Small v. Piper ( 2004 )

PER CURIAM:

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Paul C. Small and Joselene S. Small,        Plaintiffs,

v.

Nicole C. Piper, Defendant,

Nicole D. Kane Piper f/k/a Nicole Denise Weaver, Plaintiff,

v.

Robert Eugene Weaver and Joselene S. Small, Defendants,

And Joselene S. Small, Cross-Plaintiff,

v.

Curtis Piper, Cross-Defendant,

Of Whom Joselene S. Small is the Appellant.

And Nicole C. Piper and Curtis Piper are the Respondents.

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Appeal From York County
Robert E. Guess, Family Court Judge

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Unpublished Opinion No. 2004-UP-407
Submitted April 6, 2004 – Filed June 23, 2004
Revised & Refiled September 10, 2004

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AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

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John D. Elliott, of Columbia, for Appellant. 

Nicole and Curtis Piper of York, Respondents.

PER CURIAM:  Joselene S. Small appeals the family court’s order requiring her to pay one-half of the guardian ad litem’s (Guardian’s) fees, one-half of the guardian’s attorney’s fees, and a substantial portion of Nicole and Curtis Piper’s attorney’s fees.  We affirm in part, reverse in part, and remand. [1]

FACTS

Nicole Piper and Robert Weaver were divorced in 1993.  Piper was granted custody of the parties’ two minor children with visitation rights for Weaver.  In 1996, Weaver’s visitation was restricted to permit visits only under the supervision of the children’s paternal grandparents, Joselene and Paul Small. Later that year, Weaver was incarcerated and the family court issued a temporary order allowing the Smalls to continue visitation.  The Smalls exercised this visitation until Weaver was released from prison in 1997.  Afterward, Weaver resumed visitation supervised by the Smalls. 

In 2000, Piper brought this action against Weaver and Joselene Small to suspend visitation.  Weaver and Small counterclaimed for custody and requested Piper be held in contempt for refusing to allow visitation.  The court appointed a guardian ad litem to represent the interests of the children.  The guardian hired an attorney to represent her.

The family court’s final order terminated Small’s visitation and suspended Weaver’s pending a determination if it would be in the best interest of the children for his visits to resume.  The court also found Piper’s decision to stop the visitation was not contemptuous.  The order required Small and Piper to each pay one-half of the fee awarded to the guardian and one-half of the guardian’s attorney’s fees.  The court also required Small to pay a substantial portion of attorney’s fees incurred by Piper and her husband. 

DISCUSSION

In appeals from the family court, we may find the facts in accordance with our own view of the preponderance of the evidence.  This broad scope of review does not, however, require us to disregard the findings of the family court judge, who saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Hollar v. Hollar, 342 S.C. 463, 472, 536 S.E.2d 883, 887 (Ct. App. 2000). 

I.  Guardian’s Authority to Hire an Attorney

Small contends the family court erred in awarding attorney’s fees to the guardian’s attorney, arguing the guardian improperly retained counsel without obtaining prior authorization from the family court.  We disagree.

At the time this case was before the family court, there was no requirement for a guardian to seek prior approval from the court before retaining counsel. [2]   However, Rule 12, SCRFC provides that “[i]f a guardian ad litem is represented by an attorney, the court in its discretion may assess reasonable attorneys’ fees and costs.”  Accordingly, if the guardian ad litem did not seek and obtain prior approval from the court for the hiring of an attorney, then the guardian assumed the risk that the court might not allow a fee.  In this case, the court subsequently approved the attorney’s hiring and awarded modified fees, exercising its inherent power to protect the best interests of the children and its discretionary authority under Rule 12. 

