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Rich v. Berry (8/6/93), 857 P 2d 341
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JUDITH M. RICH, GUARDIAN AD )
LITEM SERVICES, INC., ) Supreme Court No. S-5057
)
Appellant, )
)
v. ) Superior Court No.
) 3AN-89-7719 CIVIL
DENISE M. BERRY and ROBERT )
T. BERRY, ) O P I N I O N
)
Appellees. )
______________________________) [No. 3990, August 6, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski, Judge.
Appearances: Vincent P. Vitale,
Anchorage, for Appellant. William T. Ford,
Anchorage, for Appellee, Robert T. Berry.
Allison E. Mendel, Anchorage, for Appellee,
Denise M. Berry.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
RABINOWITZ, Justice.
This appeal concerns a dispute regarding a non-attorney
guardian ad litem's claim for attorney's fees and costs incurred
in a prior appeal to this court.
I. FACTS AND PRIOR PROCEEDINGS
Denise M. Berry and Robert T. (Tom) Berry married and
had two children. Denise Berry subsequently filed a Complaint
for Divorce. Custody of the two children was contested. In
November of 1989, Denise and Tom Berry executed a "Stipulation
for Appointment of a Guardian Ad Litem"which reads in part:
"[The parties] hereby stipulate to the appointment of a guardian
ad litem. . . . The parties have agreed that [Judith Rich] shall
be appointed." Rich was not an attorney.
By order dated November 22, 1989, the superior court
appointed Rich as guardian ad litem for the two children. Denise
Berry and Tom Berry were divorced on September 14, 1990. The
issues of child custody, support, and property division were
reserved for a subsequent proceeding. On November 27, 1990, the
superior court granted sole legal and physical custody of the
children to Tom Berry. Its decree was based in part on Rich's
recommendation.1 In regard to the guardian ad litem, the
superior court in its findings of fact stated:
The Guardian Ad Litem is discharged
after all post-trial motions have been ruled
on and time for appeal has expired. She
should submit a final billing to the court
and to TOM BERRY's counsel.
Denise Berry then appealed to this court from the Decree of
Divorce. Her points on appeal included challenges to the role
that Rich had played in the case and to the superior court's
custody determination.
While the appeal was pending before this court Rich
moved for an award of fees and costs to defend the superior
court's child custody determination.2 Rich noted in her
affidavit in support of the motion that she had retained legal
counsel to represent herself, and explained:
Since the basis of MS. BERRY's appeal is
an attack on the role of the Guardian Ad
Litem [sic], I retained legal counsel to
represent the Guardian Ad Litem in the
appellate proceedings. As the party in the
trial proceedings who was charged with the
duty to advocate for the best interests of
the children, I can best defend the record on
appeal as it supports this Court's child
custody determination.
Also in her affidavit, Rich requested that the superior court
declare Denise Berry and Tom Berry to be jointly and severally
liable "for all legal fees and costs incurred on behalf of the
Guardian Ad Litem in the superior court and in the Alaska Supreme
Court," and that the superior court order Denise Berry and Tom
Berry to establish a $5,000 "interim trust fund deposit"for such
expenses.
Both Denise Berry and Tom Berry opposed Rich's motion.
They argued that the children did not need independent
representation in connection with the pending appeal to this
court. Tom Berry noted that both he and Denise Berry were
already incurring costs for their own independent counsel, and
that they did not have the resources to pay for Rich's attorney.
Additionally, Tom noted that his own attorney was capable of
defending the superior court's custody determinations and
evidentiary rulings. Denise Berry agreed with her ex-husband's
position and observed: "The guardian, if she feels a personal or
professional need to defend her actions in the court below,
should be free to participate in the litigation at her own
expense."
The superior court then entered an order granting what
it termed the "Motion for An Award of Fees and Costs filed on
behalf of the Guardian Ad Litem." Its order stated that Ms.
