J. S62018/16

                             2016 PA Super 232

L.M.P.                                    :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                                          :
            v.                            :
                                          :
E.C.                                      :
                                          :
APPEAL OF: GUARDIAN AD LITEM              :     No. 425 MDA 2016

               Appeal from the Order Entered February 11, 2016
                In the Court of Common Pleas of Berks County
                     Civil Division at No(s): 05-13544 #3

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

OPINION BY DUBOW, J.:                            FILED OCTOBER 26, 2016

       Appellant, Jana R. Barnett, Esquire, Guardian Ad Litem (“GAL”),

appeals from the Order entered on February 11, 2016, in the Berks County

Court of Common Pleas partially granting her Petition for Special Relief, in

which the trial court rejected 79% of Appellant’s request for compensation

for GAL services that she performed over thirty months.          After careful

review, we vacate and remand.

       This highly acrimonious custody litigation began in the Berks County

Court of Common Pleas on August 28, 2008, when L.M.P. (“Mother”) filed in

the trial court a foreign custody Order from Tompkins County, New York. On

August 21, 2013, the trial court appointed Appellant to be the GAL to I.C.

(“Child”), the minor child of Mother and E.C. (“Father”).
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      On August 21, 2013, the trial court entered an Order outlining the

GAL’s duties and responsibilities (“Appointment Order”). In particular, the

Appointment Order, in accordance          with applicable   provisions of the

Pennsylvania Domestic Relations Code, required and authorized the GAL to

(1) meet with child; (2) have full access to the child and to the parties; (3)

have full and unfettered access to relevant court records, evaluations and

reports, and access to school medical and psychological records as deemed

necessary; (4) be present at court proceedings; and (5) prepare a written

report within 60 days of the date of the Appointment Order with

recommendations relating to the best interests of the child.

      The   Appointment    Order   also    established   Appellant’s   rate   of

compensation at $75 per hour for out-of-court time and $100 per hour for

in-court time, and provided for equal payment by Mother and Father. See

Order, 8/21/13.

      During the course of Appellant’s appointment, she sent itemized bills

to the parties on September 24, 2014, June 4, 2015, and January 4, 2016,

in which she accounted for her time.      Neither Mother nor Father disputed

Appellant’s invoices; however, neither remitted payment upon receipt.

      On January 5, 2016, after almost thirty months of service, Appellant

filed a Petition for Special Relief (“Petition”) requesting that the court

authorize the payment of her legal fees and costs that she incurred over the

thirty months that she served as the GAL. Appellant attached to the Petition



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itemized statements for her services and costs, which specified each activity

in which she engaged and the amount of time she spent on the activity. The

invoice totaled $19,529.31, which was broken down as attorneys’ fees of

$18,187.50 and costs of $1,323.00.

        On the same day, January 5, 2016, the trial court terminated

Appellant’s appointment as GAL pursuant to Father’s June 4, 2015 Motion for

Termination of Appointment of GAL.1

        Father   objected   to   Appellant’s   Petition,   claiming   that   he   was

dissatisfied with Appellant’s services, disclosing that he had paid his current

counsel approximately $40,000 for services related to this litigation, and

requesting that the court order Berks County to pay the costs deemed

reasonable.2 Mother, who at the time of the hearing appeared pro se, did

not object to Appellant’s request for compensation, but did contend that

Father should be solely responsible for paying for Appellant’s services.

        On February 11, 2016, the trial court entered an award reimbursing

the Appellant for all of her costs, but only $4,000 of her legal fees. Since

Appellant’s legal fees were $18,187.50 and the court only awarded her

$4,000, the court rejected 79% of Appellant’s legal fees. This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.


1
 The Prothonotary docketed the order terminating Appellant’s appointment
on January 7, 2016.
2
    Father did not disclose the amount that he had paid his previous counsel.



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      Appellant raises one issue in this appeal: Whether the trial court erred

as a matter of law in not authorizing the payment of all of her legal fees.3

See Appellant’s Brief at 2.

      Appellant argues that given the complexity of the case, the obligations

imposed by the Appointment Order, the demands of the parties, and the

obligations imposed by the Guardian Ad Litem for Child Statute, 23 Pa.C.S. §

5334(b), the trial court’s decision was manifestly unreasonable and

constituted reversible error. Id. at 7-17. In light of the fact that the trial

court provided no specific basis to justify rejecting 79% of Appellant’s legal

fees, except for noting the excessive number of entries, and the number of

hours and number of pages in the Appellant’s invoice for legal services, we

agree that the trial court’s award of $4,000 was arbitrary and manifestly

unreasonably.

      When reviewing the propriety of the amount the trial court awards for

statutorily mandated attorneys’ fees, an appellate court uses an abuse of

discretion standard. Sayler v. Skutches, 40 A.3d 135, 139 (Pa. Super.

2012) (citation and quotation omitted).      “We will not find an abuse of

discretion in the award of counsel fees merely because we might have

reached a different conclusion.   Rather, we require a showing of manifest

3
  Appellant does not challenge the portion of the Order awarding the
Appellant costs and no other party challenged the award of costs, so we will
not address the reasonableness of the amount of costs and that portion of
the Order shall remain in effect. This Opinion shall focus exclusively on the
award of attorneys’ fees.



