Opinion
NO. 2013-CA-000360-ME
02-07-2014
JAMES HAYES AND DANIEL T. CARTER APPELLANTS v. KRISTA HAYES APPELLEE
BRIEFS FOR APPELLANT: Daniel T. Carter Greenup, Kentucky BRIEF FOR APPELLEE: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 12-CI-00041
OPINION
REVERSING and REMANDING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. STUMBO, JUDGE: James Hayes and Daniel T. Carter appeal from an Order of the Greenup Circuit Court requiring Hayes to pay a guardian ad litem (hereinafter "GAL") fee. Hayes contends that Kentucky law requires the Plaintiff to bear the cost of a GAL fee, that the GAL is entitled to a reasonable fee for the services provided, and that a civil action arising from the criminal acts of the Defendants do not preclude the Plaintiff from paying GAL fees. We conclude that Kentucky statutory law requires a GAL fee to be paid by the Plaintiff, and accordingly Reverse the Order on appeal and Remand it for the entry of such a fee.
The facts are not in controversy. On July 31, 2011, James Hayes set fire to the home in which his wife Krista Hayes and their two minor children were sleeping. He also set fire to the family's two vehicles. According to James, he "snapped" because he thought Krista was having an affair. Fortunately, Krista and the children escaped without injury. James subsequently confessed to the police, and on October 28, 2011, was indicted by the Greenup County Grand Jury on one count of Arson First Degree, two counts of Arson Second Degree, and one count of Wanton Endangerment First Degree. On October 4, 2012, he pled guilty to the counts of Arson Second Degree and Wanton Endangerment, and was sentenced to 25 years in prison.
On January 20, 2012, Krista filed a Petition for Dissolution of Marriage in Greenup Family Court. Because James was incarcerated, the court appointed GAL Daniel T. Carter to represent him in the divorce proceeding. The Decree of Dissolution was rendered on July 20, 2012. Thereafter, the GAL moved that he be awarded attorney fees payable by Krista. Based on the nature of the crime which brought about James' incarceration and the appointment of the GAL, Krista opposed being held responsible for the fee.
Carter was James Hayes' trial counsel and is now appellate counsel.
On December 19, 2012, the Greenup Circuit Court rendered an Order sustaining the GAL's Motion for a fee in the amount of $765.00. The court, however, ordered that James rather than Krista was responsible for paying the fee. On December 27, 2012, James and GAL Carter moved to alter, amend or vacate the Order and sought an Order directing Krista to pay the fee. The Motion was denied on January 2, 2013, and this appeal followed.
James and GAL Carter now argue that the Greenup Circuit Court erred in ordering James rather than Krista to pay the GAL fee. James, through counsel, directs our attention to KRS 453.060(2) and the supportive case law for the proposition that GAL fees are payable solely by the Plaintiff. He points to Mullins v. Consol of Kentucky, Inc., 368 S.W.3d 119 (Ky. App. 2012), for the broader notion that a person who seeks relief from a party with a legal disability, i.e., one who has an inability to participate in the civil proceedings due to incarceration, must bear the cost of prosecuting the action. More to the point, James maintains that the express language of KRS 453.060(2) and Mullins require a GAL fee to be paid solely by the Plaintiff, and that the Greenup Circuit Court erred in failing to so rule.
KRS 453.060(2) states that a "guardian ad litem or warning order attorney shall be allowed by the court a reasonable fee for his services, to be paid by the [P]laintiff and taxed as costs." (Emphasis added). In Mullins, a panel of this Court examined KRS 453.060(2) in the context of whether a GAL fee was properly payable out of an escrow account funded by the Plaintiff but held for the benefit of both parties. In answering this question in the negative, the panel reiterated the language of KRS 453.060(2) in expressly concluding that "the Plaintiff should directly bear the cost of any awarded GAL fees." Mullins, 368 S.W.3d at 121.
The statutory language at issue is clear and unambiguous, and is subject to but one interpretation: a guardian ad litem fee "shall . . . be paid by the [P]laintiff." KRS 453.060(2). "'In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command and ... must be given a compulsory meaning. '" Hazard Coal Corp. v. Knight, 325 S.W.3d 290 (Ky. 2010), quoting Black's Law Dictionary 1233 (5th ed.1979). Or stated more succinctly, "[s]hall means shall." Vandertoll v. Commonwealth, 110 S.W.3d 789, 796 (Ky. 2003).
When applying the foregoing to the record before us, we conclude that the Greenup Circuit Court erred in failing to determine that Krista, as Plaintiff, bears the sole burden of paying the GAL fee. Though Krista makes a compelling argument centered on public policy and equity that the Order on appeal must be affirmed, a dispassionate application of the law to the facts leads us to a contrary conclusion. KRS 453.060(2) clearly provides that a GAL fee "shall . . . be paid by the [P]laintiff", and the Greenup Circuit Court erred in failing to so rule.
Additionally, GAL Carter contends that he is entitled to the GAL fee. Though this is not at issue in that the Greenup Circuit Court awarded to him the fee payable by James, we nevertheless reiterate that GAL Carter is entitled to such a fee. A GAL "shall be allowed by the court a reasonable fee for his services[.]" KRS 453.060(2).
For the foregoing reasons, we Reverse the Order of the Greenup Circuit Court and Remand the matter for the entry of a fee in favor of GAL Carter and payable by Krista.
TAYLOR, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. Initially, I point out the obvious injustice of imposing the GAL fee upon Krista. The need for a GAL to represent James in this dissolution action was precipitated by his criminal conduct committed in an attempt to burn the family home with Krista and their children inside. To present a further financial impediment to Krista's ability to end her marriage by requiring her to pay James's legal representation is repugnant to my judicial conscience. Equitable principles disfavor such a result and, fortunately, the law does not require such a result.
Unlike Mullins v. Consol of Kentucky, Inc., 368 S.W.3d 119 (Ky. App. 2012), which involved a property dispute, this is an action for dissolution of marriage and, therefore, KRS 403.220 permits the court to award costs against either party. "[A]n allocation of court costs and the award of attorney's fees are entirely within the discretion of the trial court." Wilhoit v. Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975). In Spees v. Kentucky Legal Aid, 274 S.W.3d 447 (Ky. 2009), the Court addressed whether an indigent petitioner in a dissolution action was responsible for a warning order attorney fee or whether her status as poor person as defined by KRS 453.190 precluded the imposition of such a fee.
Ultimately, our Supreme Court held although a person's inability to pay the fee may not bar the adjudication of dissolution action or prevent its initiation, once fully adjudicated, KRS 453.060(2) mandates a warning order attorney be paid a reasonable fee by the petitioner. Id. at 450. The Court's holding would seem to support the view espoused by the majority. However, after reading the case in its entirety, I conclude the opposite is true.
Unequivocally, the Court recognized the trial court retains discretion to award court costs and to include a warning order attorney fee within those costs.
[J]ust as the trial court has discretion in determining the amount of the fee to be awarded to the warning order attorney, the trial court has discretion in setting reasonable terms for the payment of same, and discretion to allocate the burden of the fees to other parties by its allocation of court costs.Id. at 451. Notably, our Supreme Court did not order the indigent petitioner to pay the warning order attorney, but remanded the matter to the Family Court to determine which party would be responsible for the fee as costs. Id.
This Court should apply the reasoning in Spees and remand the case to the trial court for a determination as to which party is responsible for the GAL fee as a cost of the dissolution action. BRIEFS FOR APPELLANT: Daniel T. Carter
Greenup, Kentucky
BRIEF FOR APPELLEE: Tracy D. Frye
Russell, Kentucky