Small v. Piper

PER CURIAM:

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Paul C. Small and Joselene S. Small,        Plaintiffs,

v.

Nicole C. Piper,        Defendant,

Nicole D. Kane Piper f/k/a Nicole Denise Weaver,        Plaintiff,

v.

Robert Eugene Weaver and Joselene S. Small,        Defendants,

And Joselene S. Small,        Cross-Plaintiff,

v.

Curtis Piper,        Cross-Defendant,

Of Whom Joselene S. Small is the        Appellant.

And Nicole C. Piper and Curtis Piper are the        Respondents.

Appeal From York County
Robert E. Guess, Family Court Judge

Unpublished Opinion No. 2004-UP-407
Submitted April 6, 2004 Filed June 23, 2004
Revised & Refiled September 10, 2004

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

John D. Elliott, of Columbia, for Appellant. 

Nicole and Curtis Piper of York, Respondents.

PER CURIAM:  Joselene S. Small appeals the family court's order requiring her to pay one-half of the guardian ad litem's (Guardian's) fees, one-half of the guardian's attorney's fees, and a substantial portion of Nicole and Curtis Piper's attorney's fees.  We affirm in part, reverse in part, and remand. [1]

FACTS

Nicole Piper and Robert Weaver were divorced in 1993.  Piper was granted custody of the parties' two minor children with visitation rights for Weaver.  In 1996, Weaver's visitation was restricted to permit visits only under the supervision of the children's paternal grandparents, Joselene and Paul Small.  Later that year, Weaver was incarcerated and the family court issued a temporary order allowing the Smalls to continue visitation.  The Smalls exercised this visitation until Weaver was released from prison in 1997.  Afterward, Weaver resumed visitation supervised by the Smalls. 

In 2000, Piper brought this action against Weaver and Joselene Small to suspend visitation.  Weaver and Small counterclaimed for custody and requested Piper be held in contempt for refusing to allow visitation.  The court appointed a guardian ad litem to represent the interests of the children.  The guardian hired an attorney to represent her.

The family court's final order terminated Small's visitation and suspended Weaver's pending a determination if it would be in the best interest of the children for his visits to resume.  The court also found Piper's decision to stop the visitation was not contemptuous.  The order required Small and Piper to each pay one-half of the fee awarded to the guardian and one-half of the guardian's attorney's fees.  The court also required Small to pay a substantial portion of attorney's fees incurred by Piper and her husband. 

DISCUSSION

In appeals from the family court, we may find the facts in accordance with our own view of the preponderance of the evidence.  This broad scope of review does not, however, require us to disregard the findings of the family court judge, who saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Hollar v. Hollar, 342 S.C. 463, 472, 536 S.E.2d 883, 887 (Ct. App. 2000). 

I.  Guardian's Authority to Hire an Attorney

Small contends the family court erred in awarding attorney's fees to the guardian's attorney, arguing the guardian improperly retained counsel without obtaining prior authorization from the family court.  We disagree.

At the time this case was before the family court, there was no requirement for a guardian to seek prior approval from the court before retaining counsel. [2]   However, Rule 12, SCRFC provides that "[i]f a guardian ad litem is represented by an attorney, the court in its discretion may assess reasonable attorneys' fees and costs."  Accordingly, if the guardian ad litem did not seek and obtain prior approval from the court for the hiring of an attorney, then the guardian assumed the risk that the court might not allow a fee.  In this case, the court subsequently approved the attorney's hiring and awarded modified fees, exercising its inherent power to protect the best interests of the children and its discretionary authority under Rule 12. 

After Small complained in a pre-trial motion that counsel for the guardian was not authorized, the court responded by issuing an order requiring the guardian's attorney to participate in the action.  In the final order, the court addressed Small's concern directly, stating:

In making this award, the Court is cognizant of the fact that the Guardian ad Litem retained [counsel] without prior approval of the Court.  It should be noted that a Guardian ad Litem will not in all instances be awarded attorney's fees unless the Court has approved the appointment of such an attorney.  The Court has decided to award an attorney's fee . . . because the issue of whether or not he was to be involved in this case has been dealt with in a pre-trial motion by [Small's] attorney.  After that motion, the Order issued did not relieve [counsel] of his duties but, to the contrary, gave [him] [a specific duty] . . . . [T]he Court has come to the conclusion that [counsel's] involvement in this case was necessary and that he did so as an advocate for the best interest of the children.

In light of the family court's requirement that the guardian's counsel participate in the case and the final order stating his involvement was necessary, we conclude the court did not abuse its discretion in making an award.