In termination of parental rights cases with at least one solvent party, guardian ad litems may make more than the indigent compensation cap

Under Tennessee Supreme Court Rule 13, which provides compensation for indigent parties, a guardian ad litem (“GAL”) may make up to $1,000 in most termination of parental rights cases.  If the case is extended and complex, the GAL may earn up to $2,000.  Alternatively, in cases where the parties are solvent, Rule 17.03 of the Tennessee Rules of Civil Procedure authorizes reasonable GAL fees as costs.  Further, Rule 54.04 of the Tennessee Rules of Civil Procedure provides that, in the trial court’s discretion, costs may be allowed to the prevailing party.  Under Rule 17.03 and Rule 54.04, GAL fees may be significantly higher than the $1,000 and $2,000 caps under Rule 13.

Given the above, the next question is what happens when one party is solvent and the other party is indigent.  On Tuesday, the Tennessee Court of Appeals answered that question and held that, where one party is solvent, Rules 17.03 and 54.04 of the Tennessee Rules of Civil Procedure authorize reasonable GAL fees that are higher than the Rule 13 caps.  In the case at hand, the solvent party brought an action to terminate an indigent parent’s parental rights and lost.  Afterwards, the GAL submitted a request for $9,615 in fees and $104.81 in travel expenses, to be paid by the solvent party.  After hearings on the matter, the trial court ultimately granted the GAL’s motion and ordered the solvent party to pay the entire amount.

On appeal, the solvent party argued that the trial court erred in (1) awarding GAL fees that exceeded the maximum compensation under Rule 13 and (2) ordering the solvent party to be solely responsible for payment of the fees.  In ruling for the guardian ad litem, the court of appeals noted that Rule 13 must be read in light of its general purpose, i.e., to provide a means of compensation for attorneys appointed to represent indigent parties.  Nothing in Rule 13 forbids attorneys from seeking compensation from solvent parties.  Further, Rules 17.03 and 54.04 allow attorneys to seek compensation from solvent parties.  Based on the foregoing, the appellate court held that a GAL may seek reasonable compensation from a solvent party.

Regarding whether the indigent party should pay any of the GAL’s fees, the court of appeals first noted that the solvent party initiated the action and lost.  Moreover, the solvent party did not dispute that it was capable of paying the fees.  Further, since the only other party was indigent, the solvent party was far more able to bear the costs of the GAL’s fees.  Finally, the solvent party did not challenge the GAL fees as unreasonable or unnecessary.  Therefore, the Tennessee Court of Appeals affirmed the trial court’s order that the solvent party pay the GAL’s fee.

In re Ashton B., No. W2017-00372-COA-R3-PT (Nov. 7, 2017)

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