Roberts v. Roberts

Decision Date04 September 2015
Docket Number2140426.
Citation189 So.3d 79
Parties Pamela Stephens ROBERTS. v. Joseph Alan ROBERTS.
CourtAlabama Court of Civil Appeals

H. Stanton "Bill" Burns III of Burns Legal & Political Affairs, Remlap, for appellant.

Thomas Parchman III of The Parchman Law Firm, Birmingham, guardian ad litem.

DONALDSON, Judge.

Guardians ad litem appointed to represent the interests of minor children in domestic-relations cases are entitled to receive reasonable fees for their services. See § 26–2A–52, Ala.Code 1975

, and Rule 17, Ala. R. Civ. P. This appeal raises the questions whether the Jefferson Circuit Court ("the trial court") awarded an unreasonable fee to a guardian ad litem appointed to represent the interests of a child in a divorce case, whether the trial court erred in determining that the guardian ad litem's fee in such a case is not limited to the rate specified in § 15–12–21, Ala.Code 1975, and whether the trial court erred by failing to join a child as a party to the divorce proceedings. We affirm the trial court's judgment.

Background

Joseph Alan Roberts ("the husband") filed a complaint for a divorce against Pamela Stephens Roberts ("the wife") on May 20, 2013. The wife answered and filed a counterclaim for a divorce. At the time the complaint was filed, one child, W.R., had been born of the marriage. In a motion filed on December 11, 2013, the husband alleged that the wife had become pregnant by another man while the parties were separated and had given birth to a child, T.F., in November 2013. The husband requested that the trial court enter an order requiring the husband and T.F. to undergo DNA testing to determine whether the husband was the biological father of T.F. The husband also requested the trial court to appoint a guardian ad litem "for the minor child." The record indicates that the wife did not immediately oppose the husband's motion. The trial court entered an order on January 22, 2014, ordering the husband and T.F. to undergo DNA testing at the wife's expense. In that order, the trial court appointed a guardian ad litem for W.R., without mentioning T.F., and directed the wife to deposit $2,500 with the trial-court clerk as security for the costs of the guardian ad litem. Although the trial court's order specifically appointed the guardian ad litem to represent the interests of W.R., it is apparent from the record that the guardian ad litem took efforts to represent the interests of both W.R. and T.F. On October 22, 2014, the guardian ad litem filed a motion to compel the wife to pay the $2,500 security into court pursuant to the trial court's January 22 order. On November 12, 2014, the trial court granted the guardian ad litem's motion to compel and ordered the wife to pay the $2,500 security into court within 14 days. On November 21, 2014, the wife filed a motion objecting, for the first time, to the provision of the January 22, 2014, order requiring her to pay $2,500 into court as security for the guardian ad litem's fee and asking the trial court to set aside the requirement. The wife contended that the amount of $2,500 as security for the guardian ad litem's fee was arbitrary and unreasonable. She further contended that the rate of compensation for the guardian ad litem should be governed by § 15–12–21

, the provision of the Code governing payment for defense of indigent defendants. The trial court did not immediately rule on the wife's motion.

On January 8, 2015, the trial court entered a divorce judgment that incorporated a settlement agreement reached by the parties. The judgment contained a provision stating that the husband was not the biological father of T.F. The judgment did not address the issue of the guardian ad litem's fee. On January 15, 2015, the trial court entered an order directing the trial-court clerk to pay the guardian ad litem the amount of $2,500 that it had ordered the wife to pay into court in its orders of January 22, 2014, and November 12, 2014. The record shows that the wife had not paid the funds into court as ordered. On January 20, 2015, the guardian ad litem submitted a detailed time sheet indicating that he had provided 7.7 hours of services in the matter.

On January 22, 2015, the wife filed a motion to alter, amend, or vacate the trial court's January 15, 2015, order, raising arguments similar to those asserted in her November 21, 2104, motion—that the guardian ad litem's fee was unreasonable and that the guardian ad litem's compensation should be governed by and limited to the rate set forth in § 15–12–21

. On January 22, 2015, the guardian ad litem filed a motion for a finding of contempt against the wife, alleging that the wife had not complied with the trial court's previous orders directing her to pay the $2,500 security into court. On January 30, 2015, the trial court entered an order vacating its order of January 15, 2015. The trial court scheduled a hearing for February 3, 2015. No transcript of that hearing has been provided to this court.

