Meyer v. Meyer

• Decision Date: 24 November 1992
• Docket Number: Nos. 60829,60837,s. 60829
• Citation: 842 S.W.2d 184
• Parties: Jean M. MEYER, Petitioner, v. Norvel M. MEYER, Respondent, St. Louis County, Missouri, Intervenor/Appellant, Adrienne E. Anderson, Guardian ad Litem/Respondent. Donna Kaye SLADEK, Petitioner, v. Martin Joseph SLADEK, Respondent, St. Louis County, Missouri, Intervenor/Appellant, Pamela Wright, Guardian ad Litem/Respondent.
• Court: Missouri Court of Appeals

Page 184

842 S.W.2d 184

Jean M. MEYER, Petitioner, v. Norvel M. MEYER, Respondent, St. Louis County, Missouri, Intervenor/Appellant, Adrienne E. Anderson, Guardian ad Litem/Respondent.

Donna Kaye SLADEK, Petitioner, v. Martin Joseph SLADEK, Respondent, St. Louis County, Missouri, Intervenor/Appellant, Pamela Wright, Guardian ad Litem/Respondent.

Nos. 60829, 60837.

Missouri Court of Appeals,

Eastern District,

En Banc.

Nov. 24, 1992.

John A. Ross, Christopher J. McCarthy, Clayton, for St. Louis County, intervenor.

Michael B. Stern, St. Louis, for Jean M. Meyer, petitioner.

J. Patrick Winning, Chesterfield, for Norvel F. Meyer, respondent.

Michael J. Blaney, Clayton, for Adrienne E. Anderson, Guardian ad Litem/respondent.

Dennis Rowlett, Kirkwood, for Donna Kaye Sladek, petitioner.

Richard Eisen, St. Louis, for Martin Joseph Sladek, respondent.

Ramon J. Morganstern, Clayton, Kenneth H. Graebber, St. Louis, for Harriett Sladek, intervenor.

Pamela S. Wright, Clayton, Guardian ad Litem/respondent.

Pamela S. Wright, Clayton, for Dr. Ann Dell Duncan, Judgment Creditor.

GRIMM, Judge.

In these two cases, Meyer v. Meyer and Sladek v. Sladek, the trial court appointed guardians ad litem (GAL) for the children and ordered their fees paid from public funds of St. Louis County. In an attempt to collect their fees, the guardians garnished County's funds. County then moved to intervene and quash the garnishments; both motions were denied.

County raises two points on appeal. First, it alleges the trial court erred when it denied County's application "to intervene as a matter of right to set aside money judgments entered against [County] in two separate actions in which the County was never a party and to quash garnishments based on such judgments." Second, it alleges the trial court erred in refusing to set aside the judgments because they "were entered without in personam jurisdiction." We combine these points for consideration and disposition. ¹ We reverse and remand for further proceedings.

I. Background

In Meyer, Judge Patrick Clifford appointed a GAL pursuant to § 452.423; ² he ordered each party to pay $150.00 into the court's registry as a deposit on the GAL fees. Thereafter, Judge Susan Block found that the GAL was appointed "because of the allegations of child abuse." She awarded GAL fees of $3,975.00. Judge Block found "the parties are without substantial means." She ordered the deposited funds to be paid to the GAL and the balance "be paid from public funds by St. Louis County, pursuant to Sec. 452.423(4) and 210.160(4) R.S.Mo.1988."

In Sladek, Judge Block appointed the GAL on her own motion. According to the GAL, the GAL, "with the consent of both parties and their attorneys, retained the services of [a] child psychologist ... to examine the minor children and their parents for the purpose of making a recommendation regarding permanent and temporary custody awards."

In response to a request for part payment of GAL fees, Judge Robert S. Cohen ordered Mr. Sladek to pay the GAL $2,000 and the psychologist $1,060. Thereafter, Judge Philip J. Sweeney found that Mr. Sladek was "unable to pay" those sums. Judge Sweeney awarded GAL fees of $10,685.29 and psychologist fees of $1,910.00 and directed that these fees be paid "from public funds" of County "pursuant to Section 452.423(4)."

When the GALs garnished County's bank account, County filed motions to intervene, to set aside judgments, and to quash garnishments. The motions in both cases were consolidated. They were heard and denied by Judge Sweeney.

II. Statutory Basis for GAL

Where, as here, child custody in a dissolution proceeding is contested, § 452.423.1 authorizes the trial court to appoint a guardian ad litem. Further, in any dissolution proceeding in which child abuse is alleged, the trial court "shall appoint a guardian ad litem." (emphasis added). Id.

We observe in passing that § 210.160 also requires the appointment of a guardian ad litem in "every case involving an abused or neglected child which results in a judicial proceeding." Because the matters before us are dissolution proceedings, we confine our discussion to the application of § 452.423.

