In re Estate of Wertzer

• Decision Date: 08 March 2019
• Docket Number: A18A1774
• Citation: 826 S.E.2d 168,349 Ga.App. 303
• Parties: IN RE ESTATE OF WERTZER.
• Court: Georgia Court of Appeals

349 Ga.App. 303

826 S.E.2d 168

IN RE ESTATE OF WERTZER.

A18A1774

Court of Appeals of Georgia.

March 8, 2019

Leslie Dean O'Neal, Leslee Champion Hungerford, Marietta, for Appellant.

Stephen Dana Morrison Jr., Caryn Suzanne Fennell, Lacey Marie Briasco, Woodstock, Rhonda Sansone Smith, for Appellee.

Brown, Judge.

This is the third appearance before this Court of a case involving the guardianship of Sierra Leigh Wertzer, an incapacitated adult. In its first appearance, Grace Wertzer, Sierra's mother and guardian, appealed from the original guardianship order she sought and obtained as Sierra approached her 18th birthday, specifically challenging the probate court's authority to establish a set visitation schedule between Sierra and her father, Saul Wertzer. In re Estate of Wertzer , 330 Ga. App. 294, 765 S.E.2d 425 (2014) (" Wertzer I "). In its second appearance, Grace appealed from the probate court's December 2016 order removing the requirement for supervision during visits between Sierra and Saul. In re Estate of Wertzer , 343 Ga. App. XXIV (Case No. A17A1223, October 27, 2017) (unpublished) ("Wertzer II "). In Wertzer II , Grace alleged, inter alia, that the probate court erred in ordering her to pay half of the fees incurred by the ward for an attorney and guardian ad litem ("GAL") in relation to Saul's petition seeking to remove the requirement for supervised visits.¹ Id. at (3). We vacated the allocation of attorney fees and GAL fees, ruling that "[t]he probate court did not purport to make any findings with respect to [its] allocation of the challenged expenses" and remanded the case "for findings and legal citation in support of an allocation of fees, if any." Id. On remand, the probate court rejected the allocation of attorney fees, ruling that they shall be borne solely by the ward as follows: "All attorney fees incurred in relation to the [probate court's] December 2016 Order for Arthur Marateck, court-appointed attorney for the Ward, benefitted the Ward, and no finding was made pursuant to OCGA § 9-15-14 or other statute allowing for the award of attorney fees." As for the GAL fees, the probate court concluded that Grace, Saul, and Sierra "shall each be responsible for 1/3 of all fees incurred ... as a reasonable and necessary expense of litigation in which all parties sought relief and/or benefitted from the appointment of the guardian ad litem."

In her sole enumeration of error, Grace contends that the probate court erred in assessing against her the fees associated with the ward's GAL because there is no statutory authority authorizing such an award. While Grace recognizes that OCGA § 29-9-15 may authorize an award of reasonable fees to a court-appointed GAL, she contends that it does not authorize the probate court to award those fees against the guardian of the ward. For the reasons discussed below, we find that the probate court correctly awarded costs to the GAL, but that it erred in awarding those costs against Grace.

In its order, the probate court expressly stated that OCGA § 9-15-14 did not apply, but characterized the GAL fees as an "expense of litigation." In her arguments on appeal, Grace characterizes the "guardian ad litem fees" as "attorney fees." They are neither. As explained below, the appellate courts of this state have repeatedly classified GAL fees as a cost of litigation.

Title 29 of the Official Code of Georgia governs guardians and wards, and Chapter 9 of that Title guides the court proceedings involving guardians and wards.² See OCGA §§ 29-9-1 et seq. That chapter allows a court, in its discretion, to appoint a GAL "to represent the interests ... of a ward in proceedings relating to the guardianship or conservatorship of that individual." OCGA § 29-9-2 (a). See also Uniform Probate Court Rule 5.4 (probate court, in its discretion, is responsible for choosing appropriate person to serve as GAL). As Grace points out in her brief, Chapter 9 of Title 29 further provides that "[a]ny legal counsel or guardian ad litem who is appointed by the court in a guardianship or conservatorship proceeding shall be awarded reasonable fees commensurate with the tasks performed and time devoted to the proceeding, including any appeal."

