R.P. v. L.S.

926 N.E.2d 20, 2010 Ind. LEXIS 308
CourtIndiana Supreme Court
DecidedApril 30, 2010
DocketNo. 45S03-0904-JV-133
StatusPublished
Cited by4 cases

This text of 926 N.E.2d 20 (R.P. v. L.S.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R.P. v. L.S., 926 N.E.2d 20, 2010 Ind. LEXIS 308 (Ind. 2010).

Opinions

RUCKER, Justice.

In this opinion we conclude that where the parties in a domestic relations dispute sign a written agreement retaining the services of a guardian ad litem, the trial court, when awarding fees and expenses incurred by the guardian ad litem, is bound to enforce the terms of the agreement unless it is contrary to public policy.

Facts and Procedural History

This appeal stems from a long-running paternity and custody dispute between RP. ("Father") and LB. ("Mother") regarding their daughter, N.L.P. ("Child") who was born out of wedlock in December 1999. By agreement of the parties and pursuant to court order, Father's paternity was established in February 2001. Mother was granted physical custody of Child and Father was granted temporary supervised visitation, ordered to pay child support, and ordered to provide Child with medical insurance. Within months thereafter conflicts arose between the parties regarding visitation. After Father filed his second petition for contempt citation and rule to show cause complaining that Mother was thwarting his efforts at visitation, the parties-both represented by separate counsel-filed a joint petition for the appointment of a guardian ad litem. Among other things the petition declared, "Itlhe parties are continuing to encounter problems with respect to their minor child, [N.L.P.], including issues regarding visitation and parenting. The parties believe that a Guardian Ad Litem will be well suited to interview the parties and make recommendations that would resolve the existing problems." Appellant's App. at 72. Mother and Father specifically requested the court to appoint Attorney Jill S. Swope. Id. And the trial court granted the motion. Appellant's App. at 76. Upon the appointment Mother and Father executed separate but identically worded letters of agreement captioned "Engagement of Services-Guardian Ad Litem." Appellant's App. at 278-79, 280-81. The agreement set forth the terms of Swope's services, her hourly billing rate of $150.00, that the parties would be billed by the quarter-hour, and the parties would be billed for various expenses including long-distance telephone calls, postage, fax charges, photocopies, and travel expenses. The agreement was ambiguous on whether each party would be responsible for one-half of the fees and expenses or whether the parties would be held jointly responsi[22]*22ble for the total amount billed. In any event, at some point thereafter Father filed a petition to change custody.

Swope remained involved in this paternity matter from February 2004 through March 2008, when she requested to be released from service. See Ind.Code § 31-32-3-8 ("A guardian ad litem or court appointed special advocate serves until the juvenile court enters an order for discharge...."). During this four-year period, Swope performed a variety of tasks. As the Court of Appeals recounted:

[Swope] prepared and submitted two court-ordered GAL reports; made multiple home visits to both parents' households; supervised parenting time on more than one occasion; supervised parenting exchanges under order of the court; made a visit to N.L.P.'s school; reviewed parenting time records and video/audio recordings; and had conversations with therapists, school officials, teachers, law enforcement personnel, Department of Child Services personnel, staff at the supervised parenting time facility, the custodial evaluator, both parents, N.L.P., and other family members. Swope also reviewed criminal investigation records, medical records, school records, therapy records, and other documents provided by the parents. Additionally, as part of her GAL responsibilities, she prepared and submitted several pleadings on behalf of NLP., which addressed a lack of contact between N.L.P. and Father. Further, she prepared for and attended hearings on multiple occasions including the six day hearing in 2007 on all pending matters, in which she participated through testi-rhony as well as cross-examination of witnesses.

In re N.L.P., 898 N.E.2d 403, 405-06 (Ind.Ct.App.2008). The quality of Swope's work has never been in dispute.

At the trial court's direction, and following a six-day hearing on all pending matters in the parties' dispute, Swope submitted her request for guardian ad litem fees. The request included billing statements and time records which established that as of October 23, 2007, the sum of incurred fees and expenses totaled $34,800.00, for which she had received payment from Father in the amount of $11,480.80 and from Mother in the amount of $2,678.32. Appellant's App. at 294-95.

The trial court issued its order on December 27, 2007. Regarding the substantive dispute between the parties-which is not at issue in this appeal-the trial court granted Father's petition to change custody, ordered Mother's visitation to be limited and supervised, and modified the parties' child support obligations. With respect to Swope's request for fees the trial court determined that "although the GAL has conducted a thorough investigation, the GAL fees are not reasonable." Appellant's App. at 18. The trial court's determination was based on the following findings: (1) Swope charged by the quarter-hour, rather than tenths per hour, (2) charges for long distance calls, copying and faxing should have been included as overhead in the total hourly rate, (8) the income of the parties and their ability to pay, and (4) some of the services Swope provided duplicated the services provided by the court appointed custody evaluator. Appellant's App. at 18-19. Declaring that both Mother and Father are responsible for paying one-half of the fees, the trial court reduced the guardian ad litem fees to $20,000.00. Swope filed a motion to correct error, which the trial court denied after a hearing. However, in doing so the court acknowledged error in basing its unreasonableness finding on Swope's billing by the quarter-hour. Appellant's App. at 30.

[23]*23Swope appealed. Neither Mother nor Father filed a brief in response. Noting that the reasonableness of the amount of guardian ad litem fees in paternity cases is a matter of first impression, the Court of Appeals vacated in part the trial court's order and remanded the ease because the trial court did not adequately support its determination that the $20,000.00 fee ordered by the trial court was reasonable. However, the Court of Appeals determined sua sponte that Swope's fees were in fact unreasonable because Swope was acting as both a guardian ad litem and an attorney and thus "should have billed her duties separately and differentiated between when she was performing duties as the GAL and when she was performing legal work as an attorney." In re N.L.P., 898 N.E.2d at 408. Having previously granted transfer thereby vacating the opinion of the Court of Appeals, we now reverse the judgment of the trial court and remand this cause for further proceedings.

Discussion

In a custody dispute underlying a paternity action, the attorneys representing each of the competing adults must effectively represent the interests of their clients. However, the interests of the adults are not always consistent with the best interests of the child. In re Paternity of H.J.F., 634 N.E.2d 551, 553 (Ind.Ct.App.1994).

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926 N.E.2d 20, 2010 Ind. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rp-v-ls-ind-2010.