After Small complained in a pre-trial motion that counsel for the guardian was not authorized, the court responded by issuing an order requiring the guardian’s attorney to participate in the action.  In the final order, the court addressed Small’s concern directly, stating:

In making this award, the Court is cognizant of the fact that the Guardian ad Litem retained [counsel] without prior approval of the Court.  It should be noted that a Guardian ad Litem will not in all instances be awarded attorney’s fees unless the Court has approved the appointment of such an attorney.  The Court has decided to award an attorney’s fee . . . because the issue of whether or not he was to be involved in this case has been dealt with in a pre-trial motion by [Small’s] attorney.  After that motion, the Order issued did not relieve [counsel] of his duties but, to the contrary, gave [him] [a specific duty] . . . . [T]he Court has come to the conclusion that [counsel’s] involvement in this case was necessary and that he did so as an advocate for the best interest of the children.

In light of the family court’s requirement that the guardian’s counsel participate in the case and the final order stating his involvement was necessary, we conclude the court did not abuse its discretion in making an award. 

A guardian ad litem is entitled to compensation for his services and reimbursement for necessary expenses.  South Carolina Dep’t of Soc. Servs. v. Hyatt, 277 S.C. 152, 154, 283 S.E.2d 445, 446 (1981).  “In fixing the amount of compensation to be paid to a guardian ad litem, a court should consider the character of the litigation, the issues involved, the services performed, the care and diligence exhibited, and the results achieved.”  Id.  This court will not disturb the amount of a fee award to a guardian ad litem absent an abuse of discretion.  Nash v. Byrd, 298 S.C. 530, 537, 381 S.E.2d 913, 917 (Ct. App. 1989).  Likewise, we recognize that an award for attorney’s fees is left to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.  Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988).

In a temporary order, the family court required Small, Piper, and Weaver to each contribute $700 toward the guardian’s anticipated fees and costs.  The $2,100 was paid into the trust account of Weaver’s attorney who was to pay the guardian’s bills unless one of the parties objected.  The guardian was required to provide copies of her monthly billing statements to each of the parties. 

Weaver’s attorney paid the guardian’s first invoice in full.  There is no evidence in the record to indicate Small objected to this initial payment.  The guardian submitted three more bills that remained unpaid at the time of the final order. 

In its final order, the family court awarded the guardian additional fees and costs of $2,395.30 based on the last three unpaid invoices, and attorney’s fees of $6,348.40.  The court also approved the previously paid invoice of $1,531.20 as billed. [3]   Small was required to pay one-half of the additional fee awarded to the guardian and one-half of the guardian’s attorney’s fees, for a total of $4,371.85. 

In making the fee award to the guardian, the court reduced her hourly rate by $10 from the amount requested.  The court made the reduction after considering the absence of overhead and other business expenses, as well as the intensity and urgency of the work required.  The court stated it reviewed the entire file as well as the guardian’s bills and concluded all of the billed time was compensable and was necessarily spent fulfilling duties and acting in the best interest of the children.  The family court noted the guardian worked with speed and diligence and had, through her efforts to promptly secure court-ordered psychological evaluations, moved the case toward a timely resolution.  Finally, the court expressly noted it had “taken into consideration to a large extent the financial condition of the parties . . . and the other fees and expenses each must necessarily pay as a result of the litigation.”  The family court relied upon the detailed invoices submitted by the guardian and considered all relevant factors when making the compensation award.  Accordingly, we find no abuse of discretion in the amount of the fee awarded. 

The court also found the guardian would not have been able to effectively fulfill her duty as an advocate for the best interest of the children without the assistance of counsel. However, in making the award of attorney’s fees, the court reduced counsel’s hourly rate substantially, from $150 to $90 per hour based on:  1) the relative inability of the parties to pay the approximately $10,500 fee requested in his affidavit and billing statement; 2) application of the factors outlined in Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991), including an evaluation of the difficulty of the case; and 3) findings that a significant amount of counsel’s billed time arose from hearings that required minimal participation and preparation.  Finally, the court granted the parties six months from the date of the order to pay the attorney’s fees or make arrangements for terms with the guardian’s counsel.  The court relied upon the affidavit of counsel and adequately considered the Glasscock factors.  Therefore, we find no abuse of discretion in the amount of attorney’s fees awarded. 

