Rel: November 8, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2024-2025 _________________________
CL-2023-0570 _________________________
Drew S. Deaton
v.
Leanne W. Deaton
Appeal from Jefferson Circuit Court (DR-18-901324.03)
PER CURIAM.
Drew S. Deaton ("the father") and Leanne W. Deaton ("the mother")
were divorced by a 2019 judgment entered by the Jefferson Circuit Court
("the trial court"). The trial court modified the original divorce judgment CL-2023-0570
in a judgment entered on May 12, 2021; that judgment incorporated an
agreement of the parties. Ten days later, on May 22, 2021, the father
filed a petition in the trial court that, among other things, sought to have
the mother held in contempt for violations of the divorce judgment, as
modified, and sought clarification and enforcement of the visitation
provisions of the divorce judgment, as modified. 1
In November 2021, the trial court, acting sua sponte, appointed
Clotele H. Brantley as guardian ad litem for the parties' children. In the
order appointing Brantley, the trial court ordered both the father and the
mother to pay into the office of the trial-court clerk the sum of $2,500 as
a "retainer for the fees of the guardian ad litem." In various motions filed
in response to the sua sponte appointment of Brantley, the father
indicated that he had no objection to the appointment of a guardian ad
litem for the children, but he requested that the trial court appoint
someone other than Brantley. The trial court denied that request.
In May 2022, the mother filed a counterclaim for modification, in
which she sought a modification of the custody, visitation, and child-
support provisions of the divorce judgment, as modified. On June 30,
1The father amended his petition at least three times.
2 CL-2023-0570
2022, the trial court entered an order dismissing, with prejudice, the
father's petition, as finally amended, as a sanction for his failure to
comply with numerous discovery requests propounded by the mother.
The action proceeded on the mother's counterclaim.
In December 2022, Brantley filed a motion requesting that she be
"[a]warded additional [a]ttorney [f]ees [because her] time in this case has
exceeded the initial deposit of $5000.00."2 Brantley did not provide an
itemization of the time that she had expended on the action. The trial
court granted Brantley's motion on December 26, 2022, requiring "each
party [to] pay an additional retainer to [Brantley] of $2,500.00 (Two-
Thousand Five Hundred Dollars and no/100)." On January 23, 2023, the
father filed a motion requesting that Brantley provide a detailed bill to
support her request for additional interim guardian ad litem fees and
requesting an evidentiary hearing on the reasonableness of those fees.
In April 2023, the father again filed a motion seeking a detailed bill
or accounting from Brantley to support her request for additional interim
guardian ad litem fees and requesting an evidentiary hearing on the
2The trial court had ordered the disbursement of the original $5,000
paid into the clerk's office to Brantley. 3 CL-2023-0570
reasonableness of the interim guardian ad litem fees. The trial court
denied the request for an evidentiary hearing "at this time" but
instructed Brantley to provide detailed billing to support her request for
additional interim guardian ad litem fees. Before Brantley filed an
interim billing statement, the father filed what he entitled a
"Supplemental Motion to Disqualify the Guardian Ad Litem Based on
Formal Alabama State Bar Opinion," to which Brantley responded. As
instructed by the trial court, Brantley provided an interim billing
statement in which she indicated that the current balance of the interim
guardian ad litem fees, after deduction of the two $5,000 payments she
had apparently already received from the parties, was $18,350. Brantley
also filed a motion seeking additional fees with which to pay a contract
paralegal to assist her in preparing for trial; the trial court denied that
motion.
The father then filed an objection to Brantley's interim guardian ad
litem fees. In that objection, the father requested an evidentiary hearing
on the reasonableness of Brantley's interim guardian ad litem fees. He
also again requested that the trial court remove Brantley as the
children's guardian ad litem. On May 6, 2023, the trial court "overruled"
4 CL-2023-0570
the father's objection to Brantley's interim guardian ad litem fees and
denied the father's request for an evidentiary hearing "as it would
increase the already documented fees of [Brantley] and be an
unreasonable use of court time and resources." The trial court also
specifically found that Brantley's interim guardian ad litem fees were
reasonable, noting that the modification action had been pending for over
two years, during which Brantley had attended numerous court hearings,
had responded to various motions, and had spoken with the children, the
parties, the attorneys, and various professionals involved with the
children and the parties. The father sought reconsideration of the denial
of his request for a hearing, which the trial court denied.
