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Gross v. Jackson County

Court of Appeals of Missouri, Western District, First Division

January 9, 2018

JULIANNE M. GROSS, Respondent,

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jeffrey Keal, Judge

          Before Cynthia L. Martin, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges


          Karen King Mitchell, Judge

         Jackson County (County) appeals from a judgment assessing attorney fees, incurred by two guardians ad litem (GAL) in a dissolution action between Julianne (Wife) and Nicholas (Husband) Gross, against public funds. County argues that GAL fees cannot be assessed against public funds for a GAL appointment pursuant to Rule 52.02(k) and that the court improperly determined that Husband was indigent. We reverse and remand.


         Wife and Husband were married on May 19, 2006, and three children were born of the marriage. On February 6, 2015, Wife filed a petition for dissolution. On Wife's motion, the court appointed GAL Abraham Kuhl to represent the minor children during the proceedings. The court ordered that both Wife and Husband contribute $1, 000 each as security to be applied to GAL Kuhl's fees in the case. Wife complied with the order, but Husband did not. Husband filed a motion for leave to join Husband's parents (Grandparents) as third-party respondents because the primary asset owned by Husband and Wife was the marital home in which Grandparents held a joint ownership interest. The court granted Husband's motion, joined Grandparents as parties, and ordered Husband to file an amended answer reflecting the additional parties.

         Though Husband initially participated in the litigation, he eventually ceased his participation, refusing to respond to discovery and other orders of the court. Husband's counsel advised the court that Husband had been diagnosed with delusional disorder and refused to further participate "due to his religious belief regarding divorce." Because Husband refused to communicate with his counsel, Husband's counsel requested the appointment of a GAL under Rule 52.02(k)[1] for Husband and requested to withdraw her representation of him. The court allowed Husband's counsel to withdraw and granted her request to appoint a GAL on Husband's behalf, under the authority of Rule 52.02(k), after finding that, "[b]y reason of mental infirmity, [Husband] is incapable of protecting his own interests in this lawsuit." The court appointed GAL Ashley Irwin and ordered Husband to deposit $2, 000 as security for GAL Irwin's fees. Husband did not comply.

         The same day the court appointed GAL Irwin, GAL Kuhl filed a Notice of Request for Guardian ad Litem fees to alert County of the possibility that GAL Kuhl might be seeking payment of fees from public funds and to request that County be given the opportunity to seek permissive intervention under Rule 52.12(b). The court granted GAL Kuhl's motion and granted County permission to intervene.

         Thereafter, Grandparents filed their third-party answer and counter-petition, and in that pleading, Grandparents sought, for the first time, visitation rights with the minor children. In response to Grandparents' request, GAL Kuhl filed a motion to amend the order appointing him to seek a security deposit for his fees from Grandparents as well. Grandparents objected, arguing that they were in the case solely because of their property interest in the marital home and should not be held liable for any GAL fees. Wife filed a motion in support of GAL Kuhl's request, and, in response, Grandparents voluntarily dismissed their request for visitation, and GAL Kuhl withdrew his request to amend the appointment order.

         Around the same time, GAL Irwin filed a Notice of Request for Guardian ad Litem fees to also alert County of the possibility that she might be seeking payment of her fees from public funds and to request that County be given the opportunity to seek permissive intervention under Rule 52.12(b). The court sustained GAL Irwin's request and granted County leave to intervene in the matter.

         Thereafter, County entered a limited appearance seeking dismissal of GAL Irwin's request for payment of fees from public funds. County argued that the court lacked any statutory authority to assess GAL Irwin's fees against public funds in light of the fact that she was appointed to represent Husband under Rule 52.02(k), which does not provide for any payment from public funds. GAL Irwin responded, arguing that, because her appointment arose during a dissolution proceeding, the payment provision of § 452.423.5(2)[2] allowing payment from public funds applied and permitted her to seek payment against County.

