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Adkins v. Sotolongo

Florida Court of Appeals, Third District

September 20, 2017

Christa Adkins, Petitioner,
v.
Michael Sotolongo, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County Lower Tribunal No. 07-18012, George A. Sarduy, Judge.

          Christa Adkins, in proper person.

          Abramowitz and Associates, and Evan L. Abramowitz, for respondent Michael Sotolongo.

          Phillips Lanier, PLLC, and Emily Joyce Phillips, as former Guardian ad Litem.

          Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.

          ROTHENBERG, C.J.

         What began as a child custody dispute between Christa Adkins, the mother, and Michael Sotolongo, the father, has now developed into a dispute relating to the reasonableness of the fees charged by the court-appointed guardian ad litem ("the guardian") and the guardian's attorney and as to what extent Ms. Adkins should be responsible for those fees. Ms. Adkins, who was ultimately granted full custody of the minor child, contends that the fees demanded are unreasonable, and the record appears at least partially to support that belief as the guardian has "corrected" some of her billings during the litigation over her fees.

         The matter currently before this Court is Ms. Adkins' certiorari petition, wherein she contends that the trial court departed from the essential requirements of law, resulting in irreparable harm that cannot be remedied on direct appeal, by ordering Ms. Adkins, who has been declared to be indigent, to advance the guardian's fees and the guardian's attorney's fees prior to the taking of the guardian's deposition. Ms. Adkins wishes to depose the guardian to address the basis for the fees demanded by the guardian in connection with the guardian's services during the child custody dispute. Because the guardian's fees have not yet been paid, the guardian sought, and was granted, an order by the trial court requiring Ms. Adkins to pay for the fees associated with the taking of the guardian's deposition as a prerequisite to actually taking the deposition. In other words, Ms. Adkins must pay to play.

         We conclude that the trial court's order both departs from the essential requirements of law and is in violation of a prior opinion issued by this Court. See Adkins v. Sotolongo, 197 So.3d 1233 (Fla. 3d DCA 2016). In Adkins, the trial court's order regarding the payment of the guardian's fees was the subject of the appeal. In reversing the order, this Court noted:

"[T]here [were] no findings in the order or record on appeal supporting the [guardian's] requested fees, what those services were or their claimed value . . . [and] nothing in the order on appeal or the record before us to indicate the trial court made any determination of the Mother's or Father's current ability to pay the court-appointed guardian fees."

Adkins, 197 So.3d at 1234-35 (citation and footnote omitted). The opinion further states: "We do not dispute that the court-appointed guardian is entitled to payment but require that on remand the trial court determine both the party or parties responsible for payment of the guardian's fees and costs and the proper amount due." Id. at 1235.

         On remand, Ms. Adkins sought discovery, including the guardian's deposition, specifically related to the issue on remand-the evidence of the services performed by the guardian and the reasonableness of her requested fees. The guardian objected to spending any more of her time without being paid. While the guardian's frustration with not having been paid for her services is understandable, to require Ms. Adkins to pre-pay for the taking of her deposition was error in this case.

         First, we note that Ms. Adkins has indigency status. Second, the trial court has not yet determined which of the parties are responsible for the payment of the guardian's fees. Third, the trial court has not yet made a determination as to Ms. Adkins' ability to pay for either the fees owed or the costs associated with the discovery deposition of the guardian. It was therefore error to require Ms. ...


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