On May 24, 2023, Brantley filed a motion seeking to be paid the
unpaid $18,350 in interim guardian ad litem fees. In response, the father
filed a renewed motion to remove Brantley as the children's guardian ad
litem; in the alternative, he requested that the trial court clarify or limit
Brantley's role. He also filed a motion requesting that Brantley be
required to produce the 231 e-mails that Brantley had itemized in her
interim billing statement, to which Brantley responded by requesting
5 CL-2023-0570
that, if the trial court were inclined to grant the father's request, it
exclude the e-mails that were "work product" or were not billed.
On June 5, 2023, the trial court granted Brantley's motion for
payment. In its order, the trial court ordered the father and the mother
to pay the $18,350 balance due on the interim billing statement upon
receipt of a statement from Brantley and before the trial of the
modification action, which was scheduled for June 7, 2023. In a separate
order also entered on June 5, 2023, the trial court denied the father's
motion to remove Brantley, his request for clarification and limitation of
Brantley's role as guardian ad litem, and his motion for the production of
the e-mails.
The father then filed a "brief" on the imposition of the interim
guardian ad litem fees. In that "brief" the father again requested a
hearing on the reasonableness of Brantley's interim guardian ad litem
fees. The trial court set an "evidentiary hearing" on the father's "brief"
for July 21, 2023. On July 20, 2023, Brantley filed a motion to show
cause, arguing that the father should be held in contempt for failing to
pay his half of the $18,350 in interim guardian ad litem fees. At the July
21, 2023, hearing, the trial court explained that the hearing was not
6 CL-2023-0570
intended to be a hearing on the reasonableness of the interim guardian
ad litem fees and was instead a hearing to determine whether a hearing
on the reasonableness of the interim guardian ad litem fees was
necessary. Thus, the trial court did not allow the father to call Brantley
as a witness and took no evidence relating to the reasonableness of
Brantley's interim guardian ad litem fees at the "evidentiary hearing."
On July 29, 2023, the trial court, relying solely on Brantley's
interim billing statement, entered an order stating that the interim
guardian ad litem fees were "acceptable" and ordering the father to pay
his one-half of the outstanding interim guardian ad litem fees by Monday,
August 31, 2023. Pursuant to Rule 60(a), Ala. R. Civ. P., the trial court
amended the July 29, 2023, order on August 1, 2023, to correct a clerical
error. The August 1, 2023, order clarified that the father was required to
pay the outstanding interim guardian ad litem fees by Monday, July 31,
2023, but extended the time for payment until Wednesday, August 2,
2023, because of the typographical error in the July 29, 2023, order. The
trial court again amended its order on August 6, 2023, stating that, if the
interim guardian ad litem fees were not paid by August 14, 2023, the trial
court would issue a separate order regarding a hearing on Brantley's
7 CL-2023-0570
contempt motion. On August 14, 2023, the father filed a notice of appeal
from the trial court's order requiring him to pay Brantley one-half of
$18,350, or $9,175, in interim guardian ad litem fees.
As a preliminary matter, we must address the motions to dismiss
the father's appeal filed by the mother and by Brantley. They both
contend that, because the trial on the modification action has not
concluded and because the trial court has not yet entered a judgment
resolving the modification action, no final judgment exists from which
the father's appeal can lie. See, e.g., Warren v. Warren, 94 So. 3d 392,
396 (Ala. Civ. App. 2012) (dismissing an appeal because the challenged
order did not conclusively determine all pending claims and issues
presented by the parties). Although we agree that no final judgment
relating to the modification action exists in the present case, we are not
inclined to dismiss the father's appeal.
The father argues that the order awarding guardian ad litem fees
is itself a final judgment capable of supporting an appeal. See Roberts v.
