GAL
Fees Case Analysis
Dec.
21, 2005
The
effect of the decision is to increase the likelihood that attorneys appointed
as guardian ad litems will get paid, at least some of their fees, and shifting
part of the risk that the nonprevailing party will not make court-ordered payments
to the prevailing party, away from the attorney.
Pursuant
to sec. 767.045(6), the court could have held that Vangelos should pay the entire
GAL fee, rather than splitting the obligation between the two parents and then
holding that Vangelos must reimburse Bernier for his half of the payment.
From
a GAL’s perspective, however, the approach the court endorses is preferable.
Suppose
the prevailing party is financially secure, but the nonprevailing party has no
money. If the circuit court orders the nonprevailing party to pay the entire GAL
fee, the GAL will either not get paid, or will only get paid slowly over time.
Under
the court’s procedure, the GAL will at least get paid half of the fee promptly
in this situation, although the GAL will still have to try to get the other half
from the nonprevailing party. The prevailing party is burdened with the task of
obtaining reimbursement for the other half that he paid for the GAL’s services.
An interesting
question is who should get paid first.
Suppose
the GAL’s fee is $2,000. The court orders the parties to each pay half, and
pursuant to this case, that the nonprevailing party reimburse the prevailing party
for his share. The prevailing party promptly pays his $1,000.
Both
the prevailing party and the GAL then seek an order that the nonprevailing party
pay them $1,000, but the court determines that the nonprevailing party has no
money and can only afford to pay $100 per month. Should the GAL be paid off first,
or the prevailing party, or should they each get $50 per month?
Presumably,
it is the GAL who should get paid first, consistent with the court’s policy
decision to protect, where possible, that a GAL gets paid his fees.
-
David Ziemer
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David
Ziemer can be reached by email.
