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Justices differ on reasonableness of GAL fees

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If two parties in a domestic relations dispute sign a written contract to retain the services of a guardian ad litem, then the trial court must enforce the terms of the agreement unless it is contrary to public policy, the Indiana Supreme Court ruled Friday.

In In re the paternity of N.L.P; R.P., v. L.S. n/k/a L.B., No. 45S03-0904-JV-133, guardian ad litem Jill S. Swope challenged the trial court’s reduction of her GAL fees from $34,800 to $20,000 for work she did from 2004 to 2008 for parents R.P. and L.S. The parents executed a joint written agreement to hire Swope as the GAL to help resolve existing visitation and parenting issues. The written agreement outlined the hourly fee of $150 and that the parents would pay for various expenses such as long-distance phone calls.

The trial court found Swope’s original fees to be unreasonable because she charged for phone calls and other things that should have been included in the hourly rate; the parents may not have the ability to pay those fees; and some of her services duplicated services done by the court-appointed custody evaluator.

The Indiana Court of Appeals vacated the trial court’s decision and remanded for the trial court to support its determination that the $20,000 fee was reasonable. The COA sua sponte ruled the fees were unreasonable because Swope acted as a GAL and attorney, and that she should have billed her work separately.

In this issue of first impression, the majority of justices found the focus on the reasonableness of the GAL fees to be misplaced. The clients didn’t contest Swope’s bill and entered into a contract to set the hourly rate and fees she could charge, wrote Justice Robert Rucker.

There is a strong presumption in the enforceability of private contracts unless the contracts somehow violate public policy grounds, but that isn’t the case here, the justice continued.

“We see no basis for the trial court to modify the terms of the parties’ agreements,” he wrote.

The trial court erred by not enforcing the term of the parties’ written agreements. The justices also noted they disagreed with the COA that someone acting as a GAL and attorney should bill separately for services and by not doing so, that renders the fees unreasonable.

Justice Theodore Boehm agreed with his colleagues that the parties’ hourly rate and reimbursement for incidental expenses are presumptively enforceable, but he agreed with the COA that the trial court may review the reasonableness of services rendered.

“Even if the hourly rate agreed is reasonable, a fee agreement is not a blank check for the attorney to fill in the amount of services rendered irrespective of the need for services,” wrote Justice Boehm.

The trial court is in the best position to determine if the services rendered were reasonable or useful, he continued, and whether duplication of services provided were reasonable.
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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