Opinion
NO. 2014-CA-001070-MR
03-24-2017
TASHA SCOTT SCHAFFNER, GUARDIAN AD LITEM FOR THE PARTIES' MINOR CHILD APPELLANT v. BRENDA CALLIHAN APPELLEE
BRIEF FOR APPELLANT: Tasha K. Schaffner, Pro Se Florence, Kentucky NO BRIEF FOR APPELLEE.
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 07-CI-00772 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. TAYLOR, JUDGE: Tasha Scott Schaffner, the duly appointed guardian ad litem (GAL) in this action below, brings this appeal from an April 29, 2014, Order of the Kenton Circuit Court, Family Court Division, (family court) retroactively reducing her GAL fee from $175 per hour to $100 per hour. We affirm in part, reverse in part, and remand.
Michael Callihan and Brenda Callihan were both parties to the underlying dissolution of marriage action in the Kenton Circuit Court, Family Court Division. And, both Brenda and Michael were originally named as appellees in this appeal. However, by order of this Court entered January 21, 2016, Michael was dismissed as a party to this appeal by agreement.
Brenda Callihan and Michael Callihan were married in 1999. They had one child together, a daughter, P.G.C., in 2001. Michael filed a petition for dissolution of marriage in the family court on March 13, 2007. By decree of dissolution entered August 23, 2007, the family court dissolved the parties' marriage. The decree incorporated a property settlement agreement wherein Brenda and Michael were awarded joint custody of P.G.C., and, each was awarded equal parenting time.
Shortly after the decree was entered, the parties began to disagree on issues related to their daughter. With the assistance of their attorneys, Michael and Brenda reached an agreement addressing outstanding issues, such as the child's extracurricular activities, social obligations, doctor appointments, and holiday schedule. Unfortunately, by 2010, the parties were again unable to agree on virtually every aspect of parenting P.G.C. Due to the high level of animosity between the parties and the special needs of the child, the parties and their attorneys agreed to enlist the assistance of a GAL. The attorneys for Brenda and Michael jointly contacted appellant, Tasha Scott Schaffner, and inquired whether she would serve as GAL for the child. The attorneys conveyed to Schaffner the contentious and time-consuming nature of the case. Schaffner agreed to serve as GAL for a fee of $175 per hour, and the attorneys for both parties agreed to the fee on behalf of their clients.
P.G.C. had been diagnosed with post-traumatic stress disorder and pervasive development disorder. P.G.C. also exhibited behavior consistent with Asperger's syndrome. Brenda agreed with the diagnoses, but Michael did not. Michael asserted that P.G.C. was merely "quirky".
By order entered August 31, 2010, the family court appointed Schaffner as GAL for the child; however, the order was silent regarding Schaffner's hourly rate. Over the next few years, Schaffner was heavily involved in the case as GAL and made numerous court appearances. Schaffner also frequently met with the parties, the parties' attorneys, P.G.C., and P.G.C.'s therapist.
Beginning in early 2013, the case became particularly antagonistic. On January 18, 2013, Schaffner filed a motion seeking review of the case status. And, on February 13, 2013, Schaffner filed a motion seeking to have Brenda held in contempt for failure to abide by a previous order detailing how the parties were to "filter" concerns for P.G.C.'s safety. On February 27, 2013, Michael then filed a motion to modify the parties' parenting time. Particularly relevant to this appeal, on April 23, 2013, Schaffner filed a motion to have Brenda held in contempt for her failure to pay her most recent bill for GAL fees. Subsequently, on April 29, 2013, Brenda filed a response to Schaffner's motion to hold Brenda in contempt for non-payment of GAL fees. Specifically, Brenda argued that Schaffner was "over charging for her services as a GAL" and that it was customary practice for a GAL to be paid $100 per hour. The family court ultimately conducted an evidentiary hearing that spanned four days upon the above motions.
Following the hearing, the family court entered its Findings of Fact, Conclusions of Law and Order on February 17, 2014. In the February 17, 2014, order, the family court held that the reduced rate of $100 per hour should apply to Brenda's most recent bill from Schaffner as GAL, and to all GAL fees incurred thereafter.
Subsequently, on February 24, 2014, Michael filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 seeking a retroactive reduction in the GAL's hourly fee. Michael specifically sought "a credit for overpayment of all GAL fees paid at the higher rate" of $175 per hour. By order entered April 29, 2014, the family court held:
[W]hereas [Michael] and [Brenda] agreed to engage the services of Tasha Scott Schaffner on behalf of their minor child, [P.G.C.], at the agreed upon hourly rate of $175.00 per hour. The parties functioned under this agreement from the Guardian Ad Litem's appointment in 2008 until [Brenda's] first Motion filed on April 23, 2013, wherein the court at that time ordered that all future time be billed at $100.00 per hour. The parties have now asked this Court to order that all Guardian Ad Litem fees be retroactively billed from the date of the appointment of the Guardian Ad Litem at $100.00 per hour and that the Guardian Ad Litem re-issue said bills at $100.00 per hour, it is hereby ordered that said Motions on behalf of [Michael] and [Brenda] are granted over the objection of the Guardian Ad Litem. The Guardian Ad Litem is hereby ordered to retroactively adjust all bills to $100.00, per hour.Therein, the family court ordered that the GAL's fee be reduced to $100 per hour retroactive to the date of the GAL's appointment. Schaffner then filed a motion pursuant to CR 59.05 to alter, amend, or vacate the April 29, 2014, Order. By Order entered June 19, 2014, the family court denied Schaffner's motion. This appeal follows.