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unreasonableness, partiality, prejudice, bias, ill-will, or such lack of support

in the law or record for the award to be clearly erroneous.” Id.

      The Appointment Order is to be interpreted in accordance with the

Pennsylvania Domestic Relations Code, which includes the Guardian Ad

Litem for Child Statute, 23 Pa.C.S. § 5534. The Guardian Ad Litem for Child

Statute requires and authorizes the GAL to, inter alia, meet with the child,

conduct further investigation, interview potential witnesses, and make

recommendations to the court. See 23 Pa.C.S. § 5534.

      The Guardian Ad Litem for Child Statute also provides that the trial

court “may order a party to pay all or part of the costs of appointing a

guardian ad litem[.]” 23 Pa.C.S. § 5334(e). When considering a petition for

compensation filed by a GAL, the court must consider factors such as the

amount of work performed, the quality of the work, the results obtained,

and the amount of the fees claimed by the GAL as compared to the fees of

the attorneys representing the parties in the matter generally.          In re

Greenlee’s Estate, 146 A.2d 286, 288 (Pa. 1958); In re Kenna’s Estate,

34 A.2d 617, 619 (Pa. 1943); In re Hallstead’s Estate, 12 A.2d 912, 912

(Pa. 1940).

      In this case, Appellant’s Petition included “itemized invoices explaining

what work had been done, the date on which the work had been done, and

the amount of time, if any, billed.” Appellant’s Brief at 9. After reviewing

Appellant’s Petition and supporting documentation, the trial court recognized



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the exemplary manner in which the Appellant served as GAL, the complexity

of the case, the accuracy of her invoices, and that her efforts significantly

contributed to resolution of the litigation:

         Here, we recognize that the GAL was imminently [sic]
         qualified to serve as the child’s Guardian Ad Litem in this
         very difficult case. We do not hesitate to state that the
         GAL fulfilled her responsibilities in an exemplary manner.
         Her claim that she devoted 239 hours in the course of her
         duties as she set forth in her itemized statement is not
         disputed.     We believe the GAL’s efforts significantly
         contributed to the ultimate resolution of the litigation. We
         are grateful for the GAL’s dedication to her [c]ourt
         appointed duties.

Trial Ct. Op., 4/19/16, at 4.

      The trial court, however, concluded that because the GAL’s invoices

were over forty pages long with 538 entries and described 239 hours of

work, the GAL spent too much time performing her services:

         Our decision to reduce the GAL’s request for compensation
         was in no way intended to cast dispersion [sic] on the
         GAL’s character nor to discount the importance of the GAL
         in helping the parties reach a final resolution. The [c]ourt
         has no problem with the quality of services provided;
         rather, the [c]ourt has a problem with the quantity
         of services provided.       The GAL’s “itemization of
         services” is forty (40) pages long with over 538
         entries and describes in detail 239 hours of work.

         We reduced the GAL’s request for compensation because
         we feel she went far beyond her appointed duties and
         therefore her fee is excessive. We appreciate her concern
         for the child’[s] best interest but we cannot agree that it
         required her to devote a total of 239 hours to carry out her
         appointed responsibilities. We concluded that the GAL was
         overzealous and that she devoted an excessive amount of
         time in performing her duties, and much of the work was
         simply unnecessary.


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                                     ***

          . . . [W]e concluded that the GAL was overzealous and
         spent an inordinate amount of time where it was neither
         needed nor justified. . . .

Id. at 5-6 (emphasis added). The trial court supported the conclusion that

the GAL “went far beyond her appointed duties,” with a citation to only one

time entry.    The trial court then rejected 79% of her legal fees and

authorized the payment of $4,000 for legal fees. Id. at 5-6.

      We have reviewed the record as a whole and, in particular the invoices

that the GAL submitted, and conclude that the trial court acted arbitrarily

and palpably abused its discretion in summarily determining that Appellant

spent too     much   time   representing   the   interests of the   Child and,

consequently, was only entitled to be reimbursed for $4000 of her legal fees.

The trial court based its conclusion upon the fact that the GAL’s “itemization

of services is forty (40) pages long with over 538 entries and describes in

detail 239 hours of work.” Id. at 5. The trial court failed to specify not only

the manner in which the trial court arrived at the figure of $4,000, but also

which services comprised the $4,000 figure.

      Additionally, we note that by authorizing payment of $4,000, the trial

court rejected payment of 79% of the services it characterized as

“exemplary.”    However, the trial court failed to explain which of those

services Appellant performed were outside of the scope of the Appointment

Order and the Guardian Ad Litem for Child Statute.


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      We, therefore, vacate the trial court’s February 11, 2016 Order.

Since the trial court already found that the GAL actually spent the time listed

on her invoices and that she performed the work in an exemplary manner,

we remand the matter to the trial court to hold a hearing to determine for

each time entry: 1) whether the Appointment Order or Guardian Ad Litem

for Child statute, 23 Pa.C.S. § 5334(b), authorized the work; and 2) the

reasonableness of the time spent on each time entry.

      Order vacated.   Case remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




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