Prevailing
party entitled to GAL fees
By
David Ziemer
Wisconsin Law Journal
Dec.
21, 2005
| What
the court held Case:
In re the Marriage of: Bernier v. Bernier, No. 2004AP625. Issue:
In an enforcement action under sec. 767.242, is a successful petitioner entitled
to reimbursement of his share of the GAL fees from the interfering parent? Holding:
Yes. Shifting the GAL fees to the interfering parent furthers the legislative
purpose of creating a disincentive to interference with placement rights. Counsel:
Lauri Roman, Madison, for appellant; Margit Sandor Kelley, Madison; Daphne Webb,
Madison, for respondent. |
The
Wisconsin Court of Appeals held on Dec. 15 that a parent who successfully enforces
his physical placement rights is entitled to recover any guardian ad litem (GAL)
fees attributable to him from the parent who interfered with those rights.
Michelle
Vangelos and Michel Carey Bernier were divorced in 2000, and the judgment of divorce
provided that Vangelos could remove the parties’ two children from Wisconsin
to reside with her in California. The judgment also set forth periods of physical
placement with Bernier.
In
March 2003, Vangelos informed Bernier she would not be sending their son for the
Easter 2003 placement and she was placing limitations on their daughter’s
placement with him during the same time period. Bernier sought and obtained an
injunction ordering the children be placed with him during the school vacation.
Dane
County Circuit Court Judge Maryann Sumi found that Vangelos unreasonably denied
and interfered with Bernier’s court-ordered physical placement rights and
unreasonably interfered with his rights by changing the children’s last names.
Sumi
also awarded Bernier attorney fees and costs of $11,700 (he had requested $26,922),
and ordered the parties to equally share the GAL fees.
Bernier
appealed the orders on the attorney fees and GAL fees, and the court of appeals
reversed in a decision written by Judge Paul B. Higginbotham and joined by Judge
Charles P. Dykman. Judge David G. Deininger dissented.
The
court held that a circuit court is required to award GAL fees to a prevailing
petitioner in a sec. 767.242 physical placement enforcement proceeding as part
of the “cost of maintaining an action under this section.”
Section
767.242(5)(b)1.b. provides that a circuit court shall “[a]ward the petitioner
a reasonable amount for the cost of maintaining an action under this section and
for attorney fees.” The court concluded that, given the remedial and fee-shifting
nature of the statute, the legislature intended that “costs” include
GAL fees.
The
court reasoned, “The purpose of Wis. Stat. sec. 767.242(5)(b)1.b. is to provide
a financial disincentive to custodial parents who interfere with the physical
placement rights of the non-custodial parent and to enable and encourage the aggrieved
parent to seek enforcement assistance by the court system. Vangelos’s interpretation
… would be contrary to the legislature’s intent to provide a more robust
mechanism to enforce a parent’s physical placement rights. By not awarding
guardian ad litem fees to a successful party in a sec. 767.242 proceeding, that
parent would be required to shoulder part of the cost to vindicate his or her
physical placement rights. In short, rather than creating an incentive to parents
to exercise their physical placement rights, a wronged parent would be put in
the position of footing a portion of the bill for enforcing those rights.”
The
court noted that sec. 767.045(6) provides, in relevant part, “[t]he court
shall order either or both parties to pay all or any part of the compensation
of the guardian ad litem.”
Harmonizing
the two statutes, the court concluded, “The court’s discretionary authority
in allocating guardian ad litem fees under sec. 767.045(6) is not affected by
the requirement under sec. 767.242(5)(b)1.b. that a prevailing party be awarded
his or her guardian ad litem fees as part of the statute’s broad remedial
package. The circuit court would simply be required to apply its discretionary
authority in allocating guardian ad litem fees within the context of the fee-shifting
mechanism under sec. 767.242(5)(b)1.b.”
Explaining
further, the court wrote, “The result of our analysis is that, pursuant to
Wis. Stat. sec. 767.045(6), a circuit court may allocate guardian ad litem fees
between the parties when it makes a finding that a respondent has intentionally
and unreasonably denied physical placement or interfered with the petitioner’s
periods of physical placement. But when it makes one or both of those findings,
the court must then award the petitioner whatever amount it has allocated to the
petitioner.”
The
court acknowledged that the procedure could prove “cumbersome,” noting,
“Admittedly, this procedure may burden a wronged petitioner where a respondent
will not pay ordered guardian ad litem fees. In that instance a contempt order
may issue, protecting the wronged parent to the greatest extent possible under
the circumstances.”
Nevertheless,
the court concluded, “this approach assists in protecting, where possible,
fees a guardian ad litem reasonably expects will be paid.”
Turning
to the award of attorney fees, the court concluded that the circuit court unreasonably
exercised its discretion in reducing the award, and remanded to determine whether
Vangelos caused the dispute to “balloon out of control.”
The
Dissent
Judge
Deininger dissented, concluding that GAL fees are not a “cost of maintaining
an action,” within the meaning of sec. 767.242(5)(b)1.b.
Deininger
concluded, “Because guard-ian ad litem fees are statutorily excluded from
being a taxable litigation ‘cost,’ if the legislature intended guardian
ad litem fees to be awardable as a ‘cost of maintaining an action’ under
Wis. Stat. sec. 767.242(5)(b)1.b., it should have expressly said so. This is especially
true given that the legislature was well aware that guardian ad litem fees will
often be incurred in an enforcement action under sec. 767.242. See sec. 767.242(5)(a)
(‘The judge or circuit court commissioner may, on his or her own motion or
the motion of any party, order that a guardian ad litem be appointed for the child
prior to the hearing.’).”
Deininger
also dissented from the majority’s discussion of attorney fees, finding that
the circuit court reached a reasonable conclusion.
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David
Ziemer can be reached by email.