We begin our review by noting that Brenda failed to file an appellee brief in this case. CR 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). This Court may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). For purposes of this appeal, we accept Schaffner's statement of facts set forth in her brief as correct.
Brenda was originally represented by Holly Daugherty in this case. On June 8, 2015, Daugherty filed a motion of nonrepresentation which was treated by this Court as a motion to withdraw as counsel. An order was entered July 10, 2015, granting the withdrawal of counsel. No substitute appearance of counsel was filed on behalf of Brenda.
The law in Kentucky is well-established that a family court has the authority to appoint a guardian ad litem in disputes involving custody, shared parenting, visitation, or support. Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014); Kentucky Family Court Rules of Practice and Procedure (FCRPP) 6. In fact, FCRPP 6(2) specifically provides, that a parent "may move for, or the court may order" the appointment of a GAL, and the court may apportion the expense to the parents. It is axiomatic that where a GAL is appointed, the fee charged by the GAL must be reasonable. James v. Shadoan, 58 S.W.3d 884 (Ky. 2001) (citing Black v. Wiedeman, 254 S.W.2d 344 (Ky. 1952); Goldfuss v. Goldfuss, 609 S.W.2d 696 (Ky. App. 1980)). And, a direct appeal upon the reasonableness of the fee may be brought by the GAL or by the party against whom the fee was assessed. James, 58 S.W.3d 884.
Schaffner has not challenged the February 17, 2014, order that prospectively reduced her hourly fee to $100. Rather, Schaffner contends that the family court erred in its April 29, 2014, Order by reducing her GAL fee to $100 per hour retroactive to the date of her appointment on August 31, 2010. Specifically, Schaffner contends that promissory estoppel precludes Brenda from asserting that the reduced fee of $100 per hour should be retroactively applied to the date of Schaffner's appointment as GAL. In support thereof, Schaffner argues that both parties agreed and promised to pay Schaffner $175 per hour as GAL and for several years did pay Schaffner pursuant to such promise. Schaffner asserts that she would not have agreed to accept the appointment as GAL in 2010 if the hourly fee had been less than $175 per hour. Schaffner further asserts that she reasonably relied upon the parties' promise to pay her $175 per hour and performed services for several years in reliance thereon.
In Kentucky, promissory estoppel is recognized as a cause of action. Jackson v. JB Hunt Transport, Inc., 384 S.W.3d 177 (Ky. 2012). To establish promissory estoppel, one must demonstrate the existence of "'[a] promise which the promisor should reasonably expect to induce action . . . on the part of the promisee . . . which does induce such action . . . [and] is binding if injustice can be avoided only by enforcement of the promise.'" Id. at 184 (quoting Sawyer v. Mills, 295 S.W.3d 79, 89 (Ky. 2009)); See also Meade Constr. Co., Inc. v. Mansfield Commercial Elec., Inc., 579 S.W.2d 105 (Ky. 1979).
In the case sub judice, Brenda and Michael agreed to utilize Schaffner as the GAL for their child and agreed that Schaffner would be paid $175 per hour for her work as GAL. And, the parties paid Schaffner $175 per hour for several years pursuant to the agreement. The order approving Schaffner's appointment in 2010 was silent regarding her hourly rate. Then, by order entered February 17, 2014, the family court determined that the fee should be reduced prospectively to $100 per hour. And, later on April 29, 2014, the family court concluded that the fee should be reduced to $100 per hour retroactive to the date of the GAL's appointment in August 2010.
Under these undisputed facts, it is clear that Brenda and Michael promised to pay Schaffner $175 per hour, Schaffner was reasonably induced to serve as GAL based upon that promise, and Schaffner served for several years as GAL earning $175 per hour. It would operate an injustice to retroactively decrease Schaffner's hourly fee for work performed before entry of the February 17, 2014, order. Therefore, we agree with Schaffner's argument that promissory estoppel precludes the reduction of her GAL fee from $175 per hour to $100 per hour retroactive to the date of her appointment as GAL in 2010.
We distinguish the unique circumstances surrounding the appointment of the Guardian Ad Litem (GAL) in this case versus those routine cases where a GAL is selected from a preapproved roster or list maintained by the family court. --------
Accordingly, we conclude that the family court erred by reducing Schaffner's fee from $175 per hour to $100 per hour retroactive to the date of her appointment as GAL on August 31, 2010, and reverse the April 29, 2014, order to that extent. Any GAL fees earned prior to the February 17, 2014, order, are not subject to reduction; however, all legal services rendered by Schaffner after entry of the February 17, 2014, order are subject to the $100 hourly rate, and to that extent only, the April 29, 2014, order will be affirmed.
Any remaining issues and arguments raised by Schaffner in this appeal are moot.
For the foregoing reasons, the April 29, 2014, Order of the Kenton Circuit Court, Family Court Division, is affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Tasha K. Schaffner, Pro Se
Florence, Kentucky NO BRIEF FOR APPELLEE.