IN RE ESTATE OF ADAH REED HOLLENBECK, DECEASED. LAVERA J. BROWN, INDIVIDUALLY AND AS NEXT FRIEND OF LESTER E. HOLLENBECK, AND AS ADMINISTRATRIX OF THE ESTATE OF ADAH REED HOLLENBECK, DECEASED; AND NELLIS HOLLENBECK, JR., APPELLANTS,
v.
PAUL H. BRINSON, INDIVIDUALLY, AND AS GUARDIAN AD LITEM FOR THE MINOR, LESTER E. HOLLENBECK, APPELLEE

Fla. 3d DCA | 1962-02-12
No. 61-191
Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.
137 So. 2d 854 Florida District Court of Appeal, Third District (1962) Positive Treatment
Cited by 4 cases

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Synopsis

The Florida District Court of Appeal reversed and remanded a probate court's award of $1,000 in fees to a guardian ad litem for representing a minor heir in connection with estate sale petitions, finding the award grossly excessive and requiring a new hearing with proper notice and supporting evidence.


Holding

The award of $1,000 was grossly excessive and must be reversed. The court must apply proper judicial discretion by allowing only reasonable fees supported by appropriate proofs (testimony, affidavits, or other evidence), and a new hearing must be held after providing notice to affected parties as required by statute.


Key Quotes

“Allowance of a fee to such a guardian ad litem is a matter largely within the sound judicial discretion of the court making the appointment. But such discretion is to be exercised to allow only fees which are reasonable compensation for the services performed in view of the applicable circumstances.”

Establishes the standard for reviewing guardian ad litem fee awards—discretionary but limited to reasonable compensation supported by evidence.

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Facts & Procedural History

The administratrix of an intestate estate filed three petitions to sell real estate and automobiles totaling $54,500. The estate had three heirs: the …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the heirs and ad-ministratrix of an intestate from an order allowing a fee to a guardian ad litem for the minor heir, for his services incident to the applications of the administratrix for leave to sell certain real estate and two automobiles, and from an order denying their petition for rehearing and for reduction of the fee allowance. The appellee did not file a brief as required by Rule 3.7 (b) F.A.R., 31 F.S.A.

The administratrix filed three petitions to sell several parcels of real estate and two automobiles, for a total of $54,500. The three heirs were a daughter, Lavera J. Brown who was the administratrix, and two sons, Nellis J. and Lester Earl Hollen-beck, both residing in Erie, Pennsylvania, and aged 29 and 17 years, respectively. A guardian ad litem was appointed to represent the minor in connection with the petitions for sale. Sections 732.54 and 733.23, Fla.Stat., F.S.A.

The sales of property which the guardian ad litem was called upon to investigate in the interest of the minor heir, had been recommended by the administratrix and were favored by the two adult heirs. The guardian ad litem for the minor filed answers to the sale petitions, approving the proposed sales as being for the best interest of the estate, and the court granted the sale petitions. The guardian petitioned for fees. It appears that the attorney for the admin-istratrix had notice but was not present when the fee petition was acted upon,1 and that notice was not given to the heirs.2 On *856the basis of the court file and the guardian’s petition unsupported by affidavits or other proof, an order was entered allowing the guardian ad litem a fee of $1,000, charged to the estate. The petition of the guardian ad litem listed the answers which had been filed to the petitions for sale, recited the filing of his oath and that the hearings on the petitions had been attended. The petition added that the guardian ad litem had investigated files and records and had conferred with counsel with respect to the sales, and that he had inspected the property involved in two of the petitions. The petition filed on behalf of the heirs and administratrix for rehearing and to reduce the allowance represented that the services performed by the guardian ad litem were routine, that they consumed only approximately four hours of time, and that the minimum fee suggested by the Dade County Bar Association indicated $50 for such representation of a minor by a guardian ad litem for a sale of property, or $150 for the three sales.

Allowance of a fee to' such a guardian ad litem is a matter largely within the sound judicial discretion of the court making the appointment. But such discretion is to be exercised to allow only fees which are reasonable compensation for the services performed in view of the applicable circumstances. And the party moving for the fee has the burden to show, by appropriate proofs, through testimony, affidavits or otherwise, the services performed and their reasonable value. See Lewis v. Gramil Corp., Fla.1957, 94 So.2d 174.

Under the circumstances disclosed in this case, the award appears grossly excessive. Accordingly, the order appealed from is reversed and the cause is remanded for reconsideration by the county judge, on hearing after notice as required by § 734.01(2) Fla.Stat., F.S.A., on the guardian ad litem’s petition for fee and on the proofs or evidence which may be presented.

Reversed and remanded.


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Cited By

  • …rendered to the ward. In seeking such fees, the guardian has the burden to establish through appropriate proof that the services claimed were actually performed and that the fees claimed for those services are reasonable. In re Estate of Hollenbeck, 137 So. 2d 854, 856 (Fla. 3d DCA 1962) (citing Lewis v. Gramil Corp., 94 So. 2d 174, 176 (Fla.1957)). Based on that proof, the probate court has the discretion to determine the amount of the fees to which the gdardian is reasonably entitled. See, e.g., In re Guard…
  • Christa Adkins v. Sotolongo, 197 So. 3d 1233 (Fla. 3d DCA 2016)
    …ications, absent a pleading and proof of compelling circumstances). Finally, there are no findings in the order or record on appeal supporting the GAL’s requested fees, what those services were or their claimed value. See In re Hollenbeck’s Estate, 137 So. 2d 854, 856 (Fla. 3d DCA 1962) (holding the trial court has discretion to allow guardian ad litem fees if reasonable under the circumstances, and the party moving for the fees has the burden to show through testimony, affidavits or otherwise, the services…

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