Prevailing party entitled to GAL fees

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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.”

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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.