Roberts, 189 So. 3d 79, 81 (Ala. Civ. App. 2015) (treating a petition for
the writ of mandamus seeking review of an order requiring a mother to
pay $2,500 as a guardian ad litem fee as an appeal). As this court stated
8 CL-2023-0570
in Roberts, an award of guardian ad litem fees is itself a final judgment
because " '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.' " 189 So. 3d at 81 (quoting
Niezer v. SouthTrust Bank, 887 So. 2d 919, 923 (Ala. Civ. App. 2004));
see also Kimbrough v. Dickinson, 251 Ala. 677, 681, 39 So. 2d 241, 244
(1949) (considering an appeal from an order denying a request for an
attorney's fee despite the fact that the probate court had not yet entered
a final settlement of the estate). However, there is a significant
distinction between the guardian ad litem fees at issue in Roberts and
those at issue in the present case. The guardian ad litem fees at issue in
Roberts were not interim fees and were instead the total amount of the
guardian ad litem fees assessed in a final judgment after the conclusion
of the underlying divorce action. In contrast, in the present case, the
guardian ad litem fees are merely interim fees, and the trial court's July
29, 2023, order is not a final judgment on the total amount of guardian
ad litem fees owed to Brantley.
We are aware that our supreme court, in Kelley v. Kelley, 271 Ala.
683, 685, 127 So. 2d 616, 617 (1961), entertained an appeal from a
9 CL-2023-0570
judgment ordering a solicitor's fee pendente lite and stating that the
order granting that fee "is of such final force and effect as to support an
appeal under Code 1940, Tit. 7, § 754," the predecessor statute to Ala.
Code 1975, § 12-22-2, because "[t]he petition [seeking a solicitor's fee
pendente lite] presented matters of a distinct and independent character
on which a final decision was made." Notably, in Kelley, our supreme
court also stated that "it has been held also that mandamus is
appropriate 'as an emergency appeal' for the purpose of reviewing the
trial court's action in denying … solicitors' fees pendente lite." Id.
Indeed, historically, a petition for the writ of mandamus has been held to
be the proper remedy for seeking review of an award or denial of a
solicitor's fee pending resolution of a divorce action. See Ex parte
Eubanks, 206 Ala. 8, 9, 89 So. 656, 656 (1921); see also Ex parte Tucker,
254 Ala. 222, 223, 48 So. 2d 24, 24 (1950); Ex parte Watson, 220 Ala. 409,
410, 125 So. 669, 669 (1930); Ex parte Wood, 215 Ala. 280, 281, 110 So.
409, 410 (1926); and Ex parte Dunlap, 209 Ala. 453, 455, 96 So. 441, 442
(1923). Our supreme court also considered the award of a "pendente lite"
attorney fee via a mandamus petition in Ex parte City of Birmingham,
757 So. 2d 389, 391 (Ala. 1999). Thus, we are inclined to consider Kelley
10 CL-2023-0570
to be an aberration in the law, and to conclude that mandamus review,
rather than review on appeal, is available regarding order requiring a
party to pay interim guardian ad litem fees. Therefore, instead of
dismissing the father's appeal, we exercise this court's discretion to treat
the notice of appeal filed by the father as a petition for the writ of
mandamus. See Ex parte Jenkins, 318 So. 3d 515, 518 (Ala. Civ. App.
2020) (treating an appeal from an interlocutory order as a petition for the
writ of mandamus when the appellant argued that the order from which
he sought review was void).
Turning now to the merits of the argument raised by the father, we
agree with the father that he has a right to contest Brantley's interim
guardian ad litem fees in an evidentiary hearing held for that purpose.
We recently stated in Morgan v. Morgan, 322 So. 3d 531, 536-37 (Ala.
Civ. App. 2020), that our supreme court explained in Ex parte R.D.N.,
918 So. 2d 100, 105 (Ala. 2005) (quoting Lolley v. Citizens Bank, 494 So.
2d 19, 21 (Ala. 1986)), that a "parent who might be assessed a guardian
ad litem fee is 'entitled to an evidentiary hearing for the purpose of
determining a reasonable fee for the guardian ad litem and an order
setting forth "with some particularity the findings from the evidence
11 CL-2023-0570
adduced." ' In compliance with the law as stated in Morgan, the trial
court must hold an evidentiary hearing at which the father can challenge
the itemization of Brantley's interim guardian ad litem fees. Accordingly,
we grant the father's petition and direct the trial court to vacate the July
29, 2023, order requiring the father to pay Brantley $9,175 in interim
guardian ad litem fees and to hold an evidentiary hearing on the
reasonableness of Brantley's interim guardian ad litem fees.
PETITION GRANTED; WRIT ISSUED.
Moore, P.J., and Edwards, J., concur.
Lewis, J., concurs in the result, without opinion.
