                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 16, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-50473
                          Summary Calendar



METROPOLITAN LIFE INSURANCE COMPANY,

                                    Plaintiff-Appellant,

versus

MAURA BISCHOFF, ET AL.,

                                    Defendants,

SEAN PETRIE as Guardian Ad Litem,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:03-CV-102-SS
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Metropolitan Life Insurance Company (“MetLife”) appeals the

district court’s award of attorney’s fees and prospective

appellate attorney’s fees to an appointed guardian ad litem, Sean

Petrie, pursuant to 29 U.S.C. § 1132(g)(1).   We review the award

of attorney’s fees for an abuse of discretion.    Wegner v.

Standard Ins. Co., 129 F.3d 814, 820-21 (5th Cir. 1997).


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-50473
                                 -2-

     In considering Petrie’s request for attorney’s fees, the

district court considered and properly applied the five factor

test in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th

Cir. 1980).    The district court did not abuse its discretion in

awarding attorney’s fees based on MetLife’s culpability for the

complexity of the litigation, its ability to pay fees, and the

deterrent effect of such an award on future conduct.     Therefore,

the award of attorney’s fees for Petrie’s efforts in the district

court is AFFIRMED.

     The district court did not explain its decision to award

prospective appellate attorney’s fees to Petrie.     We conclude

that the district court abused its discretion by awarding

prospective appellate attorney’s fees.     The award of prospective

appellate attorney’s fees is VACATED.      Petrie may file a separate

motion in this court seeking appellate attorney’s fees.      See 5TH

CIR. R. 47.8

     AFFIRMED IN PART; VACATED IN PART.
