                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 6, 2010 Session

                                    IN RE JOSEPH A.

                 Appeal from the Circuit Court for Hamilton County
                 No. 05-D-0799     W. Jeffrey Hollingsworth, Judge


              No. E2009-00924-COA-R3-CV - FILED AUGUST 4, 2010




This proceeding began in the Hamilton County Juvenile Court when the Department of
Children’s Services (“DCS”) filed a petition seeking to have Joseph A. (the “Child”) declared
dependent and neglected based on allegations of abuse committed by Douglas A. (“Father”).
Katheryn B. (“Mother”) was allowed to intervene. A guardian ad litem was appointed on the
Child’s behalf. The Juvenile Court found the Child to be dependent and neglected, and
Father appealed that finding to the Circuit Court. While this case was pending in the Circuit
Court, DCS voluntarily dismissed the original petition. Thereafter, the guardian ad litem
filed a motion seeking payment of attorney fees and costs. The Circuit Court granted this
motion and entered a judgment against DCS for the guardian ad litem’s fees and expenses.
DCS appeals. We vacate the order taxing the guardian ad litem fees and costs against DCS
and remand for further proceedings.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                       Circuit Court Vacated; Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.


Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellant, State
of Tennessee, Department of Children’s Services.


Robert B. Pyle, Chattanooga, Tennessee, Guardian ad Litem.
                                  MEMORANDUM OPINION 1

                                              Background

               Mother and Father were divorced in March of 2002. The Child, their only
offspring, currently is eleven years old. At the time of the divorce, Mother was designated
the Child’s primary residential parent, although she and Father originally agreed to equal co-
parenting time. The relationship between Mother and Father has been and remains
contentious. Prior to and since the granting of the divorce, there have been serious
allegations made with respect to the parenting ability and fitness of both parents. The
technical record in this case consists of over five hundred pages of pleadings and reports by
health care professionals and therapists regarding allegations of abuse toward the Child,
primarily allegations of sexual abuse by Father.

              The present lawsuit involves a petition filed by DCS seeking to have the Child
declared dependent and neglected. While these proceedings were pending in the Juvenile
Court, in November of 2002, DCS requested a guardian ad litem be appointed pursuant to
Tenn. Code Ann. § 37-1-150 and that the guardian be compensated pursuant to that statute
and applicable rules. A few days later, the Juvenile Court appointed a guardian ad litem for
the Child “with the fees to be assessed between the parents at the conclusion.”

             In October 2004, the original guardian ad litem filed a motion seeking to
withdraw from the case because he had secured new employment as a staff member at the
Juvenile Court. The motion to withdraw was granted and pursuant to the Juvenile Court’s
order, the “Office of the Clerk shall appoint a new Guardian ad litem in this matter.”
Although there is nothing in the record to show that a new guardian ever was properly
appointed, Robert B. Pyle (“Pyle”) took over as the Child’s guardian ad litem.

              The Juvenile Court eventually found the Child to be dependent and neglected
based on Father’s alleged conduct, and that finding was appealed by Father to the Circuit
Court for a de novo hearing. In May of 2005, Mother apparently realized that even though
Pyle was acting as a guardian for the Child, no order had been entered officially appointing
Mr. Pyle as guardian ad litem. Mother, therefore, filed a motion which states:



        1
          Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all
judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.”

                                                    -2-
              [P]ursuant to Tenn. Code Ann. § 36-6-101, et seq., [Mother]
              moves the Court to appoint a guardian ad litem to represent the
              interest of the minor child. . . . [Mother] would show that
              Robert B. Pyle had been acting as guardian ad litem for the
              minor child and it would be in the child’s best interest for him
              to continue to do so.

