Sharon M. Keisling v. Daniel Kerry Keisling ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 8, 2009 Session
SHARON M. KEISLING v. DANIEL KERRY KEISLING, ET AL.
Appeal from the Circuit Court for Wilson County
No. 1644 Jon Kerry Blackwood, Sr. Judge
No. M2009-01025-COA-R3-CV - Filed August 26, 2010
This matter was remanded to the trial court for the sole purpose of determining the amount
of attorneys’ fees to be awarded for a frivolous appeal. Appellant challenges only the award
itself and not the amount decided by the trial court. The party awarded the fees argued that
the trial court erred in the amount awarded. Finding no error, the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.
Sharon M. Keisling, Mount Juliet, Tennessee, Pro Se.
Gloria Jean Evins, Lebanon, Tennessee, Guardian Ad Litem, Pro Se.
OPINION
This appeal arises from the trial court’s findings about the amount of attorneys’ fees
awarded a guardian ad litem for defending a frivolous appeal.
As the trial court found in its April 27, 2009 order, this litigation concerning divorce
and custody has a long and exhausting history. This case has been before the appellate court
three times in Keisling v. Keisling, 92 S.W.3d 374 (Tenn. 2002) (Keisling I), Keisling v.
Keisling, 196 S.W.3d 703 (Tenn. Ct. App. 2005) (“Keisling II”) and Keisling v. Keisling,
M2007-01102-COA-R3-CV, 2008 WL 1923105 (Tenn. Ct. App. May 1, 2008) (“Keisling
III”).
A history of the dispute between the parties can be found in Keisling I and in the
appellate court’s 29 page opinion in Keisling II. This current appeal springs from the remand
after Keisling III.
In Keisling III, Sharon Keisling appealed the fee of $7,500 awarded to the guardian
ad litem, Gloria Evins. In that appeal, Ms. Keisling failed to file a transcript of the evidence
or a statement of the evidence of the hearing wherein the guardian ad litem was awarded the
fee. Keisling III, 2008 WL 1923105, at *1. Absent such a record, the Court of Appeals
found that it must conclude that the trial court was correct. Keisling III, 2008 WL 1923105,
at *3. The Keisling III court affirmed the $7,500 fee and, having determined the appeal to
be frivolous, remanded the case to the trial court to determine the amount of attorneys’ fees
to be awarded Ms. Evins resulting from the frivolous appeal. The specific finding of the
court of appeals is as follows:
The judgment of the trial court awarding the Guardian ad Litem a fee of
$7,500 is affirmed. We have determined this appeal to be frivolous and this
case is remanded to the trial court to determine reasonable and appropriate
attorney’s fees. Costs of this appeal are taxed to the Appellant, Sharon M.
Keisling, for which execution may issue if necessary.
Keisling III, 2008 WL 1923105, at *3.
On remand, the matter was heard by the trial court in April of 2009, to determine the
amount of attorneys’ fees to be awarded to Ms. Evins resulting from Ms. Keisling’s frivolous
appeal in Keisling III. Ms. Evins filed an affidavit that stated her hourly fee is $175 and that
she spent 61.25 hours on the Keisling III appeal resulting in a requested total fee of
$10,869.08. Ms. Evins also requested post judgment interest on the guardian ad litem fee of
$7,500 fee previously affirmed.
In its order of April 17, 2009, the trial court found the hourly fee of $175 to be
reasonable but the time devoted to the appeal of Keisling III by Ms. Evins to be excessive.
As a result, the trial court awarded Ms. Evins $1,750 in attorneys’ fees and post judgment
interest on the guardian ad litem fee ($7,500) at 10%, but denied Ms. Evins’ request to
consider these awards to be child support. Both Ms. Keisling and Ms. Evins challenged the
trial court’s decision in this appeal.
Ms. Keisling appeals arguing that a self-represented guardian ad litem is not entitled
to attorneys’ fees and that Ms. Evins, who had been relieved as a guardian ad litem,
committed a “fraud upon the court” when she signed briefs and motions to obtain her fee
with that title. Ms. Evins, on the other hand, appeals claiming that the trial court erred by
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reducing her fee and that it should have been designated as child support to avoid bankruptcy
protection.
Ms. Keisling’s first issue, whether a self-represented guardian ad item could recover
attorneys’ fees, was not before the trial court as the award of fees had already been ordered
by the appellate in Keisling III. The sole issue before the trial court on remand was the
amount of the fee and not whether Ms. Evins was entitled to it. Ms. Keisling does not take
issue with the amount of the fee in this appeal. In any event, we cannot conclude that there
is any basis for denying an attorney guardian ad litem fees under the circumstances herein.
Ms. Keisling also attempts to raise issues that were not before the trial court on the
remand after Keisling III in an attempt to reopen previously decided issues. Ms. Keisling
argues that any prior findings related to the guardian ad litem should be reexamined in light
of the alleged fraud. Aside from numerous other reasons why Ms. Keisling would not be
successful, we find Ms. Evins signing as a guardian ad litem is not a fraud on the court. Ms.
Keisling also argues that purported misconduct by Ms. Evins precluded any award of
attorneys’ fees. Again, the only issue before the trial court was the amount of attorneys’ fees
attributable to the frivolous appeal in Keisling III. Consequently, we find that Ms. Keisling
has not raised reversible error by the trial court.1
The guardian ad litem argues on appeal that the trial court erred in reducing the
attorneys’ fees requested. According to Ms. Evins, given the amount of work performed on
this case as a whole and her inability to differentiate the time spent on its different aspects,
the trial court erred in its attorneys’ fee award for the frivolous appeal. Ms. Evins does not
argue that the amount awarded by the trial court failed to reflect the attorneys’ fees incurred
in the frivolous appeal. Ms. Evins’ argument seems to be that although she is unable to
accurately account for the time spent on the appeal, since this entire case has been so time
consuming, the attorneys’ fees award should have been greater. The amount of the attorneys’
fees award is affirmed.
The guardian ad litem also appeals the trial court’s failure to characterize the award
as child support. While such a designation might prevent its discharge in bankruptcy, the
guardian ad litem failed to explain why the trial court erred or cite any authority for its
position. As a consequence, the trial court’s finding is affirmed.
1
Ms. Keisling also requests that the trial court judge be recused on remand. Since there will be no
remand, such a request is moot.
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Finally, the guardian ad litem in her brief asks us to find Ms. Keisling’s current appeal
to be frivolous. During oral argument, this request was withdrawn in an effort by Ms. Evins
to finally resolve all matters.
The trial court is affirmed. Costs of appeal are assessed to the appellant, Ms. Sharon
Keisling, for which execution may issue if necessary.
______________________________
PATRICIA J. COTTRELL, P.J., M.S.
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