III.  Award of Attorney’s Fees and Costs to Nicole and Curtis Piper

Finally, Small contends the family court erred in awarding attorney’s fees and costs to Nicole and Curtis Piper without making specific findings to support the awards and without properly considering the Glasscock factors.  Small also argues the family court should have considered her ability to pay.  We agree. 

When a court decides whether to award attorney’s fees it should consider the parties’ ability to pay their own fees, the beneficial results obtained by counsel, the respective financial conditions of the parties, and the effect of the fee award on each party’s standard of living.  E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).  When the court sets the amount of the fee award, it must also consider the nature, extent, and difficulty of the services rendered, the time necessarily devoted to the case, counsel’s professional standing, the contingency of compensation, the beneficial results obtained, and the customary legal fees for similar services.  Glasscock, 304 S.C. at 161, 403 S.E.2d at 315.  It is insufficient for a court to make a general reference to these requirements without more.  If there is inadequate evidentiary support for the factors to be considered in making such an award, the appellate court should reverse and remand for the family court to make specific findings.  Haselden v. Haselden, 347 S.C. 48, 66, 552 S.E.2d 329, 338 (Ct. App. 2001). 

The family court awarded the Pipers a total of $13,619 in attorney’s fees and costs.  The order required Small to make full payment in equal monthly installments within thirty-six months beginning sixty days from the date of the final order.  In making the award, the court did not consider the factors enunciated in E.D.M. v. T.A.M., 307 S.C. at 476-77, 415 S.E.2d at 816.  Moreover, the court failed to make any specific findings under Glasscock, stating only that the award was made “after considering all requirements of the Glasscock case.” 

We recognize Nicole Piper prevailed in her claim for termination of Small’s visitation and successfully defended against Small’s cross-claims.  We are also aware the family court concluded Curtis Piper was, contrary to Small’s contentions, a fit and proper parent. However, the award of attorney’s fees to the Pipers fails to take into consideration Small’s ability to pay the amounts awarded and is not supported by specific findings of fact. 

Under the terms of the order, Small is required to pay a total of  $20,055.35 in fees and costs.  According to her financial declaration, her own attorney’s fees exceeded $19,000.  She and her husband are retired and live on a combined gross annual income of $27,360. Small’s personal retirement income nets slightly over $1,000 per month.  Even with the payment schedules established by the order, Small is required to pay the psychologist and guardian approximately $3,000 immediately.  She then has a six-month grace period to arrange payment terms with the guardian’s counsel for payment of the additional $3,174.20.  Sixty days after the date of the final order, she is required to start making at least thirty-six equal monthly payments of $377.77 to satisfy her portion of the Pipers’ attorney’s fees. [4]   In light of these facts, we conclude the additional attorney’s fees awarded to the Pipers requires analysis under the E.D.M. v. T.A.M. factors.  We further find the family court failed to properly consider the Glasscock factors when setting the amount of the award. Accordingly, we reverse and remand this issue with specific instructions to allow additional evidence on the issue of the appropriateness and amount of attorney’s fees and to make specific findings of fact as to each of the six Glasscock factors.

CONCLUSION

We find the family court properly approved of the guardian’s decision to obtain counsel, and affirm the award of attorney’s fees.  We also affirm the amount of fees awarded to both the guardian and her counsel.  We reverse the award of attorney’s fees to Nicole and Curtis Piper and remand this issue for re-determination under the factors enunciated in Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991), and E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.

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[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]         In 2002, the legislature passed the South Carolina Guardian Ad Litem Reform Act.  The Act was codified into law in January 2003 and is not applicable to this case.  See S.C. Code Ann. §§ 20-7-1545 to 20-7-1557 (Supp. 2003).

[3]        The guardian received total compensation of $3,926.50.  This was $902 less than the total amount of her invoices. 

[4]         We are unable to determine the Pipers’ financial condition, ability to pay their own attorney’s fees, or the effect of payment on their standard of living because, contrary to the index listing, the record does not contain their financial declaration.  In its place is a financial declaration for Paul Small.