              Two weeks later, the Circuit Court instructed the attorneys in this case to
submit an agreed order appointing Pyle as guardian ad litem. Apparently, no agreed order
ever was submitted, but Pyle continued to act as guardian. While the appeal was pending in
Circuit Court, DCS decided to dismiss its original petition and filed a motion requesting the
Circuit Court grant a dismissal. A hearing was held on the motion to dismiss, following
which the Circuit Court entered an order, as amended, stating as follows:

                     This is an appeal from the Juvenile Court of Hamilton
              County. The State of Tennessee (“the State”) acting through its
              Department of Children’s Services, was the Plaintiff in the
              Juvenile Court proceedings. [Father] was the Defendant in the
              Juvenile Court proceedings and the appellant in this Court.

                     The parties appeared before this Court on October 13,
              2008, at which time the State announced its intention to dismiss
              the petition it had originally filed in the Juvenile Court. The
              Guardian ad Litem and counsel for the mother of the child
              involved objected.

                     Based upon the law and argument of counsel, this Court
              finds the State’s motion to be well founded and therefore,

                     1. it is Ordered that the State’s motion to dismiss its
                     petition is Granted; and

                     2. the State’s petition is hereby Dismissed. (emphasis in
                     the original)

The amended order was entered on December 3, 2008.

              Following entry of the December 3, 2008, order dismissing the State’s petition,
Pyle filed a motion seeking payment of his attorney fees and costs. Pyle sought to have his
fees and expenses allocated between the various parties. Pyle’s motion was filed on January

                                             -3-
5, 2009.2 A hearing was conducted on the motion, following which the Trial Court entered
an order in favor of Pyle which states as follows:

                       This cause came to be heard on the 16 th day of February,
                2009 . . . on the Motion for Fees for the Guardian ad Litem and
                it appearing to the Court that the original action was filed by the
                Tennessee Department of Children’s Services in the Hamilton
                County Juvenile Court where the matter was adjudicated in the
                Department’s favor, appealed by the Appellant to this Court, and
                then was non-suited by the Department which effectively
                dismissed this action and it further appearing that the accounting
                for time and expenses is reasonable and that the Guardian ad
                Litem should be paid $6,280.00 for fees incurred and $87.96 to
                reimburse his expenses.

                        It is therefore ORDERED, ADJUDGED and DECREED
                that a judgment for these costs be and hereby [is] entered against
                the Tennessee Department of Children’s Services in favor of the
                Guardian . . . in the amount of $6,367.96 for which execution
                may issue [if] necessary. . . .

              DCS appeals claiming the Trial Court “erroneously assessed the Guardian ad
Litem’s attorney fees against the State because it lacked any constitutional or statutory
authority to do so.” 3

                                               Discussion

              The factual findings of the Trial Court are accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence
preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,
727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de
novo standard of review, according no deference to the conclusions of law made by the lower
courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001).


        2
          This motion was filed 33 days after entry of the amended order dismissing the petition. Thirty days
after entry of the amended order would have been Friday, January 2, 2009.
        3
         The parties to this appeal are only DCS and the Guardian ad Litem. Neither Mother nor Father
were required to or did file a brief.

                                                    -4-
               This appeal is significantly complicated by the fact that there is no order
appointing Pyle as the guardian ad litem in the record. The reason for this is no such order
ever was filed in either the Juvenile Court or Circuit Court, although there is no doubt that
everybody understood that Pyle was acting as guardian. Thus, we cannot be certain pursuant
to which statute or rule Pyle was appointed as guardian. This is important because it could
affect the procedure under which Pyle is to seek payment for his fees and expenses. For
example, if the parents were deemed indigent and Pyle was appointed pursuant to Tenn. Code
Ann. § 37-1-149, then he would need to seek payment of his fees in accordance with Rule
13 of the Rules of the Supreme Court. See Tenn. Code Ann. § 37-1-150(a)(3) (the state shall
pay for the guardian ad litem when the parents are indigent and the “supreme court shall
prescribe by rule the nature of the expense for which compensation may be allowed . . . .”).
We note that when DCS originally requested appointment of a guardian, it requested that the
guardian’s fees be paid by the state in accordance with the above statute and applicable rules,
presumably including Supreme Court Rule 13.

