Opinion
Case No. 3D03-2823.
Opinion filed August 17, 2005.
An Appeal from the Circuit Court for Miami-Dade County, Joel H. Brown, Judge, Lower Tribunal No. 01-7637.
Barry S. Franklin and Donald G. Criscuolo, for appellant.
Lauri Waldman Ross; Buckner Shifrin Rice Etter, for appellee.
Before GREEN, RAMIREZ and SHEPHERD, JJ.
This appeal seeks to review an order of the trial court which gave priority to the payment of fees incurred by a guardian ad litem over those incurred by the former wife's counsel that had been secured by an earlier charging lien. We affirm the lower court's decision giving preference for payment to the guardian on the facts of this case, but because this is a case of first impression, we will afford the attorneys the opportunity to contest the reasonableness of the guardian ad litem bill for the reasons set forth below.
The relevant facts are as follows. The law firm of Franklin Criscuolo represented the former wife, Cheryl Rogers. The former husband, Theodore ("Harvey") Rogers, was represented by other counsel. During their nineteen-month marriage, the Rogers produced one child, John, born on January 5, 2000, who was a mere one year old at the time of the divorce.
The dissolution became increasingly acrimonious as it proceeded, and the court believed it needed assistance in determining custody, visitation, and whether to designate a primary residential parent. The husband alleged that the wife had an alcohol abuse problem, which was denied by the wife until almost the very end of the litigation; and the wife claimed the husband was abusive.
As such, in April 2001, upon the husband's motion, the trial court appointed Attorney Jeannie Etter to act as guardian ad litem to make recommendations relative to the parenting issues and related claims as framed by the pleadings. The wife did not object to Etter's appointment. Ms. Etter is an attorney; the record does not indicate that she is a mental health expert, a family expert, or that she has any professional investigative qualifications. Nevertheless, the court allowed the appointment pursuant to an order stating that the husband would advance the fees of the guardian, subject to their being taxed as the court determined appropriate at the conclusion of the case.
While we recognize that section 61.401 of the Florida Statutes confers discretion on the trial court to appoint legal counsel for a child to act as an attorney or advocate, it is apodictic that courts are not required to make such an appointment. Our independent review of the record leads us to question why young John needed an attorney advocate, or a "next friend" to speak on his behalf. The issue before the lower court — who should be the primary residential parent — was a rather simple, garden variety question well within the ken of the court's daily fare. The guardian spent sixty percent of her approximately 200 hours figuring out whether in fact the wife had a drinking problem, something that was squarely the husband's burden to prove. The court had already appointed a psychologist, Dr. Edward Sczechowiciz, to address any mental health issues. Although we acknowledge that the parties agreed to Ms. Etter, we have difficulty seeing what benefit Ms. Etter could confer on the issue presented. See In re Report of Family Court Steering Cmte., 794 So. 2d 518, 520 (Fla. 2001) ("Family disputes should be resolved in [a] fair, timely, efficient and cost-effective manner.").
During the course of the two-year litigation, Cheryl Rogers became delinquent in paying her counsel, but the law firm continued its representation in consideration of a charging lien, which was recorded with the wife's consent in September 2002, and was to operate against her fifty-percent interest in the marital home upon an anticipated partition. The home was sold and the net proceeds were placed in an interest-bearing account, subject to further court order regarding disbursement.
During this time, guardian ad litem Etter submitted reports and recommendations incident to her appointment. She found both parents to be flawed and recommended that neither parent be given primary residential parent status, in hopes of making each parent self-police his/her behavior in order not to lose the child to the other parent.
In September 2003, following a nine-day trial, the trial court entered a Final Judgment of Dissolution of Marriage. The former wife's counsel's request for fees was granted in the amount of $82,500, subject to certain credits. The court also found that the guardian ad litem was entitled to $52,743 in total fees for approximately 200 hours of services provided to the court for the benefit of the minor child at attorney fee-like rates of $250, $275, and $285, even though she had neither acted in that capacity on behalf of young John, nor needed a law degree for the social work services she rendered. For reasons unclear, counsel for the wife and the husband did not object to the reasonableness of the fees awarded the guardian ad litem. Instead, the dispute centered on the court's allocation of those guardian ad litem fees on a certain percentage basis between the former husband (twenty percent being $10,548.60) and former wife (eighty percent being $42,194.40), and who should have priority as between the guardian ad litem and counsel for the wife. Counsel for the wife asserts that its previously-recorded charging lien was prior in time to the guardian ad litem's interest created through the final judgment. Wife's counsel sought a rehearing on the judicially-sanctioned "leapfrog" of the guardian ad litem, but was denied. This appeal follows.
