Small v. Piper

• Decision Date: 23 June 2004
• Docket Number: 2004-UP-407
• Parties: Paul C. Small and Joselene S. Small, Plaintiffs, v. Nicole C. Piper, Defendant, Nicole D. Kane Piper f/k/a Nicole Denise Weaver, Plaintiff, v. Robert Eugene Weaver and Joselene S. Small, Defendants, And Joselene S. Small, Cross-Plaintiff, v. Curtis Piper, Cross-Defendant, Of Whom Joselene S. Small is the Appellant. And Nicole C. Piper and Curtis Piper are the Respondents.
• Court: South Carolina Court of Appeals

Paul C. Small and Joselene S. Small, Plaintiffs, v. Nicole C. Piper, Defendant, Nicole D. Kane Piper f/k/a Nicole Denise Weaver, Plaintiff, v. Robert Eugene Weaver and Joselene S. Small, Defendants, And Joselene S. Small, Cross-Plaintiff, v. Curtis Piper, Cross-Defendant, Of Whom Joselene S. Small is the Appellant. And Nicole C. Piper and Curtis Piper are the Respondents.

No. 2004-UP-407

Court of Appeals of South Carolina

June 23, 2004

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted April 6, 2004.

Revised & Refiled September 10, 2004.

Appeal York County, Robert E. Guess, Family Court Judge

John D. Elliott, of Columbia, for Appellant.

Nicole and Curtis Piper of York, Respondents.

PER CURIAM

Joselene S. Small appeals the family court's order requiring her to pay one-half of the guardian ad litem's (Guardian's) fees, one-half of the guardian's attorney's fees, and a substantial portion of Nicole and Curtis Piper's attorney's fees. We affirm in part reverse in part, and remand. ^[1]

FACTS

Nicole Piper and Robert Weaver were divorced in 1993. Piper was granted custody of the parties' two minor children with visitation rights for Weaver. In 1996, Weaver's visitation was restricted to permit visits only under the supervision of the children's paternal grandparents Joselene and Paul Small. Later that year, Weaver was incarcerated and the family court issued a temporary order allowing the Smalls to continue visitation. The Smalls exercised this visitation until Weaver was released from prison in 1997. Afterward, Weaver resumed visitation supervised by the Smalls.

In 2000, Piper brought this action against Weaver and Joselene Small to suspend visitation. Weaver and Small counterclaimed for custody and requested Piper be held in contempt for refusing to allow visitation. The court appointed a guardian ad litem to represent the interests of the children. The guardian hired an attorney to represent her.

The family court's final order terminated Small's visitation and suspended Weaver's pending a determination if it would be in the best interest of the children for his visits to resume. The court also found Piper's decision to stop the visitation was not contemptuous. The order required Small and Piper to each pay one-half of the fee awarded to the guardian and one-half of the guardian's attorney's fees. The court also required Small to pay a substantial portion of attorney's fees incurred by Piper and her husband.

DISCUSSION

In appeals from the family court, we may find the facts in accordance with our own view of the preponderance of the evidence. This broad scope of review does not, however require us to disregard the findings of the family court judge, who saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony. Hollar v. Hollar, 342 S.C. 463, 472, 536 S.E.2d 883, 887 (Ct. App. 2000).

I. Guardian's Authority to Hire an Attorney

Small contends the family court erred in awarding attorney's fees to the guardian's attorney, arguing the guardian improperly retained counsel without obtaining prior authorization from the family court. We disagree.

At the time this case was before the family court, there was no requirement for a guardian to seek prior approval from the court before retaining counsel. ^[2] However, Rule 12, SCRFC provides that [i]f a guardian ad litem is represented by an attorney, the court in its discretion may assess reasonable attorneys' fees and costs.” Accordingly, if the guardian ad litem did not seek and obtain prior approval from the court for the hiring of an attorney, then the guardian assumed the risk that the court might not allow a fee. In this case, the court subsequently approved the attorney's hiring and awarded modified fees, exercising its inherent power to protect the best interests of the children and its discretionary authority under Rule 12.

After Small complained in a pre-trial motion that counsel for the guardian was not authorized, the court responded by issuing an order requiring the guardian's attorney to participate in the action. In the final order, the court addressed Small's concern directly, stating:

In making this award, the Court is cognizant of the fact that the Guardian ad Litem retained [counsel] without prior approval of the Court. It should be noted that a Guardian ad Litem will not in all instances be awarded attorney's fees unless the Court has approved the appointment of such an attorney. The Court has decided to award an attorney's fee... because the issue of whether or not he was to be involved in this case has been dealt with in a pre-trial motion by [Small's] attorney. After that motion, the Order issued did not relieve [counsel] of his duties but, to the contrary, gave [him] [a specific duty].... [T]he Court has come to the conclusion that [counsel's] involvement in this case was necessary and that he did so as an advocate for the best interest of the children.

In light of the family court's requirement that the guardian's counsel participate in the case and the final order stating his involvement was necessary, we conclude the court did not abuse its discretion in making an award.

A guardian ad litem is entitled to compensation for his services and reimbursement for necessary expenses. South Carolina Dep't of Soc. Servs. v. Hyatt, 277 S.C 152, 154, 283 S.E.2d 445, 446 (1981). In fixing the amount of compensation to be paid to a guardian ad litem, a court should consider the character of the litigation, the issues involved, the services performed, the care and diligence exhibited, and the results achieved.” Id. This court will not disturb the amount of a fee award to a guardian ad litem absent an abuse of discretion. Nash v. Byrd, 298 S.C. 530, 537, 381 S.E.2d 913, 917 (Ct. App. 1989). Likewise, we recognize that an award for attorney's fees is left to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).

In a temporary order, the family court required Small, Piper, and Weaver to each contribute $700 toward the guardian's anticipated fees and costs. The $2, 100 was paid into the trust account of Weaver's attorney who was to pay the guardian's bills unless one of the parties objected. The guardian was required to provide copies of her monthly billing statements to each of the parties.

Weaver's attorney paid the guardian's first invoice in full. There is no evidence in the record to indicate Small objected to this initial payment. The guardian submitted three more bills that remained unpaid at the time of the final order.

In its final order, the family court awarded the guardian additional fees and costs of $2, 395.30 based on the last three unpaid invoices, and attorney's fees of $6, 348.40. The court also approved the previously paid invoice of $1, 531.20 as billed. ^[3] Small was required to pay one-half of the additional fee awarded to the guardian and one-half of the guardian's attorney's fees, for a total of $4, 371.85.

In making the fee award to the guardian, the court reduced her hourly rate by $10 from the amount requested. The court made the reduction after considering the absence of overhead and other business expenses, as well as the intensity and urgency of the work required. The court stated it reviewed the entire file as well as the guardian's bills and concluded all of the billed time was compensable and was necessarily spent fulfilling duties and acting in the best interest of the children. The family court noted the guardian worked with speed and diligence and had, through her efforts to promptly secure court-ordered psychological evaluations, moved the case toward a timely resolution. Finally, the court expressly noted it had taken into consideration to a large extent the financial condition of the parties... and the other fees and expenses each must necessarily pay as a result of the litigation.” The family court relied upon the detailed invoices submitted by the guardian and considered all relevant factors when making the compensation award. Accordingly, we find no abuse of discretion in the amount of the fee awarded.

The court also found the guardian would not have been able to effectively fulfill her duty as an advocate for the best interest of the children without the assistance of counsel. However, in making the award of attorney's fees, the court reduced counsel's hourly rate substantially, from $150 to $90 per hour based on: 1) the...