IN RE THE MARRIAGE OF: KENNETH MICHAEL SMITH, Petitioner and Appellant, and MELISSA SUE SMITH, n/k/a GRAHAM, Respondent and Appellee.
Submitted on Briefs: June 26, 2019
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. BDR 2016-389
Honorable Michael F. McMahon, Presiding Judge.
Appellant: Kenneth Michael Smith, Self-Represented, Helena,
Appellee: Melissa Sue Graham, Self-Represented, Boulder,
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Kenneth Michael Smith (Smith) appeals an order of the First
Judicial District Court, Lewis and Clark County, apportioning
the guardian ad litem's (GAL) costs. We affirm.
Smith and Melissa Sue Smith, n/k/a Graham (Graham), married
in July 2008. The marriage produced one child, born in 2009.
The parties separated in June 2016, and Smith filed a
petition for establishment of a parenting plan in July 2016.
Graham later filed a petition for dissolution. Smith and
Graham each submitted a proposed parenting plan to the
District Court. The court adopted an amended version of
Graham's plan in September 2016. Thereafter, the parties
filed numerous motions to amend the parenting plan. The court
did not rule on those motions until January 2017, when it
issued its Findings of Fact, Conclusions of Law, and Final
Decree of Dissolution. In its findings, the court recognized
that Smith and Graham needed a GAL to assist them in
co-parenting their child. The court, accordingly, appointed a
GAL to the case and ordered Smith to pay 75% of the GAL's
costs and Graham to pay 25% of the GAL's costs.
Two GALs served in this matter. The first GAL served from
January 2017 until July 2018, when she moved the court to
withdraw and appoint a new GAL. The court obliged, appointing
the current GAL and retaining the parties' cost
apportionment (75% and 25%, respectively). The current GAL
billed the costs he incurred while satisfying his
court-appointed duties to Smith and Graham in the proportion
the District Court ordered. Smith opposes those costs and
appeals the matter. We affirm the District Court's cost
On appeal, Smith argues he should not be obligated to pay the
current GAL's costs. "We review a court's order
concerning costs for an abuse of discretion." Total
Indus. Plant Servs. v. Turner Indus. Grp., Ltd. Liab.
Co., 2013 MT 5, ¶ 61, 368 Mont. 189, 294 P.3d 363.
Section 40-4-110(1), MCA, allows a court to order a party to
pay costs associated with the maintenance of a family law
proceeding. Those costs may consist of "professional
fees, including sums for legal and professional services
rendered." Section 40-4-110(1), MCA. "The court may
order that the amount be paid directly to the professional,
who may enforce the order in the professionals name."
Section 40-4-110(1), MCA. Further, when the court deems a
GAL's service is necessary to determine the child's
best interest, § 40-4-205(1), MCA, states, "The
court may appoint a guardian ad litem to represent the
interests of a minor dependent child with respect to the
child's support, parenting, and parental contact."
The court must enter an order for either or both of the
parties to pay the GAL's costs: "The court shall
enter an order for costs and fees in favor of the child's
guardian ad litem. The order must be made against either or
both parents . . . ." Section 40-4-205(4), MCA.
In this case, the District Court acted well within its
statutory authority in ordering the parties to pay the GAL
fees. See §§ 40-4-110(1), -205(4), MCA.
Due to this case's overtly tense and litigious nature,
the District Court expressly found a GAL was necessary to
represent the child's best interest. The current GAL
incurred his costs by providing the court-ordered
professional services in investigating and representing the
child's best interest. We accordingly conclude the court
did not abuse its discretion and affirm its ruling.
On July 17, 2019, Smith filed a motion to suspend proceedings
pending response from the office of judiciary commission on
practice. Smith's motion claims that the District Court
did not show good cause justifying the appointment of the
second GAL. The Court disagrees and addresses the issue
above. The District Court acted within its statutory
authority when it appointed a GAL and ordered the parties to
pay for those services. Thus, Smith's motion to suspend
the instant proceeding is denied.
On August 7, 2019, Smith filed a motion requesting to
withdraw his appeal. In the motion, Smith states that he
"would like to give the [District Court] another
opportunity to address [his] challenge to [its] appointment
of [the GAL]." Smith appeals the District Court's
Findings of Fact, Conclusions of Law, and Final Decree of
Dissolution, in which the court appointed a GAL to assist the
parties in co-parenting their child. That order is a
"final judgment" from which an appeal is well
taken. See M. R. App. P. 4(1)(a), 6(1). We find it
unnecessary to dismiss the present appeal, as Smith's
motion simply states that he wishes to "give" the
District Court another opportunity to consider the precise
issue he appeals. The appealed issue is appropriately before
this Court, and we see no reason to dismiss the appeal for
the District Court's reconsideration when the court
already clearly stated its ruling on the matter. We
accordingly deny Smith's motion to dismiss and affirm the
District Court's order.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. This appeal presents no
constitutional issues, no issues of first impression, ...