Guardian ad litem’s authority on appeal left unresolved

The Missouri Supreme Court ruled Tuesday that the guardian ad litem in a St. Charles County divorce case can keep the attorney fees she earned for an appeal, but it sidestepped the larger issue of whether her participation in the appeal was allowed in the first place.

In a unanimous, unsigned opinion, the high court said the man who had challenged attorney Christine Miller Hendrix’s fees had failed to preserve the issue for appeal.

The ruling leaves in place an earlier judgment by St. Charles County Circuit Judge Ted House, who had ordered that Hendrix be paid $6,228 for appellate work stemming from the divorce of Karen M. Brown and Anthony T. Brown. Hendrix had been appointed guardian ad litem for the couple’s children, and she participated in an appeal filed by the husband over a custody order.

In late 2012, the Court of Appeals Eastern District ruled that Missouri statutes make no specific provision for guardians ad litem to participate in appeals custody matters, so Hendrix would have to return the money. One panel member, Judge Lawrence E. Mooney, concurred “reluctantly” and urged either the Supreme Court or the General Assembly to “authorize the participation of guardians ad litem in our appellate courts.”

The Eastern District’s ruling was vacated when the Supreme Court took the case, which it heard in October. In its ruling on Tuesday, the high court did not address Anthony Brown’s argument that Hendrix didn’t have standing to assert the rights of the children on appeal. According to the opinion, Brown “failed to raise the issue or pursue any remedies, if any were available, at the appropriate time” — either in the trial court or in the first appeal.

The court dismissed Anthony Brown’s appeal and affirmed the original judgment, which had ordered Anthony Brown to pay all but $2,500 of Hendrix’s fee.

Benicia Baker-Livorsi, an attorney for Hendrix, said Tuesday that the issue of guardians ad litem’s appellate authority is likely to come up in other cases — particularly now that Hendrix’s case has highlighted the issue and laid out what complaining parties would need to do to preserve their appeal.

A number listed in court records for Anthony Brown’s attorney, Alan Kimbrell, was no longer in service.

The case is Karen M. Brown v. Anthony T. Brown, SC93238.