Berry and Mr. Berry would be jointly and severally liable "for
all fees and costs incurred on behalf of the Guardian Ad Litem in
the [sic] these superior court proceedings and in the Alaska
Supreme Court proceedings. . . ." The order further provided
that the Berrys were each required to tender $750 to Guardian Ad
Litem Services, Inc. by May 1, 1991.
On November 20, 1991, this court issued a Memorandum
Opinion and Judgment noting that Denise Berry had waived her
right to appeal any error in the guardian's role in the
proceedings which were held before the superior court, that there
was no evidence of plain error which would negate this waiver,
and that the superior court's custody determination was not
clearly erroneous. On the same day, Rich moved, pursuant to AS
25.24.310, to reduce to judgment $6,523.65 in attorney's costs
and fees incurred in connection with the appeal.
In its Decision and Order on the guardian's motion for
attorney's fees and costs, the superior court noted:
The court's prior ruling that the
parent's [sic] be liable for the Guardian Ad
Litem's attorney fees is necessarily limited
to reasonable fees. Further, this court
considers it unreasonable for the guardian to
exceed expenditures in the amount ordered
deposited without seeking for that authority
from the court. Consider, the standard in
Admin. Rule 12.
Therefore, it is hereby ordered
that the Berry's [sic] are to pay the $750.00
apiece previously ordered in support of the
Guardian Ad Litem's fees.
This appeal followed.3
II. DISCUSSION
Alaska Statute 25.24.310(c) sets out the requirements
for the appointment of a guardian ad litem. In relevant part the
statute provides:
[T]he court may, upon the motion of
either party or upon its own motion, appoint
an attorney or other person or the office of
public advocacy to provide guardian ad litem
services to a minor in any legal proceedings
involving the minor's welfare. The court
shall require a guardian ad litem when, in
the opinion of the court, representation of
the minor's best interests . . . would serve
the welfare of the minor. The court in its
order appointing a guardian ad litem shall
limit the duration of the appointment of the
guardian ad litem to the pendency of the
legal proceedings affecting the minor's
interests, and shall outline the guardian ad
litem's responsibilities and limit the
authority to those matters related to the
guardian's effective representation of the
minor's best interests in the pending legal
proceeding. . . . When custody, support, or
visitation is at issue in a divorce, it is
the responsibility of the parties or their
counsel to notify the court that such a
matter is at issue. Upon notification, the
court shall determine if the minor's best
interests need representation or if the minor
needs other services and shall make a finding
on the record before trial.
The statute contains the following procedural steps relevant to
our disposition of this appeal:
(1) The parties or their counsel
must notify the court if custody,
support, or visitation is at issue,
(2) The court must then enter
findings on the record as to whether the
minor's best interests and welfare
require the services of a guardian ad
litem.
(3) In the event a guardian ad
litem is appointed the court must
outline the scope of the guardian's
responsibilities which must be limited
to the guardian's effective
representation of the minor's best
interests.4
In our opinion the superior court failed to proceed in
accordance with the requirements of AS 25.24.310(c) in regard to
its implied appointment of Rich as guardian ad litem in the Berry
v. Berry appeal to this court.5 The most significant omission on
the superior court's part was its failure to make a finding on
the record that the minor children's best interest and welfare
required the services of a guardian in connection with Denise
Berry's appeal to this court.6 The record is simply devoid of
any articulated explanation as to why the superior court
concluded it was necessary that Rich be appointed guardian ad
litem to represent the children in the Berry v. Berry appeal.
Furthermore, the parameters of Rich's responsibilities and
authority in effectively representing the children's best
interests in the appeal were never outlined by the superior
court. Instead the court merely noted that the parents would be
jointly and severally liable for all costs incurred on the
guardian's behalf in both the superior court and supreme court
proceedings.7
In light of the foregoing we conclude that the superior
court's April 5, 1991 order awarding fees to the guardian ad
litem must be VACATED. The case is REMANDED for further
proceedings in accordance with this opinion.
_______________________________
1. Rich's total costs for the first trial were $9,975, all
of which have been paid.