Hanson, J., dissents, with opinion.
Fridy, J., recuses himself.
12 CL-2023-0570
HANSON, Judge, dissenting.
I respectfully dissent from the decision to conduct a mandamus
review of the July 29, 2023, order awarding an interim guardian ad litem
fee and to grant mandamus relief to Drew S. Deaton ("the father").
In a custody-modification action stemming from a judgment
divorcing the father and Leanne W. Deaton ("the mother"), the Jefferson
Circuit Court ("the trial court") appointed Clotele H. Brantley as
guardian ad litem for the parties' children. After Brantley's fee had
exceeded the initially ordered retainer and, yet, the litigation had not
concluded, Brantley sought payment for an additional interim fee.
Although she did not submit an itemized statement with her initial
request for an interim fee award, Brantley subsequently submitted an
itemized statement of her fee to the trial court and the parties. The
father, among other things, challenged the reasonableness of Brantley's
submitted fee and requested a hearing on the matter. Ultimately, the
trial court denied the father's request for a hearing, found that Brantley's
interim guardian ad litem fee was "acceptable," and ordered the father to
pay one-half of the fee. The father appealed the decision.
13 CL-2023-0570
The main opinion, recognizing that the trial court's order awarding
payment of an interim guardian ad litem fee is an interlocutory, nonfinal,
order, see Turner v. Turner, 210 So. 3d 603, 611 (Ala. Civ. App. 2016);
and Stone v. Haley, 812 So. 2d 1245, 1246 (Ala. Civ. App. 2001)
(recognizing that only a final judgment will support an appeal), has
exercised discretion and has conducted a mandamus review. See Ex parte
Landry, 117 So. 3d 714, 718 (Ala. Civ. App. 2013)("Upon a determination
that a judgment is not final, this court has discretion to treat an appeal
as a petition for a writ of mandamus."); and Norman v. Norman, 984 So.
2d 427, 429 (Ala. Civ. App. 2007)("The proper means of seeking appellate
review of an interlocutory order in this court is to petition for a writ of
mandamus.").
" '[M]andamus[, however,] is an extraordinary writ, and a
mandamus petition is not a proper vehicle for review of every type of
interlocutory order.' " J.R. v. J.H.R., 377 So. 3d 550, 551 (Ala. Civ. App.
2022) (citation omitted). In Ex parte Spears, 621 So. 2d 1255, 1258 (Ala.
1993), abrogated on other grounds by Ex parte Ziglar, 669 So. 2d 133
(Ala. 1995), our supreme court explained:
"The tendency of this Court in the past has been to enlarge the scope of the extraordinary writ of mandamus by
14 CL-2023-0570
recognizing certain exceptions to the general rule that orders ultimately reviewable on appeal from a final judgment are not subject to mandamus review. However, we should not continue to decide cases in a piecemeal fashion. For this reason, mandamus review will generally be restricted in the future to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment."
In Ex parte U.S. Bank National Ass'n, 148 So. 3d 1060, 1064-65
(Ala. 2014), our supreme court observed that
"the use of mandamus review has essentially been limited to well recognized situations where there is a clear legal right in the petitioner to the order sought; an imperative duty upon the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly invoked jurisdiction of the court. Those well recognized situations include making sure that an action is brought in the correct court (e.g., subject-matter jurisdiction and venue) and by the correct parties (e.g., personal jurisdiction and immunity), reviewing limited discovery rulings (e.g., patently irrelevant discovery), and reviewing erroneous decisions by a trial court where there is a compelling reason not to wait for an appeal (e.g., abatement)."
Notably, our supreme court did not include review of a trial court's award
of an interim attorney fee in the list.
