JOHN P. MCCARTY, SECRETARY FINANCE AND ADMINISTRATION CABINET COMMONWEALTH OF KENTUCKY v. LARRY MILLER, JUDGE POWELL CIRCUIT COURT AND LYNDON WOODROW PELFREY
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RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001701-OA
JOHN P. MCCARTY, SECRETARY
FINANCE AND ADMINISTRATION CABINET
COMMONWEALTH OF KENTUCKY
PETITIONER
ORIGINAL ACTION
REGARDING POWELL CIRCUIT COURT
v.
LARRY MILLER, JUDGE
POWELL CIRCUIT COURT
RESPONDENT
AND
LYNDON WOODROW PELFREY
REAL PARTY IN INTEREST
* * * * * * * *
OPINION AND ORDER
GRANTING CR 76.36 RELIEF
BEFORE:
EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
The Court has considered the petition for writ
of prohibition to which no response was filed and, being
otherwise sufficiently advised, ORDERS the petition be GRANTED.
Petitioner seeks an order from this Court prohibiting
the respondent trial court from enforcing provisions of orders
entered May 19, 1999, and June 24, 1999, in the case of Jackie
Rose Pelfrey v. Lyndon Woodrow Pelfrey, Powell Circuit Court
Action No. 98-CI-00134, directing Commonwealth of Kentucky,
Finance and Administration Cabinet, to pay the sum of $454.25 to
attorney Del W. Miller for his services as guardian ad litem for
Lyndon Woodrow Pelfrey.
Petitioner contends that it lacks the
required legal authority to pay guardian ad litem fees for the
representation of an incarcerated person in a divorce action.
We
agree.
In its order of June 24, 1999, the respondent trial
court determined that petitioner was responsible for payment of
the guardian ad litem fee on behalf of a prisoner pursuant to
Rule of Civil Procedure (CR) 17.04.
That Rule provides as
follows:
(1) Actions involving adult prisoners
confined either within or without the State
may be brought or defended by the prisoner.
If for any reason the prisoner fails or is
unable to defend an action, the court shall
appoint a practicing attorney as guardian ad
litem, and no judgment shall be rendered
against the prisoner until the guardian ad
litem shall have made defense or filed a
report stating that after careful examination
of the case he or she is unable to make
defense.
(2) Fees allowed to counsel appointed to
represent prisoners as respondents in
dependency, abuse or neglect cases, or in
parental rights termination cases, under the
Juvenile Code, shall not exceed the amounts
specified in KRS 620.100 or KRS 625.080.
Counsel fee awards shall not exceed the
statutory maximum, regardless of the number
of persons represented in a proceeding by the
counsel.
Petitioner recognizes that it is statutorily required
to pay fees for guardians ad litem who are appointed pursuant to
KRS 620.100 and KRS 625.080.
Petitioner also recognizes that CR
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17.04 requires that a guardian ad litem be appointed for an
inmate when that inmate fails or is unable to defend an action.
However, petitioner points out that CR 17.04 does not
specifically designate who is responsible for paying the guardian
ad litem fee in a case such as this one that is a divorce action.
The Court notes that there is a specific statute which
gives courts the authority to assess attorney’s fees for a
guardian ad litem.
That statute is KRS 453.060 and it reads in
pertinent part:
(2) A guardian ad litem or warning order
attorney shall be allowed by the court a
reasonable fee for his services, to be paid
by the plaintiff and taxed as costs[.]
This particular statutory provision has been interpreted to
assess guardian ad litem fees as costs against the Commonwealth
in actions for involuntary termination of parental rights in
order to pay for the services involved in the representation of
the minor children or an indigent parent.
See e.g., Commonwealth
of Kentucky, Cabinet for Human Resources v. Coleman, Ky. App.,
699 S.W.2d 755 (1985).
The basis for such assessment against the
Commonwealth is that, in that type of cases, the Commonwealth,
being “the most frequent petitioner ..., is logically included in
that class of persons contemplated to be ‘plaintiffs’ by KRS
453.060(2).”
Coleman at 757.
The action below is a divorce action and, therefore, is
not the type of case where the Commonwealth is a “plaintiff” as
contemplated by KRS 453.060(2).
The Court is of the opinion
that, under this construction of KRS 453.060(2), petitioner,
Commonwealth of Kentucky, Finance and Administration Cabinet, is
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not the party who is responsible for the payment of attorney’s
fees to a guardian ad litem for the representation of an
incarcerated respondent in a divorce action.
Based on the foregoing, we conclude that the orders of
May 19, 1999, and June 24, 1999, are in error and the respondent
trial court is hereby PROHIBITED from enforcing those orders.
ALL CONCUR.
ENTERED: September 10, 1999
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
COUNSEL FOR PETITIONER:
COUNSEL FOR RESPONDENTS:
Boyce A. Crocker
Finance and Administration
Cabinet
Frankfort, Kentucky
A. B. Chandler III
Attorney General
Frankfort, Kentucky
Delmon W. Miller
Stanton, Kentucky
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