The court's order expressly found:
4. The Guardian presented uncontroverted testimony that 60 percent of her time was devoted to the misrepresentations of the Respondent [wife] with regard to her alcohol-related problems.
5. The Guardian further testified that the remaining 40 percent of her time was equally divided between the Father and Mother with regard to issues involving the minor.
We recognize there is a strong public policy in protecting the interests of children during dissolution proceedings. James v. James, 64 So. 2d 534 (Fla. 1953). Under section 61.401 of the Florida Statutes, "if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate." § 61.401, Fla. Stat. (2004).
Here, the guardian ad litem is regarded as a court's agent, with the attendant duty to investigate, evaluate, and report back to the court. James, 64 So. 2d at 536; § 64.403, Fla. Stat. (2004). She is not merely a general creditor akin to a mortgagee or contractor, but serves, as appellant admitted here, more like a receiver for the court. See, e.g., Lewis v. Gramil Corp., 94 So. 2d 174, 176 (Fla. 1957) (allowance of fees and expenses to receiver within trial court's sound discretion); Youngblood v. Taylor, 89 So. 2d 503, 506 (Fla. 1956) (construing one who acts as a child's "next friend" as "an officer of the court, especially appearing to look after the interests of the minor whom he represents"); Columbia Bank for Cooperatives v. Okeelanta Sugar Co-Op, 52 So. 2d 670, 673 (Fla. 1951) (receiver is "an arm of the court"). As such, the guardian by her very position does not have any statutory lien rights; she is completely dependent upon the court that appointed her to ensure that she is compensated.
While we acknowledge that attorney charging liens attach to the proceeds of property distributions and have priority over judgment liens, see New England Mut. Life Ins. Co. v. Podhurst, Orseck, 690 So. 2d 1354, 1356 (Fla. 3d DCA 1997), the issue in this case turns on whether the lower court has the inherent authority in a dissolution action to ensure that its court-appointed guardian ad litem is paid as a cost of litigation, even at the expense of an attorney charging lien. In this particular instance, we find that it was equitable to charge guardianship fees as taxable costs in the underlying dissolution proceedings, and to give guardianship costs priority over an attorney's charging lien. Metcalfe v. Metcalfe, 655 So. 2d 1251 (Fla. 3d DCA 1995); G. Van Ingen, Annotation, Allowance of Fees for Guardian Ad Litem Appointed for Infant Defendant, as Costs, 30 A.L.R. 2d 1148 (1953). The primary reason we are compelled to reach this conclusion of allowing the guardian ad litem to have primacy over the attorney's charging lien is because both litigants agreed at the outset to the appointment of a guardian ad litem and both were "on notice that the award of such a fee was a possibility in this case." See Metcalfe, 655 So. 2d at 1253 (award of reasonable fees to a guardian affirmed even though trial court's order of appointment was silent on the issue of payment). We wish we could agree that the matters in controversy were significant enough to require a guardian ad litem's independent examination and report on behalf of the child John; however, the wife's attorneys have squandered that issue by their consent to her appointment, which in turn justly operates to displace the attorney fees from the limited resources of Cheryl Rogers. Additionally, as we have acknowledged, the decision to appoint the guardian ad litem in this case was within the trial court's discretion.
Perhaps the most unfortunate consequence of the appointment of the guardian ad litem is that in her bill, which is being taxed as costs upon the parents, the guardian will seek monies that could have been spent towards John's future, and not on his "next friend."
Affirmed, with instructions that on remand the attorneys are able to litigate the reasonableness and allocation of the fees awarded the guardian ad litem.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.