To bolster its conclusion that mandamus review of the trial court's
award of an interim guardian ad litem fee is proper, the main opinion
relies on decisions of our supreme court issued in the first half of the 20th
15 CL-2023-0570
century holding that a petition for a writ of mandamus is the proper
vehicle to review a trial court's decision regarding an attorney-fee award
in a pending divorce action. Ex parte Eubanks, 206 Ala. 8, 9, 89 So. 656,
656 (1921); see also Ex parte Tucker, 254 Ala. 222, 223, 48 So. 2d 24, 24
(1950); Ex parte Watson, 220 Ala. 409, 410, 125 So. 669, 669 (1930); Ex
parte Wood, 215 Ala. 280, 281, 110 So. 409, 410 (1926); and Ex parte
Dunlap, 209 Ala. 453, 455, 96 So. 441, 442 (1923). In Ex parte Watson,
our supreme court explained the compelling reason supporting
mandamus review of a trial court's interlocutory order regarding an
attorney fee in a pending divorce action, stating:
"It has also been long the practice to allow solicitor's fees to the wife as an aid in the maintenance of her suit; such allowance being regarded as somewhat in the nature of temporary alimony. McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602 [(1925)]; Johnson v. Johnson, 195 Ala. 641, 71 So. 415 [(1916)]; Rast v. Rast, 113 Ala. 319, 21 So. 34 [(1896)]."
220 Ala. at 410, 125 So. at 669. Thus, our supreme court held that a
wife's financial circumstances during that historical period constituted
a compelling reason for mandamus review of a trial court's decision
regarding an interim attorney-fee award.
The main opinion also cites Ex parte City of Birmingham, 757 So.
2d 389, 392 (Ala. 1999), in which our supreme court explained the
16 CL-2023-0570
compelling reason for considering, via a mandamus petition, a "pendente
lite" attorney-fee award, stating:
"The residents initiated this litigation in 1993, and this case has continued for over six years and has involved three prior appellate proceedings. Ex parte Horn, [718 So. 2d 694 (Ala. 1998)]; Horn v. City of Birmingham, 718 So. 2d 691 (Ala. Civ. App. 1997); Horn v. City of Birmingham, 648 So. 2d 607 (Ala. Civ. App. 1994). Additionally, one of the residents intervened in a lawsuit between the City and Browning Ferris Industries of Alabama, Inc. (BFI), one of the defendants below, to protect the judgment in this litigation. Ex parte Horn, 718 So. 2d at 700. Moreover, in this litigation the residents sued to require that the City follow its own regulations and thereby to ensure that the City comply with constitutional due-process requirements. Considering the protracted nature of this constitutional litigation and our previous decision in Ex parte Horn that the residents are entitled to an attorney fee, we conclude that the City has not shown in this case that the trial court abused its discretion in awarding the $250,000 interim attorney fee, which is to be deducted from the total attorney fee award."
I do not find a comparable compelling reason to warrant
mandamus review of a trial court's award of an interim guardian ad
litem fee. A trial court's decision to grant or deny an interim guardian
ad litem fee in a custody-modification action simply does not have the
same gravity. First, the function of a guardian ad litem in a domestic-
relations action is vastly different from the function of a party's attorney
in a domestic-relations action or an action raising constitutional rights.
17 CL-2023-0570
A guardian ad litem is appointed by a trial court "to zealously advocate
for the best interests of the child[ren]." Jones v. McCoy, 150 So. 3d 1074,
1080 (Ala. Civ. App. 2013). A guardian ad litem is not a party in the
custody action, see Jones, supra, does not represent a party in the action,
and can be relieved of the appointment by only the trial court. J.-M.S.
v. K.B.J., [Ms. CL-2022-1261, Apr. 19, 2024] ___ So. 3d ___ (Ala. Civ.
App. 2024). Possible roles of a guardian ad litem in a custody action
include acting as counsel for the children, an investigator, a fact witness,
and/or an expert witness. Rogers v. Rogers, 307 So. 3d 578, 589 (Ala.
Civ. App. 2019). Accordingly, unlike a party's attorney who plays an
integral role in a party's ability to maintain an action, a guardian ad
litem serves at the direction of the trial court and is not a party's "aid in
the maintenance of [the] suit." Ex parte Watson, 220 Ala. at 410, 125 So.
at 669 (emphasis added). Consequently, I do not find the compelling
reason presented in the cases cited by the main opinion to be applicable
in this case.
Regarding the determination of a guardian ad litem's fee, I observe
that " 'a trial court has the authority … to order a reasonable fee to be
paid for the guardian ad litem's services. See § 26-2A-52, Ala. Code 1975,
18 CL-2023-0570
and Rule 17, Ala. R. Civ. P.' Roberts v. Roberts, 189 So. 3d 79, 81 (Ala.
Civ. App. 2015)." Thomson v. Shepard, 225 So. 3d 627, 633 (Ala. Civ.
