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Joseph Michael Abolafia v. Rebecca Reeves

April 26, 2012

JOSEPH MICHAEL ABOLAFIA,
PLAINTIFF-RESPONDENT,
v.
REBECCA REEVES,
DEFENDANT-RESPONDENT.
KENNETH PAUL ADLER, GUARDIAN AD
LITEM,
APPELLANT.



Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Bonner County. The Hon. Benjamin R. Simpson, District Judge; the Hon. Debra A. Heise, Magistrate Judge.

The opinion of the court was delivered by: Eismann, Justice.

2012 Opinion No. 65

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

The appellant in this case had been appointed as a guardian ad litem for children whose parents were involved in a proceeding to modify the custody provisions of their divorce decree. After the parties reached an agreement to resolve their dispute and the magistrate court terminated the appellant as the guardian ad litem, the appellant sought to appeal, challenging his termination. The district court held that he did not have standing to appeal, and it dismissed the appeal and awarded attorney fees to the parents pursuant to Idaho Code section 12-121.

I.

Factual Background.

Joseph M. Abolafia (Father) and Rebecca Reeves-Abolafia (Mother) were divorced by a decree entered on August 29, 2006. The decree awarded the parties joint legal and physical custody of their two minor children, with the children's primary residence being with Mother. On May 9, 2007, Mother filed a petition to modify the decree by granting her sole legal custody of the children with respect to health and education issues. On May 15, 2007, Father filed a motion to appoint a guardian ad litem for the children, and at the hearing on that motion the parties orally stipulated that a guardian ad litem be appointed.

By order entered on June 12, 2007, the magistrate court appointed Kenneth Adler as the guardian ad litem. He was ordered to "prepare a written report for the Court concerning the child [sic] and his [sic] present circumstances and submit the report to the Court and counsel." Each party was to pay one-half of the cost of Adler's services. During the ensuing eight months, Adler did not submit any report to the court.

On January 18, 2008, Adler filed a motion to join the children as parties to the action, to be permitted to file an independent claim on their behalf, and to require Mother to respond to discovery promulgated by Adler. Mother filed a motion to terminate the appointment of Adler as guardian ad litem on the grounds that the parties had negotiated a settlement to resolve the issues between them and that the continued appointment of Adler would increase the fees for all parties. The parties also filed their written stipulation to modify the child custody provisions of the divorce decree.

The various motions were scheduled for hearing at the pretrial conference on February 4, 2008, which was three weeks before the trial. Before deciding which motion to take first, the magistrate court addressed the parties regarding the stipulation to resolve the motion to amend the decree. Under the stipulation, the decree would not be modified as to joint legal custody, but it would be modified as to the times Father would have physical custody of the children. Counsel for both parties stated that they agreed to the stipulation and that the parties' abilities to communicate had improved during the process. In fact, counsel stated that it was the parties who negotiated the stipulation between themselves. The parties also stated to the magistrate that they were communicating much better. The court went over the terms of the stipulation, and Adler stated that in his opinion there was nothing wrong with the schedule the parties had agreed upon. When asked whether, considering the best interests of the children, Adler approved of the structure of the visitation schedule, he stated that he did. His objections were that he had not been consulted regarding the stipulation and that he wanted the parties to litigate other issues not covered by the stipulation.

After considering the comments by the parties and their respective counsel and Adler's comments, the magistrate court stated that it accepted the stipulation, and it orally granted the motion to terminate Adler as guardian ad litem. On February 15, 2008, the court entered the order terminating Adler as guardian ad litem and the order modifying the divorce decree pursuant to the parties' stipulation.

On March 21, 2008, Adler, acting pro se, filed a notice of appeal, stating that he was appealing from the order modifying the divorce decree and from the order terminating him as guardian ad litem. The issues that he sought to raise on appeal were:

1. The GAL [guardian ad litem] having claimed by motion an interest in the subject matter of the litigation, and having sought to be joined in the action, joinder was mandatory [under Rule 19(a)(1)], and the court erred in refusing to grant joinder.

2. The magistrate violated the children's, and the GAL's, due process rights by depriving them of the opportunity to participate in the action as parties in thier [sic] own right.

3. The magistrate's decision to dismiss the GAL and proceed to dispose of the case on its merits, was an abuse of discretion.

4. Where the court has appointed a guardian for the children, the guardian has accepted those duties, his standing to appeal adverse rulings is the same as for any party, and his decision to pursue such an appeal is properly within the scope of his appointment, particularly where the appeal challenges an erroneous dismissal.

Adler sought to be reinstated as the guardian ad litem, to be "joined and named as an Independent Claimant," to be permitted to file his independent claim, and to have the order ...


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