Section 452.423.4 directs that the "guardian ad litem shall be awarded a reasonable fee for such services to be set by the court." This statute continues as follows (emphasis and bracketed material added):

The court, in its discretion, may award such fees as a judgment to be paid by any party to the proceedings, or may tax such fees as costs to be paid [a] by the party against whom costs are taxed, or [b] from public funds. Such an award of guardian fees shall constitute a final judgment in favor of the guardian ad litem. Such final judgment shall be enforceable against the parties in accordance with chapter 513, RSMo.

The language of the statute sets forth two methods for assessing GAL fees. The two methods are (1) awarding the fees as a judgment to be paid by a party and (2) taxing the fees as costs to be paid by a party or from public funds.

We first consider the statutory language as it applies to awarding the fees as a judgment. Section 452.423.4, stripped of language concerning taxation of the fees as costs, reads:

The court, in its discretion, may award such fees as a judgment to be paid by any party to the proceedings,.... Such an award of guardian fees shall constitute a final judgment in favor of the guardian ad litem. Such final judgment shall be enforceable against the parties in accordance with chapter 513, RSMo. (our emphasis).

From this language, we discern the following: (1) the trial court may award GAL fees "as a judgment to be paid by any party"; ³ (2) "Such an award" refers back to the award of "a judgment to be paid by any party"; (3) the "judgment to be paid" by a party is a "final judgment"; (4) the "final judgment" is enforceable against the parties; and (5) enforcement of the judgment by issuance of an execution pursuant to chapter 513 is authorized.

In contrast, § 452.423.4, stripped of the above language concerning fees as a judgment, leaves the following concerning taxing the fees as costs:

The court, in its discretion, ... may tax such fees as costs to be paid [a] by the party against whom costs are taxed, or [b] from public funds. (emphasis and bracketed material added).

From this language, the following is apparent: (1) instead of awarding the GAL fees as a judgment, the court may assess them as costs; (2) the costs may be assessed against a party; and (3) the costs may be ordered paid from public funds.

Our construction of § 452.423.4 is consistent with other statutory provisions. Section 511.020 defines a judgment as "the final determination of the right of the parties in the action." Thus, by definition, a judgment is applicable only to "the parties."

Further, § 511.030 provides that a judgment "may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants." Also, by its terms, § 452.423.4 provides that the "final judgment" is "enforceable against the parties."

County, neither a plaintiff nor a defendant, was not a party to these actions. Sections 452.423.4, 511.020, and 511.030 only permit judgments against parties. Thus, it is clear that a judgment could not be entered against County unless it was a party to this action.

On the other hand, § 452.423.4 gives the trial court discretion to tax the GAL fees as costs to be paid from "public funds." In this context, "public funds" means county funds, to be paid out of the treasury of the county in which the court is held. See Stewart v. St. Louis County, 630 S.W.2d 127, 128 (Mo.App.E.D.1982). Thus, the trial court could tax the guardian fees against County.

Although neither court order uses the statutory words "tax such fees as costs to be paid ... from public funds," both orders refer to paying the GAL fees from public funds pursuant to § 452.423. Section 452.423 provides only one way to pay GAL fees from public funds--tax as costs. Thus the clear intent of the orders was to tax the GAL fees as costs to be paid from public funds.

III. Intervention

The opening sentence in the argument section of County's brief asserts: "St. Louis County, Missouri takes this appeal to establish that a trial court must obtain in personam jurisdiction over St. Louis County prior to entering a money judgment against it." This argument misses the mark. Under § 452.423.4, the trial court did not enter a "money judgment" against County. Rather, the trial court taxed the GAL fees as costs to be paid by County.

A trial court does not have to obtain in personam jurisdiction over a county prior to taxing costs to County. Section 476.270, RSMo 1986, provides that all expenditures accruing in the circuit courts, with some exceptions not applicable here, "shall be paid out of the treasury of the county in which the court is held in the same manner as other demands."

In State ex rel. Taylor v. Clymer, 503 S.W.2d 53 (Mo.App.W.D.1973), our western district colleagues held that indigent spouses in divorce proceedings were entitled to service by publication on non-resident spouses, and that "such an expenditure is within the plain meaning of Section 476.270." Id. at 57; see also State ex rel. Henderson v. Blaeuer, 723 S.W.2d 589, 590 (Mo.App.W.D.1987).

In Stewart, 630 S.W.2d at 127, this court was asked to determine the meaning of "public funds" as used in § 210.160, RSMo 1978. The trial court had determined they were "state funds." We reversed, holding that GAL fees were to be paid pursuant to § 476.270 by "the county in which the court is held." Id. at 128. Stewart held only that county funds, rather than state funds, would pay fees awarded to guardians ad litem. The procedure for accomplishing this payment was neither raised nor addressed in Stewart, nor is it set forth in § 452.423.

Section 452.423 authorizes the trial court to tax the fees as costs, to be paid either...