               Although not entirely clear, it appears on appeal that Pyle is seeking payment
of his fees pursuant to Tenn. R. Civ. P. 17.03, which provides as follows:

                      17.03. Infants or Incompetent Persons. – Whenever an
              infant or incompetent person has a representative, such as a
              general guardian, conservator, or other like fiduciary, the
              representative may sue or defend on behalf of the infant or
              incompetent person. If an infant or incompetent person does not
              have a duly appointed representative, or if justice requires, he or
              she may sue by next friend. The Court shall at any time after the
              filing of the complaint appoint a guardian ad litem to defend an
              action for an infant or incompetent person who does not have a
              duly appointed representative, or whenever justice requires. The
              court may in its discretion allow the guardian ad litem a
              reasonable fee for services, to be taxed as costs. (emphasis
              added)

            If his fees can be taxed as costs against DCS pursuant to this rule, then Pyle
must comply with Tenn. R. Civ. P. 54.04 which states, in relevant part, that:

                     54.04 Costs.– (1) Costs included in the bill of costs
              prepared by the clerk shall be allowed to the prevailing party
              unless the court otherwise directs, but costs against the state, its



                                              -5-
              officers, or its agencies shall be imposed only to the extent
              permitted by law.

                     (2) Costs not included in the bill of costs prepared by the
              clerk are allowable only in the court’s discretion. Discretionary
              costs allowable are: . . . guardian ad litem fees . . . . Subject to
              Rule 41.04, a party requesting discretionary costs shall file and
              serve a motion within thirty (30) days after entry of judgment.
              The trial court retains jurisdiction over a motion for
              discretionary costs even though a party has filed a notice of
              appeal. The court may tax discretionary costs at the time of
              voluntary dismissal. . . . (emphasis added)

              On appeal, DCS argues, among other things, that if Pyle is seeking payment
of fees pursuant to Rule 54.04, and even assuming DCS can be made to pay guardian ad
litem fees pursuant to that rule, Pyle’s motion nevertheless was not timely filed because it
was filed 33 days after entry of the final judgment. DCS never raised this issue before the
Trial Court.

               The typical manner for a guardian ad litem to seek payment of fees by the state
is through Rule 13 of the Rules of the Supreme Court. However, there is nothing in the
record to indicate that Pyle ever sought payment pursuant to Rule 13. Because we cannot
determine pursuant to what authority Pyle actually was appointed, we cannot determine if he
should have sought payment in accordance with Rule 13 and whether his fee request would
have been capped pursuant to that Rule. Based on the record, it appears that Pyle was
seeking payment through Tenn. R. Civ. P. 54.04, which requires the request be filed within
thirty days of entry of the final judgment, which it was not. The Circuit Court’s order is
unclear as to whether it was awarding fees pursuant to Rule 54.04 and does not address
whether the state can be required to pay guardian ad litem fees pursuant to that rule.

                Because we cannot ascertain the statute or rule pursuant to which Pyle was
appointed guardian ad litem, and because we cannot determine which statute or rule was
utilized by the Circuit Court when awarding Pyle his fees and expenses, we vacate the Circuit
Court’s judgment against DCS and remand this case to the Circuit Court for resolution of
these issues. In so doing we note that “[t]he first consideration in determining if [guardian
ad litem] fees can be charged against a state agency is that the statutory power to assess costs
against the state is in derogation of the state’s sovereignty and must be strictly construed.”
See Matter of Harris, 849 S.W.2d 334, 336 (Tenn. 1993).

              We express no opinion on any remaining issues raised by either DCS or Pyle.

                                              -6-
                                       Conclusion

               The judgment of the Trial Court is vacated and this cause is remanded to the
Circuit Court of Hamilton County for further proceedings consistent with this Opinion and
for collection of the costs below. Exercising our discretion, costs on appeal are taxed one-
half to the Appellant, State of Tennessee, Department of Children’s Services, and one-half
to the Appellee, Robert B. Pyle, for which execution may issue, if necessary.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                            -7-