OCGA § 29-9-15. In

In re Olliff , 184 Ga. App. 846, 363 S.E.2d 158 (1987), we considered an application for expenses and attorney fees filed pursuant to former OCGA § 29-5-13, a predecessor to OCGA § 29-9-15, and concluded that the " ‘expenses’ " referred to in that statute "are not expenses of litigation but, rather, are tantamount to ‘costs ’ incurred in a judicial proceeding. ..." ( Emphasis supplied.) Olliff , 184 Ga. App. at 847, 363 S.E.2d 158. See also In re Connell , 217 Ga. App. 523, 457 S.E.2d 832 (1995).³

This conclusion is consistent with the treatment of GAL fees in other proceedings, including divorce and child custody. In Nguyen v. Dinh , 278 Ga. 887, 608 S.E.2d 211 (2005), our Supreme Court affirmed the award of GAL fees against the husband on a contested custody question, concluding that the husband's status as the losing party "is sufficient to authorize the discretionary assessment against him of the costs associated with that issue." (Emphasis supplied.) Id. at 887 (2), 608 S.E.2d 211. In reaching that conclusion, the Supreme Court found OCGA § 9-11-54 applicable to divorce cases. That statute provides, in pertinent part, that "[e]xcept where express statutory provision therefor is made in a statute, costs shall be allowed as a matter of course to the prevailing party [in a civil action,] unless the court otherwise directs[.]" OCGA § 9-11-54 (d).⁴

Similarly, the trial court in a child custody proceeding "may order reasonable attorney's fees and expenses of litigation, experts, and the child's guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge." OCGA § 19-9-3 (g). Reading OCGA § 19-9-3 (g) in concert with Uniform Superior Court Rule 24.9 (8) (g),⁵ this Court has affirmed costs awarded under the Code section, finding that the trial court properly exercised its discretion in determining the amount of GAL fees awarded and the apportionment of those fees between the parties. See Gordon v.Abrahams , 330 Ga. App. 795, 800 (3) (c), 769 S.E.2d 544 (2015), citing Salmon-Davis v. Davis , 286 Ga. 456, 458-459 (3), 689 S.E.2d 303 (2010).⁶

Having established that the GAL fees are a cost of litigation, the next question is whether that cost may be awarded against Grace, in her position as the ward's guardian. When examining this question, we must keep in mind that costs of litigation cannot be awarded unless authorized by statute or contract. See Kemp v. Kemp , 337 Ga. App. 627, 633, 788 S.E.2d 517 (2016) (costs of litigation, including attorney fees, cannot be awarded unless supported by statute or contract). Grace contends that OCGA § 29-4-22 (c) (1), (5) insulates her from liability for the debts and expenses of the ward. Saul and the GAL disagree, arguing that Grace is attempting to hide behind the title of "guardian" in order to avoid paying her portion of costs related to the GAL in this action specifically brought against her for failing "to provide the statutory obligations due to the ward under OCGA § 29-4-22."⁷

As we outlined in Wertzer I , OCGA § 29-4-22 governs the general duties of a guardian in protecting its ward and provides, in part, that "a guardian shall make decisions regarding the ward's support, care, education, health, and welfare[, and] shall at all times act as a fiduciary in the ward's best interest and exercise reasonable care, diligence, and prudence." OCGA § 29-4-22 (a) ; Wertzer I , 330 Ga. App. at 297 (1), 765 S.E.2d 425. Subsection (b) establishes the guardian's duties to its ward, including:

(1) Respect the rights and dignity of the ward; (2) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health; (3) If necessary, petition to have a conservator appointed; (4) Endeavor to cooperate with the conservator, if any; (5) Take reasonable care of the ward's personal effects; (6) Arrange for the support, care, education, health, and welfare of the ward, considering the ward's needs and available resources; (7) Expend money of the ward that has been received by the guardian for the ward's current needs for support, care, education, health, and welfare; (8) Conserve for the ward's future needs any excess money of the ward received by the guardian; provided, however, that if a conservator has been appointed for the ward, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the ward's future needs....

OCGA § 29-4-22 (b). Subsection (c) limits the guardian's liability by reason of the guardian-ward relationship, providing that,

[a] guardian, solely by reason of the guardian-ward relationship, is not personally liable for: (1) The ward's expenses or the expenses of those persons who are entitled to be supported by the ward; (2) Contracts entered into in the guardian's fiduciary capacity; (3) The acts or omissions of the ward; (4) Obligations arising from ownership or control of property of the ward; or (5) Other acts or omissions occurring in the course of the guardianship.

OCGA § 29-4-22 (c).

OCGA § 29-4-22 makes no mention of costs of litigation, and the fact that the General Assembly decided that the guardian of a ward cannot be liable for certain things does not compel the conclusion that guardians are therefore liable for costs of litigation. As the Supreme Court of the United States has remarked, "[w]e construe [a statute's] silence as exactly that: silence." EEOC v. Abercrombie & Fitch Stores , ––– US –––– (II), 135 S Ct 2028, 192 LEd2d 35 (2015). See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (...