In Re: Jackson H. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 15, 2015 Session
IN RE JACKSON H.
Appeal from the Circuit Court for Williamson County
No. 2014205 Robbie T. Beal, Judge
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No. M2014-01810-COA-R3-JV – Filed October 28, 2016
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This appeal involves a challenge to fees awarded to a guardian ad litem. The juvenile court
ordered the child’s parents to each pay half of the fees awarded. After the juvenile court
made its fee award, Mother appealed to the circuit court. The circuit court conducted a de
novo hearing and found the fees awarded reasonable. On appeal to this Court, Mother raises
several issues with respect to the award, including a lack of notice that fees would be
assessed to the parents, improper limits on discovery, unauthorized and unnecessary actions
by the guardian ad litem, and violations of Supreme Court Rules. The guardian ad litem
argues Mother’s appeal to the circuit court was untimely and requests that we vacate the
decision of the circuit court and remand with instructions to dismiss the appeal. We do not
find the appeal to the circuit court to be untimely, but we do find the award of fees to the
guardian ad litem appropriate. Therefore, we affirm the judgment of the circuit court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Connie Reguli, Brentwood, Tennessee, for the appellant, Elizabeth H.
David R. Grimmett, Nashville, Tennessee, for the appellee, Dawn Michelle Lipford.
OPINION
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. PROCEEDINGS BEFORE THE JUVENILE COURT
Jackson H.’s involvement with the juvenile justice system began in May of 2013,
when he was thirteen. His mother, Elizabeth H. (“Mother”) filed a petition in the Juvenile
Court for Williamson County, Tennessee, alleging that Jackson was an unruly child.1 The
juvenile court placed Jackson on in-home detention, but many other petitions2 followed.
Ultimately, Jackson made several appearances in juvenile court.
The juvenile court appointed Michelle Lipford (the “GAL” or “Ms. Lipford”) as
guardian ad litem on June 3, 2013. As required by Tennessee Code Annotated § 37-1-126,3
the court also assessed a nonrefundable administrative fee of $50. But the court made no
determination regarding whether Jackson’s parents possessed the financial resources to
contribute to the cost of a guardian ad litem.
On July 15, 2013, a magistrate held a review hearing in which Jackson, his counsel,
1
State statute defines an “unruly child” as a child who:
(A) Habitually and without justification is truant from school while subject to compulsory
school attendance under § 49-6-3007;
(B) Habitually is disobedient of the reasonable and lawful commands of the child’s
parent(s), guardian or other legal custodian to the degree that such child’s health and safety
are endangered;
(C) Commits an offense that is applicable only to a child; or
(D) Is away from the home, residence or any other residential placement of the child’s
parent(s), guardian or other legal custodian without their consent. Such child shall be known
and defined as a “runaway”.
Tenn. Code Ann. § 37-1-102(b)(23) (Supp. 2016).
2
In addition to unruly behavior, subsequent petitions alleged violations of in-home detention, county
probation, and curfew; being away from home without a parent’s consent; assault; criminal impersonation;
driving without a license; unauthorized use of a vehicle; possession of drug paraphernalia, a legend drug
without prescription, and a controlled substance; introduction of contraband into a penal facility; failure to
report an accident and to stay within a traffic lane; theft under $500; and vandalism under $500. By our count,
twenty-six petitions related to Jackson’s behavior or actions were filed between May 6 and December 16,
2013.
3
Tennessee Code Annotated § 37-1-126 provides, in part, that “[t]he parents, legal custodians or
guardians of a child who is appointed a guardian ad litem shall be assessed by the court an administrative
fee . . . .” Tenn. Code Ann. § 37-1-126(c)(1) (2014).
2
his parents, the GAL, and a representative of the Department of Children’s Services
participated. Although new petitions alleging criminal impersonation and violation of county
probation had been filed only three days prior, the magistrate relieved Ms. Lipford of her
responsibilities as guardian ad litem.
On December 6, 2013, Jackson’s counsel filed a motion to withdraw. The motion
alleged that counsel had “received a handwritten note at his office (presumably delivered by
the child’s mother) purporting to be the communication of Jackson [] stating [his] wish to
terminate the attorney-client relationship.” The motion further alleged that counsel
“suspect[ed] that the communication in question may not have been the knowing and
voluntary act of [Jackson].”
Three days later, on December 9, 2013, the juvenile court entered an order
reappointing Ms. Lipford as guardian ad litem. In addition to noting the numerous petitions
filed against Jackson, the court found that Jackson “may be a dependent, neglect[ed] or
abused child” and directed the GAL to investigate the dependency, neglect or abuse issues.
The court further ordered the GAL to “file a dependency petition if the investigation
warrants.” Like the previous order, the order reappointing Ms. Lipford assessed an
administrative fee to Jackson’s parents but was silent as to whether his parents were indigent.
On December 17, 2013, Ms. Lipford filed a petition to adjudicate Jackson dependent
and neglected. In the petition, the GAL alleged that “almost all” of the charges against
Jackson “accrued while the child was in Mother’s care” and that it was “practically
impossible for Mother to supervise” Jackson. Mother and Jackson’s father (“Father”)
divorced in 2010, and the GAL claimed Jackson’s behavior was “better when he [wa]s in
Father’s care.” The GAL requested that Jackson “remain in the legal custody of his Mother
and Father and the physical custody of his Father, and reside in Father’s home under his close
supervision, pending [Jackson’s] acceptance into residential placement and pending the final
disposition of [the dependency and neglect petition].”
Mother initially requested a continuance of the preliminary hearing on the petition to
obtain counsel, but at a hearing held on January 8, 2014, both Mother and Father waived their
right to counsel and signed written waivers to that effect.4 Following the hearing, the
juvenile court entered an order5 continuing the preliminary hearing but also restricting
Mother’s communications. Specifically with respect to Mother, the order provided as
follows:
4
Apparently, the waiver of counsel was limited only to the January 8, 2014 hearing as both parents
subsequently retained counsel.
5
Only a portion of the order is included in the record.
3
4. With the exception of communications with her attorney(s), Mother shall
not convey in any form the statements, opinions, or legal positions of the
Guardian ad litem to any person or entity without the Guardian ad litem’s
prior permission. Mother shall direct any persons seeking or requiring the
statements, opinions, or legal positions of the Guardian ad litem to the
Guardian ad litem. The intent of this order is to avoid miscommunication
and/or misrepresentation, whether intentional or otherwise, and is not
intended to infringe on mother’s communication with her attorney.
5. Mother shall not seek publicity or media attention which may compromise
the child’s right to privacy and confidentiality in these proceedings. The
intent of this Order is to maintain the child’s confidentiality and to protect
the child from unwanted attention or embarrassment.
On January 13, 2014, the GAL filed an amended petition to adjudicate Jackson
dependent and neglected. In her amended petition, the GAL again alleged that Jackson’s
behavior was “better when he [wa]s in Father’s care than when he [wa]s in the care of his
Mother.” But the GAL also alleged that “Mother’s actions and/or inactions with regard to
the child’s care and supervision pose a threat to the child’s safety and well-being to the extent
that allowing him to remain in Mother’s custody places him at substantial risk of harm.”
On January 31, 2014, the juvenile court held a hearing on the amended petition. As
reflected in the court’s subsequently entered order, Mother and Father and their respective
counsel attended the hearing. Among other matters, the order addressed the issue of the fees
of the GAL. The order provided as follows: “Neither parent is indigent. Consequently, the
Guardian ad litem fees should not be submitted to the Administrative Office of the Courts for
payment by the state, but instead should be paid by [Father] and [Mother], with each bearing
responsibility for fifty percent of the fees.” The court directed the GAL to “submit an
Affidavit of Fees either at the conclusion of the Adjudicatory Hearing or upon the final
disposition of the case.”
Thereafter, on February 20, 2014, the GAL filed a petition for criminal contempt
against Mother. The GAL alleged that Mother had willfully violated prior juvenile court
orders “by sending an email with medical records attached to a number of people and/or
entities, not all of whom have legitimate professional interest in the child’s medical or
psychological care or treatment, and not all of whom are known to the [GAL].” The GAL
also alleged that the email “attributed a number of statements, positions, actions and/or
inactions to the [GAL], many or most of which were inaccurate or fabricated.”
At a hearing held on March 4, 2014, the GAL announced her intention to voluntarily
dismiss the amended petition to adjudicate Jackson dependent and neglected. The reasons
for the voluntary dismissal are not known, although the order memorializing the dismissal
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reflects that a plea agreement involving Jackson placed him in the care of his Father. The
order memorializing the dismissal also directed the GAL to “submit a record reflecting the
time expended on this case for which she is seeking compensation, along with an Affidavit of
Fees.” The order also relieved Ms. Lipford of her responsibilities in the case.
On March 10, 2014, the GAL filed an affidavit of her fees, which reflected her hourly
rate and the total number of hours for which she was seeking compensation. The GAL
attached to the affidavit a detailed statement showing the dates services were rendered, the
time devoted in rendering the service on the date in question, and a description of the
services rendered.
The juvenile court entered an order awarding the GAL fees of $5,454 for the period
from December 5, 2013, to March 7, 2014. The court found, having reviewed the GAL’s
affidavit, that the fees were reasonable. In accordance with its previous order finding the
parents not indigent, the court ordered each parent to pay one-half of the award.
B. PROCEEDINGS BEFORE THE CIRCUIT COURT
Mother appealed the award of fees to the Circuit Court of Williamson County,
Tennessee.6 Mother also served a subpoena duces tecum on the GAL. The subpoena
commanded the production of “[a]ll emails, records, letters, correspondence, text messages,
interview notes, Administrative Office of the Courts payment submission forms, orders of
appointment, and any other documents and correspondence created by you, relied upon by
you, received by you, and sent by you as Guardian ad Litem for Jackson [H.].”
For her part, the GAL moved to quash the subpoena. She also resubmitted the same
affidavit of her fees that she filed with the juvenile court. The circuit court granted the
motion to quash.
The court later conducted a hearing on the GAL’s fees. Despite suggestions from the
court that Mother should examine the GAL regarding her fee affidavit, Mother was the only
witness to testify. Mother’s testimony largely focused on her position that Jackson’s
behavioral issues were the result of a medical condition and her efforts to get Jackson the
treatment she felt he needed. She claimed both the juvenile court and the GAL frustrated her
efforts. In her view, the GAL’s actions “[a]lmost destroyed” Mother and her son.
On August 28, 2014, the circuit court entered an order concluding that Ms. Lipford’s
6
By statute, “[a]ny appeal from any final order or judgment in an unruly child proceeding or
dependent and neglect proceeding . . . may be made to the circuit court that shall hear the testimony of
witnesses and try the case de novo.” Tenn. Code Ann. § 37-1-159(a) (Supp. 2016).
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fees were reasonable. The court awarded the full amount of fees requested, $5,454, and also
ordered Mother and Father to each pay one-half of the amount awarded.
II. ANALYSIS
Mother identifies seven issues on appeal. As we perceive them, Mother’s issues are
actually fourfold: (1) whether the trial court appropriately ordered the parents to pay the fees
of the GAL; (2) whether the trial court erred in quashing Mother’s subpoena duces tecum and
limiting discovery; (3) whether the fees of the GAL were unreasonable, either because they
were unnecessary or outside of the GAL’s authority; and (4) whether the amount that may be
awarded is limited by Tennessee Supreme Court Rule 13. The GAL argues that the circuit
court lacked subject matter jurisdiction to consider Mother’s appeal of the award of fees, and
we should vacate the circuit court’s order and remand with instructions to dismiss Mother’s
appeal. If the circuit court did have subject matter jurisdiction, the GAL argues that
Mother’s appeal to this Court is frivolous, entitling the GAL to an award of attorneys’ fees
on appeal. We consider the circuit court’s subject matter jurisdiction first.
A. SUBJECT MATTER JURISDICTION OF THE CIRCUIT COURT
Any appeal from a final order or judgment of the juvenile court in a dependency and
neglect proceeding must “be perfected within ten (10) days, excluding nonjudicial days,
following the entry of the juvenile court’s order.” Tenn. Code Ann. § 37-1-159(a) (Supp.
2016). The GAL argues that the ten-day period began to run from March 14, 2014, the day
the juvenile court’s order awarding fees was entered. If that is the case, Mother’s notice of
appeal, which was filed on April 21, 2014, was untimely.
Based our review of the record, we find Mother’s appeal to the circuit court was
timely. Although the juvenile court did award fees to GAL on March 14, 2014, the order
awarding fees did not resolve all outstanding claims of the GAL for fees. On the same day
that she filed her fee affidavit, the GAL also filed a motion to quash subpoena duces tecum in
which she requested “costs and/or fees associated with [the motion to quash].” The juvenile
court resolved the request for additional fees in its order granting the motion to quash, which
was not entered until April 11, 2014. Mother timely appealed from the order entered on
April 11, 2014, and the circuit court possessed subject matter jurisdiction to consider the
award of fees to the GAL. Therefore, we may consider the issues raised by Mother with
respect to the circuit court’s award of fees.
B. AWARD OF GUARDIAN AD LITEM FEES
As an initial matter, we should note that indigence is not the only basis for appointing
a child a guardian ad litem. See Tenn. Code Ann. §§ 37-1-126(c)(1), 37-1-150(g)(1) (2014).
A court may also appoint a guardian ad litem upon its own motion if a parent’s interest
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conflicts with the child’s. Id. § 37-1-150(a)(1). Our statutes recognize that there are
instances in which a parent may be financially able to defray a portion or all of the cost of a
guardian ad litem.
1. Trial Court’s Authority to Order Payment by the Parents
Under Tennessee Code Annotated § 37-1-150(d)(1), “[i]f, after due notice to the
parents . . . and after affording them an opportunity to be heard, the court finds that they are
financially able to pay all or part of the [reasonable compensation for a guardian ad litem],
the court may order them to pay the same and prescribe the manner of payment.” Tenn. Code
Ann. § 37-1-150(d)(1). Even if a child is indigent and a guardian ad litem is appointed, the
court may order a child’s parents to pay a portion or all of the cost associated with the
guardian ad litem if the parents have the financial ability to do so. Id. § 37-1-150(g)(1).
Mother argues that she was not given notice in a timely fashion that she might be responsible
for the GAL’s fees. In its consideration of the issue, the circuit court found that Mother was
not notified prior to January 31, 2014, that she might be responsible for the fees of the GAL
and that the juvenile court “erred in not notifying the parents sooner.” However, the circuit
court declined to find the notice insufficient.
While we agree that notice was not handled in an ideal manner, under the unique
circumstances of this case, we conclude that the notice given to Mother was sufficient under
the statute. Both parents were represented by counsel at the hearing on January 31, 2014, and
the record does indicate that Mother objected to the juvenile court’s indigence finding at the
hearing. We also note that at no time has Mother contended that she was indigent or lacked
the means to pay all or part of the reasonable compensation of the GAL. In her motion to set
aside the order for fees to be paid to Ms. Lipford, Mother made no mention of her ability to
pay the fees. Instead, Mother argued that there was “no provision in law for paying a
Guardian ad Litem who non-suits the actions they have initiated.”
2. Trial Court’s Limitation on Discovery
In the proceedings in the circuit court, Mother served a subpoena duces tecum on the
GAL demanding that the GAL appear at the office of Mother’s attorney on June 8, 2014,
with the following records: “All emails, records, letters, correspondence, text messages,
interview notes, Administrative Office of the Courts payment submission forms, orders of
appointment, and any other documents and correspondence created by you, relied upon by
you, received by you, and sent by you as Guardian ad Litem for Jackson [H.].” In granting
the GAL’s motion to quash, the trial court limited the discovery that Mother could obtain on
the issue of fees:
[T]he motion to quash is granted; and the Guardian ad Litem is obligated to
provide a detailed time list of the time expended on the above styled matter to
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Mother’s counsel. The Mother’s attorney is further allowed to cross-examine
the Guardian ad Litem as to the time expended by the Guardian ad Litem, but
this Court will not require the Guardian ad Litem to turn over work-product
which was created in preparation for the case.
On appeal, Mother essentially argues that the circuit court erred because none of the
documents sought were privileged. Mother argues that: (1) there is no attorney/client
privilege under Tennessee Code Annotated § 23-3-105 between a guardian ad litem and a
child; (2) the communications sought were between the GAL and persons related to
Jackson’s medical care and potential placement; (3) the GAL non-suited the petition to
adjudicate dependency and neglect, and therefore, there was no reason to deny parents access
to the information; (4) there is no case law supporting a work-product privilege for a GAL;
and (5) a GAL’s role is to provide evidence on the best interest of a child.
