once. She did not meet with Ray and Fellers when Ray had asked her to. And Craft did not contact some people that Ray had wanted her to talk to. In Ray's view, Craft participated little at trial. Ray acknowledged that Craft became more involved as the case proceeded, but she also disagreed with some of Craft's recommendation about parenting time.
The trial court reiterated that guardian ad litem fees would be split 50-50 and granted judgment to Craft for the full amount and, if necessary, collection fees. The court acknowledged that it had initially assessed 100 percent of the fees against Fellers, but that was because Ray had objected to the appointment of a guardian ad litem and the court had wanted to move things along. The court said it had reviewed Craft's billing statements and found the fees were related to the work that was involved. The court disagreed with Ray that a guardian ad litem had been unnecessary. The judge said that after listening to the trial, the record fully supported the appointment. Finally, he explained that given E.F.'s age, spending a lot of time with him probably would not have been very useful and that Craft's limited questioning at trial may have just meant that the parties' attorneys were thorough—it did not mean that Craft did not fully participate.
Our analysis
Ray attacks the court's holding on two fronts. First, she objects to the trial court's decision to assess her fees at all. But then, she also challenges the amount of fees that the court assessed. We address the arguments separately.
Kansas courts can award attorney fees only if a statute authorizes them or the parties agree to allow them. Craft cited K.S.A. 2019 Supp. 23-2715 in her motion for judgment against Ray, which allows a court to award costs and attorney fees "to either party...
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