Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANT: JILL S. SWOPE Sterba & Swope, LLP Schererville, Indiana

FILED
Dec 23 2008, 8:51 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF N.L.P., ) ) ROBERT S. PENDOWSKI, ) ) Appellee-Petitioner, ) ) vs. ) ) LISA A. SIZEMORE n/k/a ) LISA A. BRANDENBERG, ) ) Appellee-Respondent, ) _________________________________________ ) ) JILL S. SWOPE, ) ) Appellant-Guardian Ad Litem. )

No. 45A03-0805-JV-226

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Elizabeth F. Tavitas, Special Judge Cause No. 45D06-0006-JP-467

December 23, 2008 OPINION - FOR PUBLICATION KIRSCH, Judge

Jill S. Swope appeals the trial courts award of her fees for acting as the Guardian Ad Litem ("GAL") in the paternity case of N.L.P. between Robert S. Pendowski ("Father") and Lisa A. Sizemore, n/k/a Lisa A. Brandenberg ("Mother"). Swope raises the following restated issue: whether the trial court erred when it failed to award her total fees and expenses incurred while serving as GAL. We vacate and remand with instructions. FACTS AND PROCEDURAL HISTORY This appeal originates from proceedings that followed Fathers petition to establish paternity of N.L.P. Once paternity was established, problems arose between Mother and Father regarding visitation and parenting. After Father filed a petition for contempt citation against Mother, a joint petition for GAL was filed by the parties on February 2, 2004, which requested that the trial court appoint Swope as GAL in the paternity matter. An order appointing Swope as GAL was entered the same day. At the time of Swopes appointment, the parties executed engagement agreements with her, which outlined the terms of the GALs services, including the hourly billing rate, that the parties would be billed per quarter hour, and that they would be billed for expenses such as long-distance calls, postage, fax charges, photocopies, and other necessary charges. Appellant's App. at 278-79. Swope remained involved in the paternity matter from the time of her appointment until her requested release on March 6, 2008. During this more than four-year period, she prepared and submitted two court-ordered GAL reports; made multiple home visits to both parents households; supervised parenting time on more than one occasion; supervised

2

parenting exchanges under order of the court; made a visit to N.L.P.s school; reviewed parenting time records and video/audio recordings; and had conversations with therapists, school officials, teachers, law enforcement personnel, Department of Child Services personnel, staff at the supervised parenting time facility, the custodial evaluator, both parents, N.L.P., and other family members. Swope also reviewed criminal investigation records, medical records, school records, therapy records, and other documents provided by the parents. Additionally, as part of her GAL responsibilities, she prepared and submitted several pleadings on behalf of N.L.P., which addressed a lack of contact between N.L.P. and Father. Further, she prepared for and attended hearings on multiple occasions including the six-day hearing in 2007 on all pending matters, in which she participated through testimony as well as cross-examination of witnesses. On May 23, 2007, at the conclusion of the first day of the hearing on all pending matters, the trial court requested that Swope submit a summary GAL report regarding her recommendations, and a discussion occurred regarding the outstanding balance for Swopes GAL services. The trial court ordered her to do the summary report and to produce a bill for her services before the next hearing date, with which Swope complied. Additional testimony was heard in this matter on July 6, 2007, September 14, 2007, September 28, 2007, and October 23, 2007. On the final day of the hearing, Swope submitted her Request for GAL Fees, which established that as of October 23, 2007, the total sum of incurred fees and expenses was approximately $34,800.00, for which she had received payments from Father totaling $11,480.80 and from Mother totaling $2,678.32. GAL's Ex. BBB; Tr. at 425-27.

3

On December 27, 2007, the trial court issued its order, which found that "although the GAL has conducted a thorough investigation, the GAL fees are not reasonable." Appellant's App. at 18. The trial court based this finding on the following: (1) the fact that the GAL charges by the quarter hour and not by the tenth of an hour; (2) charges for long-distance calls, copying, and faxing should have been included as overhead; (3) the income of the parties and their ability to pay; and (4) some of the GALs services were duplicitous of those performed by the custodial evaluator. Id. at 18-19. The trial court reduced the total GAL fees to $20,000.00 and ordered each party to be responsible for half of the total fees. Swope filed a motion to correct error on January 28, 2008, which was denied by the trial court. However, at the hearing on the motion to correct error, the trial court admitted that it was error for it to find that Swopes billing by the quarter hour was unreasonable. Tr. at 473, 490. Swope now appeals. DISCUSSION AND DECISION We review a trial courts denial of a motion to correct error for an abuse of discretion. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial courts decision is against the logic and effect of the facts and circumstances before it, or the reasonable inferences drawn therefrom. Id. Swope argues that the trial court erred when it failed to award her the total fees and expenses that she incurred in her appointment as GAL in this paternity matter. She specifically contends that it was not unreasonable for her to charge for long-distance telephone expenses or for copying and faxing costs and that it was improper for the trial court

4

to reduce the fee award based upon the belief that her GAL services were duplicitous of the services of the custodial evaluator. She also claims that it was improper for the trial court to reduce her fees based upon the parents perceived ability to pay or their socioeconomic status and asserts that it was a violation of the Equal Protection Clause of the United States Constitution to expect the GAL to alter her representation of the best interests of the child based upon the financial circumstances of the parents. Initially, we note that no appellees brief was filed in this appeal. In such a situation, we will not undertake the burden of developing arguments for the parents. Cox v. Cantrell, 866 N.E.2d 798, 810 (Ind. Ct. App. 2007), trans. denied. We apply a less stringent standard of review, and we may reverse the trial courts decision if the appellant can establish prima facie error. Id. Prima facie means "at first sight, on first appearance, or on the face of it." Id. In Indiana, a child is considered a necessary party to a paternity action. Ind. Code

Download In re: The Paternity of N.L.P..pdf

Indiana Law