Who Pays The Warning Order Attorney In An In Forma Pauperis Proceeding?

Spees v. Kentucky Legal Aid 2006 WL 1791154 (Ky. App.)

Discretionary review granted 2/22/07

Issue and Holding:

Whether court appointed attorney is statutorily entitled to be paid for his services. The Court held yes, court appointed attorney was entitled to compensation, however no responsible party existed to pay the attorney.

Facts:

A wife, represented by Kentucky Legal Aid, filed a petition for dissolution of marriage. The family court granted her in forma pauperis status under KRS 453.190. Since the wife told the court that her husband was not a resident of Kentucky, the family court appointed a warning order attorney, Spees, to notify the husband of the pending action.
As required by CR 4.07 Spees filed his warning order attorney report in a timely manner, noting that he was unsuccessful in contacting the husband. Spees filed a motion for $150 fee, asking that the wife or Kentucky Legal Aid pay his fee. The wife argued that her in forma pauperis status exempted her from paying the fee and argued that either her husband, who was not personally before the court, or the Commonwealth, who was not a party, should pay the fee.
The family court denied Spees’ motion for his fee, finding that the wife was not required to pay and that the Commonwealth was not required to pay. Two weeks prior to the court granting the dissolution of marriage, Spees filed an appeal.

Analysis:

First, the Court dismissed Kentucky Legal Aid as a party to the appeal, since they were not a party below. Second, the Court affirmed that Spees had standing to bring an appeal even though he was not a party below, since the Court has consistently required attorneys to become parties on appeals from judgments involving attorney fee disputes. Third, the Court held that Spees’ premature filing of the appeal fell under the “relation forward” doctrine, and therefore did not dismiss his appeal.
As for the merits of the appeal, the Court found that Spees suffered a taking of his property without just compensation under the Fifth Amendment to the United States Constitution and section 13 of the Kentucky Constitution. However, the Court also found that no party was responsible for paying the fee. The Court found the wife was exempt due to her in forma pauperis status, Kentucky Legal Aid was exempt because they were not a party to the action, the husband was exempt since the family court had no personal jurisdiction over him, and the Commonwealth was exempt since it was not a party to the action.
Accordingly, the Court affirmed the lower court’s order denying Spees’ request for fees.