We review pretrial discovery decisions under an abuse of discretion standard. West v.
Schofield, 460 S.W.3d 113, 120 (Tenn. 2015). A court abuses its discretion when it applies
an incorrect legal standard, reaches an unreasonable result, or bases its decision on a clearly
erroneous assessment of the evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010). In reviewing the trial court’s exercise of discretion, we presume that the
decision is correct and review the evidence in a light most favorable to upholding the
decision. Lovlace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 2013).
We find no abuse of discretion by the circuit court in granting the GAL’s motion to
quash or limiting discovery. Certainly, Mother’s arguments misapprehend the relationship
between the GAL and Jackson. Supreme Court Rule 40 states that “[t]he child is the client of
the guardian ad litem” and that the guardian ad litem is “to function as lawyer.” Tenn. R.
Sup. Ct. 40(c)(1), (f). Beyond that, the document request by Mother was overly broad given
that the great majority of services for which the GAL sought compensation related to court
appearances and conferences or meetings with interested parties and attorneys. The only
documents that the GAL created for which she sought compensation were proposed orders of
the court, which were readily available to Mother.
3. Trial Court’s Reasonableness Determination
The circuit court awarded the GAL the full amount of the fees she requested, $5,454,
which is the same amount the GAL requested from the juvenile court. Mother argued to the
circuit court that the fees were unreasonable. In rejecting Mother’s argument, the circuit
court found that Mother’s proof was insufficient to rebut the GAL’s assertion of
reasonableness:
The third issue presented is whether the line item entries in the
Affidavit of Fees filed by the Guardian ad litem are reasonable. The Court has
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carefully reviewed each of the line item entries. With respect to the December
19, 2013 line item, the Court has some concern over the discussion time spent
with attorneys but also finds that this time was combined with preparation time
for the preliminary hearing and that in combination, the time expended was
more than reasonable. The Court finds that the meeting time with the Court
Appointed Special Advocate is reasonable. The February 25, 2014 conference
time of 1.2 hours gives the Court some concern, but in context with the
combined amount of preparation time, the Court finds the time expended to be
acceptable. The Court finds the remaining line item fees to be reasonable as
well.
On appeal to this Court, Mother again argues the fees are unreasonable. The fees
awarded include time associated with the petition for dependency and neglect and the motion
to hold Mother in criminal contempt, and Mother submits that the GAL was not authorized to
make either filing. We disagree.
The GAL had authority to file the petition for dependency and neglect and the
contempt motion by virtue of both the Rules of the Supreme Court and the orders of the
juvenile court. By rule, the responsibilities and duties of a guardian ad litem include
“[a]dvocating the position that serves the best interest of the child” by “[p]etitioning the court
for relief on behalf of the child and filing and responding to appropriate motions and
pleadings.” Tenn. R. Sup. Ct. 40(d)(7). We conclude that the petition for dependency and
neglect and the motion to hold Mother in criminal contempt are just such motions and
pleadings. In addition, the juvenile court specifically authorized the GAL’s action. In
reappointing Ms. Lipford, the juvenile court ordered her to investigate issues of dependency,
neglect or abuse and further ordered her to “file a dependency petition if the investigation
warrants.” When it became concerned that Mother was communicating Jackson’s
individually identifiable health information to third-parties, the juvenile court authorized the
GAL to “initiate contempt of court proceeding against anyone” believed to be in violation of
court orders.
Mother also submits that the fees were unreasonable because the GAL’s actions were
either counter-productive or unproductive. Mother claims that the GAL’s actions interfered
with Jackson’s medical care because the GAL “direct[ed] medical providers to communicate
with her instead of mother and by creating such chaos that even the medical providers . . . did
not know who [they] could talk to and who [they] couldn’t.” We find no proof of Mother’s
claim in the record beyond the fact that the GAL did communicate with Jackson’s medical
providers. But such communications are necessary for a guardian ad litem to carry out her
responsibility and duty to conduct an independent investigation of the facts. See id.
40(d)(1)(iv), (viii).