On February 12, 2015, the trial court entered a final judgment on the issue of the guardian ad litem's fee, ordering the wife to pay the guardian ad litem $1,540 within 14 days. That same day, the trial court entered an order denying the wife's November 21, 2014, motion. On February 27, 2015, the wife filed a petition for a writ of mandamus in this court seeking to set aside the trial court's February 12, 2015, order. This court elected to treat the petition as an appeal. See Niezer v. SouthTrust Bank, 887 So.2d 919, 923 (Ala.Civ.App.2004)

("attorney-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case"). On appeal, the wife contends that the trial court set an unreasonable fee for the guardian ad litem, that the guardian ad litem's fee should be governed by and limited to the rate provided in § 15–12–21, and that the trial court erred in not joining T.F. as a party to the divorce action.

Discussion

Generally, a trial court has the authority to appoint a guardian ad litem to represent a child in a divorce proceeding and to order a reasonable fee to be paid for the guardian ad litem's services. See § 26–2A–52, Ala.Code 1975

, and Rule 17, Ala. R. Civ. P. Rule 17(d), which governs the appointment and compensation of guardians ad litem, provides, in pertinent part:

"Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the minor or incompetent person in the capacity of an attorney or solicitor.... 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 services rendered in such cause, to be taxed as a part of the costs in such action, and which is to be paid when collected as other costs in the action, to such guardian ad litem."

The rule does not specify the rate of compensation for a guardian ad litem's services. Instead, the rule provides that the trial court is to determine a "reasonable fee or compensation" for the guardian ad litem's services.

The wife contends that the Alabama Legislature, by enacting § 15–12–21

, has established a reasonable rate of compensation for services rendered by guardians ad litem who represent children in the trial courts. The wife contends that the plain language of § 15–12–21

required the trial court to enter an order setting the guardian ad litem's compensation at the rate of $70 per hour. Section 15–12–21 provides, in pertinent part:

"(b) If it appears to the trial court in a delinquency case, need of supervision case, or other judicial proceeding in which a juvenile is a party, that the juvenile is entitled to counsel and that the juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for the juvenile. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile to the best of his or her ability.
"....
"(d) If the appropriate method for providing indigent defense services is by appointed counsel in a case described in subsections (a), (b), and (c), including cases tried de novo in circuit court on appeal from a juvenile proceeding, appointed counsel shall be entitled to receive for their services a fee to be approved by the trial court. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of seventy dollars ($70) per hour for time reasonably expended on the case....
"(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, not to exceed 90 days, counsel shall submit a bill for services rendered to the office. The bill shall be accompanied by a certification by the trial court that counsel provided representation to the indigent defendant, that the matter has been concluded, and that to the best of his or her knowledge the bill is reasonable based on the defense provided. The trial court need not approve the items included on the bill or the amount of the bill, but may provide any information requested by the office or the indigent defense advisory board relating to the representation. The bill for compensation of appointed counsel shall be submitted to the office. After review and approval, the office shall recommend to the Comptroller that the bill be paid. The office may forward the bill to the indigent defense advisory board for review and comment prior to approval. The Comptroller shall remit payment in a
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5 cases
  • J.G. v. B.G. (Ex parte J.G.)
    • United States
    • Alabama Supreme Court
    • March 22, 2019
    ...fee to be paid for the guardian ad litem's services. See § 26–2A–52, Ala. Code 1975, and Rule 17, Ala. R. Civ. P.’ Roberts v. Roberts, 189 So.3d 79, 81 (Ala. Civ. App. 2015)." 225 So.3d at 633. Section 26-2A-52, Ala. Code 1975, which deals with guardians and estates, is part of the Alabama ......
  • Turner v. Turner
    • United States
    • Alabama Court of Civil Appeals
    • May 20, 2016
    ...a guardian ad litem's fees using the same criteria as are applicable to awards of attorney's fees in general. See Roberts v. Roberts, 189 So.3d 79 (Ala.Civ.App.2015). The trial court received itemized invoices detailing the services provided and the time spent by the guardian ad litem. The ......
  • Shinaberry v. Wilson (Ex parte Shinaberry)
    • United States
    • Alabama Supreme Court
    • July 31, 2020
    ...amount should be $250 based on payment for "work in circuit court."2 We recognize that the Court of Civil Appeals in Roberts v. Roberts, 189 So. 3d 79 (Ala. Civ. App. 2015), and T.C.M. v. W.L.K., 248 So. 3d 1 (Ala. Civ. App. 2017), affirmed fees awarded to guardians ad litem, applying the a......
  • T.C.M. v. W.L.K., 2160032
    • United States
    • Alabama Court of Civil Appeals
    • April 28, 2017
    ...applicable to a trial court's assessment of an attorney fee to the assessment of a guardian ad litem fee. Roberts v. Roberts, 189 So.3d 79, 84–85 (Ala. Civ. App. 2015). Thus, a trial court assessing a guardian ad litem fee should consider such factors as"(1) the nature and value of the subj......
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