(251) 299-0101

BURDEN OF SHOWING ERROR & INJURY ON APPEAL; GUARDIAN AD LITEM FEES - TANNER V. TANNER

Tanner v. Tanner, [Ms. 2160105, June 23, 2017] __ So. 3d __ (Ala. 2017). The Court affirms a judgment entered by the Mobile Circuit Court concerning visitation and modification of the child support obligation upon determining the appellant failed to, among other things, prove any resulting injury from the alleged error by the circuit court.

...[A]ny error the trial court might have committed by denying the mother's child-support modification claim without first receiving the forms required by Rule 32(E) amounts to harmless error. Rule 45, Ala. R. App. P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

(Emphasis added.) "[T]he party claiming error has the burden of showing error on the record and resulting injury." Dale Cty. Dep't of Pensions & Sec. v. Robles, 368 So. 2d 39, 43 (Ala. Civ. App. 1979) (emphasis added); see also Watson v. McGee, 348 So. 2d 461, 463 (Ala. 1977) ("The appellant must not only establish error but also must show that he was probably prejudiced by the error."). The mother did not satisfy the threshold requirement of proving a material change of circumstances. The mother has failed to show how the inclusion of the child-support forms would have altered the disposition of the mother's claim. The mother has not proven that she was prejudiced by the failure of the trial court to obtain the forms.

Ms. *8-9.

The opinion also revisits rules concerning the proper way to document, justify, and obtain judicial approval of guardian ad litem fees:

"[A] trial court should establish a guardian ad litem's fees using the same criteria as are applicable to awards of attorney's fees in general." Turner v. Turner, 210 So. 3d 603, 612 (Ala. Civ. App. 2016).

" ' "The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion." Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 1992). Our deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). ...' "

Rabb v. Estate of Harris, 953 So. 2d 401, 405-06 (Ala. 2006) (quoting City of Birmingham v. Horn, 810 So. 2d 667, 681-82 (Ala. 2001)).

In Rabb, the guardian ad litem submitted his hourly rate along with the total number of hours he had spent "'in interviews, telephone calls, preparation of case, review of pleadings and documents'" and in court, 953 So. 2d at 406; however, he "refused to itemize the time claimed or to provide further documentation or evidence." 953 So. 2d at 407. The supreme court reasoned:

" 'Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. [Ex parte] Edwards, 601 So. 2d [82] at 85 [(Ala. 1992)]; see also Hensley [v. Eckerhart], 461 U.S. [424] at 437, 103 S.Ct. 1933 [(1983)] (citing the importance of documenting in fee applications the hours expended). "The applicant should exercise 'billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (citation omitted). As the United States Court of Appeals for the Eleventh Circuit stated in American Civil Liberties Union of Ga. v. Barnes, [168 F.3d 423 (11th Cir. 1999)]:

" ' "If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are 'excessive, redundant, or otherwise unnecessary.' Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded."

" '168 F.3d at 428.'

"[City of Birmingham v. Horn,] 810 So. 2d [667,] at 682 [(Ala. 2001)]."

Rabb, 953 So. 2d at 407-08.

Based on the foregoing, the supreme court, in Rabb, held that, because the guardian ad litem had failed to "substantiate his request for an attorney fee with any evidence or documentation, such as itemized billing records," 953 So. 2d at 408, the guardian ad litem had failed to meet his burden of proving his entitlement to the fee claimed. Similarly, in the present case, because the guardian ad litem failed to "substantiate [her] request for an attorney fee with any evidence or documentation, such as itemized billing records," id., we conclude that the guardian ad litem failed to meet her burden of proving her entitlement to the fee claimed. Therefore, we reverse the trial court's judgments entered in both cases with regard to the guardian ad litem's fee and remand the causes for the trial court to require the guardian ad litem to prove her entitlement to the fee requested in accordance with Rabb.

Ms. *9-12.

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