App. 2016). In Ex parte Shinaberry, 326 So. 3d 1037, 1039-40 (Ala. 2020),
our supreme court discussed compensation for a guardian ad litem,
stating:
"Rule 17(d), Ala. R. Civ. P., governs the use and compensation of guardians ad litem in civil cases and requires the assessment of a reasonable fee for the legal services rendered by a guardian ad litem. The rule, in pertinent part, provides:
" '(d) ... 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 matter of the guardian ad litem's fee is within the discretion of the trial court, subject to correction only for abuse of discretion.' Englund v. First Nat'l Bank of Birmingham, 381 So. 2d 8, 12 (Ala. 1980)(citing Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 362, 131 So. 2d 182, 186 (1961)).
19 CL-2023-0570
"Although Rule 17(d) does not provide guidance on how a guardian ad litem's fee is to be established, this Court has applied the criteria that a court might consider when determining the reasonableness of an attorney fee:
" ' "(1) [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances." '
"[Pharmacia Corp. v.] McGowan, 915 So. 2d [549,] 554-55 [(Ala. 2004)](quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).
" 'These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004), citing Graddick v. First Farmers & Merchants Nat'l Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984).'
"McGowan, 915 So. 2d at 553."
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), this court applied
20 CL-2023-0570
the attorney-fee factors set forth in Van Schaack v. AmSouth Bank, N.A.,
530 So. 2d 740, 749 (Ala. 1988), to address the reasonableness of the
awarded guardian ad litem fee.
With regard to the application of the factors set forth in Van
Schaack to the determination of the reasonableness of a guardian ad
litem fee, I note that a trial court, when appointing a guardian ad litem,
is presumed to be aware of the nature and value of a guardian ad litem's
services, the fee customarily charged by a guardian ad litem in that
circuit in similar cases, the guardian ad litem's skills and reputation,
and the gravity of the services to be performed. From a guardian ad
litem's filings, participation in hearings, and submitted reports, a trial
court learns the value of the guardian ad litem's performed services. An
itemized statement submitted by a guardian ad litem provides insight
into the number of hours the guardian ad litem has worked, the tasks
performed by the guardian ad litem, the guardian ad litem's incurred
expenses, and whether the duties of the guardian ad litem have
precluded other employment.
Considering a trial court's knowledge, I am hesitant to read Ex
parte R.D.N., 918 So. 2d 100, 105 (Ala. 2005); and Morgan v. Morgan, 322
21 CL-2023-0570
So. 3d 531, 536-37 (Ala. Civ. App. 2020), as broadly as the main opinion
does so as to require the trial court to conduct an evidentiary hearing
every time a party challenges the reasonableness of a guardian ad litem
fee. In Ex parte R.D.N., a guardian ad litem submitted her fee request
ex parte after the close of the evidence. The parties were not given an
opportunity to review the requested fee and object to its reasonableness.
Additionally, the record did not include a copy of the submitted fee.
Because of the ex parte submission of the guardian ad litem's fee request
and the lack of evidence in the record supporting the trial court's
determination, our supreme court could not conduct a meaningful
appellate review of the trial court's award and therefore, reversed the
judgment in that regard and remanded the case for the trial court to
conduct an evidentiary hearing that allowed the parties to challenge the
determination and to create a record for appellate review.
In support of its holding in Ex parte R.D.N., our supreme court cited
Van Schaack, supra. The record in Van Schaack did not contain any
evidence regarding the services performed by that guardian ad litem,
other than his presence at one hearing at which he examined a witness.
Additionally, that trial court's final judgment awarding a guardian ad
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litem fee did not "refer to the nature or character of the services
performed by the guardian ad litem." 530 So. 2d at 750. Our supreme
court vacated that trial court's judgment and ordered that trial court to
conduct an evidentiary hearing to determine the reasonableness of the
fee and to enter an order setting forth its findings based on the evidence.
In both Ex parte R.D.N. and Van Schaack, the record on appeal contained
no evidence or findings by the trial court to explain the services
performed by the guardian ad litem, and, consequently, it was impossible
for our supreme court to conduct a meaningful review of the trial court's
award.