          Following a trial on the dissolution, the court held a hearing on the assessment of fees. At the fees hearing, County argued that neither GAL should be able to obtain fees from public funds. As to GAL Kuhl, County argued, in part, that

because of [Husband's] lack of production of documents in discovery and his nonadherence to the orders of this Court and the discovery process in general, that there could be no findings made as to [Husband's] financial stability or his current financial picture. [Administrative Order No. 2014-041 of the Jackson County Circuit Court] requires the Court to make those findings based on the specifics of 125 percent of the federal poverty statute.
It is the County's contention that, because of [Husband's] nonadherence to discovery and orders in this case, that this, in fact, precluded the Court from being able to make those findings. And therefore, since we cannot make a finding for [Husband], in his financial status, and with [Wife] being stipulated to as not indigent for the purpose of this case, [3] and with the Court's ruling on June 24 regarding the paternal grandparents that were intervenors in this cause as not being parties with respect to the children[4] and, therefore, not to be considered with respect to the guardian ad litem fees, the County would request that the Court find that there-no one in this case can be found indigent and that the guardians ad litem be allowed to pursue other venues in collection of their fees.

         GAL Kuhl argued that the evidence demonstrated that Husband had no income. County argued that the evidence simply failed to demonstrate Husband's income, rather than demonstrating that he lacked any. County then argued that Administrative Order 2014-041 required the court to take into account all sources of income, "[a]nd the testimony was that [Grand]parents, who couldn't be-that are able to contribute as they did throughout the pendency of the divorce action, including during the marriage, do provide assistance to [Husband], and that is something that the Court should take into account in determining this as well." The court then verified that 125% of the Federal Poverty Guidelines, as applicable to Husband, would be an annual income of $14, 850 or less. Previously, the court had ordered Husband to pay child support to Wife and had calculated the amount owed by imputing income to Husband based upon a full-time minimum wage job, or $15, 912 annually. Nevertheless, the court declared Husband indigent for the purpose of assessing GAL fees against County and assessed $1, 750 of GAL Kuhl's fees to County.

         As to GAL Irwin, County argued that "the government cannot be held liable for certain actions unless specific, prescribed variables are met, " and that GAL Irwin's appointment was "not [a chapter] 452 appointment[]; therefore, [she] cannot petition for public funds." GAL Irwin acknowledged that chapter "452 either governs my appointment or it does not. There's no in between. It's a yes or no question." She further argued that,

[i]f it does govern my appointment, then the administrative order 2014-041 explicitly applies, and therefore the Court has power to assess my fees from county funds under that authority. If it does not apply, then I have case law specifically authorizing the Court to make such an award based on its inherent power. Since there is no specific statute authorizing guardian ad litem appointments under Rule 52 or-under Rule 52, then it would rely on the inherent power of the Court to tax those funds against the County, which is garnered from a Missouri Supreme Court case, [State ex rel.] Weinstein [v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970)] from 1970.

         The court determined that GAL Irwin's appointment was "more in line with the 452 appointment, and I think it was needed, and so I'm going to rule in favor of [County] paying fees of the amount of $1, 750." The court then entered an amended judgment, finding that GAL Irwin incurred "total fees and expenses in the amount of $6, 704.98, " for which County was liable, under Administrative Order 2014-041, for a total of $1, 750 because Husband was indigent. The court further found that GAL Kuhl, appointed under § 452.423, was entitled to fees for 48.6 hours of work billed at $100 per hour and 9.5 hours billed at $80 per hour. The court ordered that Husband was responsible for 37.3 hours of the fees, purportedly representing his half of the obligation, and it entered a judgment against Husband in the amount of $3, 730[5] but ordered the fees paid from public funds due to Husband's indigence. Because of limits on the amount payable by public funds imposed by Administrative Order 2014-041, the court entered final judgment against County in the amount of $1, 750 for GAL Kuhl's fees. Thus, County was assessed a total of $3, 500 in GAL fees resulting from the dissolution action. County appeals.

         Standard of Review

         "The determination of attorney fees[, including those incurred by a GAL, ] is within the sound discretion of the trial court and should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to indicate indifference and lack of proper judicial consideration." Barkho v. Ready, 523 S.W.3d 37, 45 (Mo. App. W.D. 2017) (quoting Trimble v. Pracna, 167 S.W.3d 706, 714 (Mo. banc 2005)). But the question of "[w]hether a trial court has authority to award attorneys' fees is a question of law [that] we review de novo." Id. (quoting St. Louis Title, LLC v. Talent Plus Consultants, LLC, 414 S.W.3d 24, 26 (Mo. App. E.D. 2013)).


         County raises three points on appeal. The first point challenges the court's authority to award fees to GAL Irwin in the absence of supporting statutory authority. The second and third points both challenge the court's determination that Husband was indigent. Point II argues that the court failed to account for income provided to Husband by Grandparents, and Point III argues that the court's decision to impute income to Husband in an amount exceeding 125% of the Federal Poverty Guidelines was inconsistent ...

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