2. The full text of the motion was as follows: "COMES NOW
JUDITH M. RICH, of Guardian Ad Litem Services, Inc., by and
through her attorneys, the Law Offices of Janet D. Platt, and
hereby moves this Court for an award of fees and costs for the
court appointed Guardian Ad Litem to defend the child custody
determination issued by this Court. This motion is supported by
the attached memorandum, exhibits, and Affidavit of Judith M.
Rich."
3. Rich lists one point on appeal: "That the trial court
erred as a matter of fact and law in denying the Guardian Ad
Litem's request to enter a judgment against the Plaintiff and
Defendant for attorney's fees and costs incurred and paid for by
the Guardian Ad Litem."
4. Compare Administrative Rule 12(c)(1) which provides:
Appointment Procedure. When a
person qualifies for counsel or guardian ad
litem services under AS 44.21.410, the court
shall appoint the office of public advocacy.
The court in its order appointing the office
of public advocacy must state the authority
for the appointment. In the case of a
discretionary appointment, the court must
give specific reasons for the appointment.
In the case of a guardian ad litem
appointment, the court shall limit the
appointment to the pendency of the
proceedings affecting the child's welfare,
shall outline the guardian ad litem's
responsibilities, and shall limit the
guardian's authority to those matters related
to the guardian's effective representation of
the minor's best interests.
5. As noted above the superior court's order of April 25,
1991 provided in part that the Berrys "shall be jointly and
severally liable for all fees and costs incurred on behalf of the
GAL in [these] superior court proceedings and in the Alaska
Supreme Court proceedings." (Emphasis supplied.)
6. A second separate appointment was necessary under the
specific delineation of guardian duties provisions of AS
25.24.310(c), as well as under the express terms of the superior
court's findings of fact in the divorce proceedings, which
provided that Rich was discharged "after all post-trial motions
have been ruled on and time for appeal has expired."
7. The procedural requirements of AS 25.24.310(c) are
designed to ensure that careful consideration is given to the
best interest and welfare of the child in the appointment of a
guardian, and the delineation of the guardian's specific role.
As noted previously, there is no record evidence that any such
consideration of the relevant criteria was undertaken by the
superior court, despite considerable evidence in the record
indicating that the children's best interests and welfare did not
require the appointment of a guardian in the Berry v. Berry
appeal. This evidence consists in part of the following:
First, Tom Berry and Denise Berry were people of
limited means. The court had knowledge of this fact, as it had
recently ordered distribution of the marital estate. Both Tom
Berry and Denise Berry had indicated to the superior court in
their opposition to the motion for costs for Rich and her counsel
to defend the appeal in Berry v. Berry that cost was a key
concern. It has been observed that the guardian "must consider
the broad best interests of the child . . . the representative
must keep in mind the long-term impact of his action on the
child." 2 Jeff Atkinson, Modern Child Custody Practice 13.02
(1986), at 697. Similarly, the superior court, in appointing a
guardian, should have had in mind similar considerations, which
would include the parents' ability to provide for their children
once the legal proceedings were resolved. The obvious connection
between ordering the parties to spend any more money, and their
subsequent ability to care for the children should have been
considered by the superior court.
Second, as Tom Berry observes, the children's interests
in the appeal were aligned with those of their father. A proper
consideration of the children's needs for representation in the
first appeal should have revealed this fact. As we observed in
Veazey v. Veazey, 560 P.2d 382 (Alaska 1977), "[T]here will be
many custody cases in which a guardian will not be needed, and in
such cases neither the statute, the court rules, nor our
decisions compel the court to waste its time and money, as well
as that of the parties and counsel, in employing one." Id. at
385 (Alaska 1977). The superior court had followed the
guardian's custodial recommendations, and accordingly, Tom Berry
would be defending the guardian's custodial recommendations.
Berry argues that in his opposition to Rich's motion for costs,
he had observed that his own counsel necessarily would be
defending the superior court's decision. The factual record
already was developed fully.
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