In Morgan, a guardian ad litem, like the guardian ad litem in Ex
parte R.D.N., submitted her fee request after the conclusion of the trial,
and the parties were not given an opportunity to contest its
reasonableness. The wife, in that case however, challenged the
reasonableness of the awarded guardian ad litem fee in her postjudgment
motion, arguing that the trial court had erred by denying her an
opportunity to object to the reasonableness of the fee. The trial court
denied the wife's postjudgment motion without conducting a hearing.
The wife appealed, and, on appeal, the husband agreed with the wife that
23 CL-2023-0570
the trial court had erred by not conducting a postjudgment hearing to
allow the wife an opportunity to object to the guardian ad litem's fee. No
conflict existed on appeal between the positions of the husband and the
wife on that issue; we reversed the trial court's judgment in that regard
and remanded the case for the trial court to conduct a postjudgment
hearing to allow the wife to challenge the reasonableness of the guardian
ad litem's fee.
Each of the guardian ad litems in Van Schaack, Ex parte R.D.N.,
and Morgan submitted a fee request to the trial court, but not to the
parties, and the parties were not given an opportunity to challenge the
propriety of the awarded fee. In Van Schaack and Ex parte R.D.N., the
trial court's orders did not provide findings in support of the award, and
the records on appeal did not contain evidence of the services provided by
the guardian ad litem to allow an appellate court to conduct a meaningful
review. In Morgan, the husband agreed with the wife's position
regarding the trial court's award of a guardian ad litem fee. I read these
cases to require a guardian ad litem to submit his or her requested fee to
both the trial court and the parties; to require the trial court to entertain
an objection by a party to the reasonableness of the requested fee; to
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require the trial court, if the party's objection has merit, to conduct a
hearing; and to require the trial court to create a record that explains its
determination. I believe that an itemized statement of a guardian ad
litem's fee, a trial court's knowledge of the services provided by a
guardian ad litem, a record that reflects those services, and an order that
provides the trial court's findings regarding the reasonableness of the fee
can adequately address a party's objection to an awarded guardian ad
litem fee and allow a meaningful appellate review. In other words, in my
opinion, these cases do not mandate that an evidentiary hearing must be
conducted every time a party objects to the reasonableness of a guardian
ad litem's fee; rather, these cases mandate that the record -- which may
include, if needed, an evidentiary hearing -- disclose the evidence and
findings upon which the trial court's determination rests and from which
an appellate court may conduct a meaningful review to determine
whether the trial court properly exercised its discretion.
In this case, Brantley submitted an itemized statement in support
of her requested interim guardian ad litem fee to the trial court and the
parties. The record on appeal, which contains 29 volumes, reflects that
Brantley attended numerous hearings, several days of trial, and
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communicated extensively with the parties and the children. Nothing
in the record indicates that Brantley and the trial court have engaged in
ex parte communication. Unequivocally, the record reflects Brantley's
involvement in the case and the conduct of the parties toward Brantley
and the services she has provided. The trial court explained on the
record its findings supporting its conclusion that Brantley's requested
interim guardian ad litem fee is reasonable. Therefore, I cannot agree
that the trial court's failure to conduct a hearing on the reasonableness
of Brantley's interim guardian ad litem fee constitutes a compelling
reason for mandamus review. Indeed, the main opinion's holding
ordering the trial court to conduct a hearing delays the trial court's
determination of the best interests of the children, places Brantley in an
adversarial position with at least one party before the conclusion of the
litigation, increases the overall litigation expenses for the parties, and
creates piecemeal review of Brantley's fee. Because this case does not
present a compelling reason to support mandamus review of the award
of an interim guardian ad litem fee to Brantley, I dissent from the
decision to expand mandamus review to include such decisions.
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Moreover, even if I am incorrect and mandamus review is proper,
" '[a] petition for a writ of mandamus may not be granted where the
petitioner has an adequate remedy by appeal.' Ex parte Amerigas, 855
So. 2d [544, ] 547 [(Ala. Civ. App. 2003)]." Ex parte Gallant, 261 So. 3d
350, 354 (Ala. Civ. App. 2017). Turner provides that review of an
interlocutory order awarding an interim guardian ad litem fee is an order
that can be reviewed on appeal. Turner, 210 So. 3d at 611. Because the
father has an adequate remedy by appeal, I would deny the relief.
For the foregoing reasons, I respectfully dissent from the decision
to exercise mandamus review, to grant the petition, and to issue a writ
of mandamus.