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IN RE: LESLIE KAREN NEWSOM

AUGUST 17, 1988

IN RE: LESLIE KAREN NEWSOM, petitioner




BEFORE DAN LEE, P.J., ROBERTSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

The Court today addresses the question of whether

guardian ad litem fees are properly taxable as costs of appeal, prepayment of which are indispensable to the processing of an appeal to this Court.

 Karen Newsom, Petitioner in this extraordinary writ action under Supreme Court Rule 21, is aggrieved of an order divesting her of custody of her children in favor of their natural father, Henry Eugene Newsom. The final order, entered on January 30, 1988, came after lengthy proceedings before Chancellor Sebe Dale, Jr. On February 16, 1988, Karen Newsom filed a notice of appeal under Supreme Court Rule 3, triggering the additional requirements of cost estimate and record designation under Rules 10 and 11. The Chancery Clerk duly prepared a cost estimate totalling $12,584.42. Of this sum, $10,500.00 was delineated as a fee to the children's guardian ad litem. Karen Newsom paid all fees with the exception of the guardian ad litem fee, provoking a motion by the Chancery Clerk under Rule 11 (b)(2) to increase the cost deposit. That motion was granted and the Chancery Clerk was instructed not to prepare or transmit the record until Mrs. Newsom tendered the additional $10,500.00. Mrs. Newsom appeals this ruling via petition for extraordinary writ (mandamus).

 II.

 Quite simply, this case poses a single question: Is a guardian ad litem fee under M.R.C.P. 17 (d) a" cost of preparation of the record on appeal "under Supreme Court Rule 11 (b)(1)? We hold that it is not and grant the writ of mandamus.

 There is no doubt that our civil rules prescribe that a guardian ad litem be compensated for his or her efforts, and that the monies so ordered be taxed as court costs. M.R.C.P. 17 (d) provides, in relevant part, that

 In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action.

 In this case, however, Supreme Court Rule 11 (b)(1) controls our analysis for we deal not with whether the guardian ad litem must be compensated but with the separate issue of whether such payment is a prerequisite to securing an appeal. The controlling portion of 11 (b)(1) states that

 within seven (7) days after filing a notice of appeal,

 the appellant shall estimate the cost of preparation of the record on appeal, including but not limited to, the cost of the preparation of the transcript, and shall deposit the sum with the clerk of the court whose judgment or order has been appealed.

 This rule clearly indicates that before a record shall be prepared and forwarded to this Court, all costs necessary to the completion and transmission of the record shall be paid to the clerk. While the guardian ad litem's fee is an important facet of these proceedings, it is by no means a cost necessary to the preparation of the record. Consequently, it is more properly a cost which should be assessed and taxed after this Court resolves the appeal of the judgment which forms the crux of this appeal. See Supreme Court Rule 36 (a).

 Admittedly, M.C.A. 11-51-29 (Cum. Supp. 1987), relied on by the lower court, may be interpreted to require all court costs to be prepaid upon the taking of an appeal. *fn1 Looking to Rule 11 (b)(1), however, we find the statutory language subject to the Rule's clear limitation of prepaid costs to those essential to the processing of the appeal. See official comment to Supreme Court Rule 1 (" All statutes, other sets of rules, orders, or decisions in conflict with these rules will otherwise be of no further force or effect. ")

 For the reasons stated above, we grant the writ of mandamus and instruct the Chancery Clerk of Forrest County to complete and transmit the record for ...


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