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Finally, Mother claims that the petition for dependency and neglect and the motion to
hold Mother in contempt were unproductive because they were both ultimately dismissed by
the GAL. The circuit court considered this argument and rejected it:
Mother’s proof on this issue consisted of the fact that the petition was
eventually non-suited and the volume of medical proof that the mother had
obtained. The record in this case convinces the Court that there were
psychological issues with medical and behavioral components and that the
child has a very uncommon diagnosis of PANDAS[7] disorder. The Court in
[sic] not comfortable holding the Guardian ad litem to the standard of being
able to recognize all that occurs with this disorder and makes no finding with
regard to whether the Guardian ad litem was right or wrong in filing a petition
to adjudicate dependency and neglect against the mother or why the Guardian
ad litem subsequently non-suited the petition. Only if the Guardian ad litem
was acting wrongfully should she be denied fees and that was not the case
here. The Guardian ad litem was acting on her judgment as to the child’s best
interests and it cannot be said that she was unreasonable in her actions.
We also reject the argument. For her fees to be reasonable, the GAL did not have to
be successful in her filings, although results are among the factors that may be considered.
See, e.g., Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 185 (Tenn. 2011) (applying the
factors found in Rule of Professional Conduct 1.5(a)(1)-(10) in determining a reasonable
attorney’s fee regardless of the client’s age).
4. Application of Supreme Court Rule 13
The compensation that may be received by counsel appointed for indigent defendants
is limited. See Tenn. R. Sup. Ct. 13. These limitations also apply to guardians ad litem
appointed in certain types of cases. Id. Upon her initial appointment, the GAL sought fees
under Supreme Court Rule 13, which includes the compensation limitations, and was paid by
the Administrative Office of the Courts (“AOC”). Mother claims that it was a “deceptive
practice” for the GAL, upon her reappointment, to have sought an award of fees from Mother
and Father. Mother also claims that the GAL should be subject to the compensation limits
found in Rule 13, even though the parents were found not to be indigent by the juvenile
court.
We conclude that Supreme Court Rule 13 does not limit the fees that may be awarded
to the GAL in this case. First, a parent’s financial status may change over the course of a
case or new evidence may come to light indicating that an initial finding of indigence was
7
PANDAS is an acronym for “pediatric autoimmune neuropsychiatric disorders associated with
streptococcal infections.”
10
incorrect. In such instances, after notice and a hearing, a court is authorized by statute to
order the parent to pay certain costs, including the reasonable compensation. Tenn. Code
Ann. § 37-1-150(d)(1). We find nothing deceptive in a guardian ad litem accepting
compensation as limited by Supreme Court Rule 13 and later requesting that payment be
made by the parents when it appears that they are financially able to do so.
Second, our reading of Tennessee Code Annotated § 37-1-150 indicates that the
compensation limits of Supreme Court Rule 13 do not necessarily apply when a parent has
been found to be “financially able to defray a portion or all of the cost of the child’s
representation.” Id. § 37-1-150(g)(1). When a parent is able to defray a portion or all of the
costs of a guardian ad litem, those funds are ultimately paid over to the AOC. If the AOC
“receives funds greater than the total amount which appointed counsel or the guardian ad
litem has claimed and has been reimbursed pursuant to Tennessee Supreme Court Rule 13,
then any such excess funds shall be paid to the appointed attorney.” Id. § 37-1-150(g)(5).
Such a statutory requirement would be unnecessary if fees were limited by Supreme Court
Rule 13.
C. ATTORNEY’S FEE ON APPEAL
Having considered Mother’s arguments, we must now address the GAL’s request for
an award of attorney’s fees incurred on appeal under Tennessee Code Annotated § 27-1-122.
The GAL contends that Mother’s appeal is frivolous. By statute, when an appeal is found to
be frivolous, certain damages may be awarded:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122 (2000). The statute “must be interpreted and applied strictly so
as not to discourage legitimate appeals.” See Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586
(Tenn. 1977) (citing the predecessor to Tennessee Code Annotated § 27-1-122). A frivolous
appeal is one “utterly devoid of merit.” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d
202, 205 (Tenn. 1978). We do not find this appeal devoid of merit or any indication that it
was undertaken for delay. Therefore, we decline to award the GAL her attorney’s fees on
appeal.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
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_________________________________
W. NEAL MCBRAYER, JUDGE
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