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In re Marriage of Bergmann

Court of Appeals of Kansas

June 14, 2013

In the Matter of the Marriage of Julie A. Bergmann, Appellee,
v.
Robert A. Sokol, Appellant. and

SYLLABUS BY THE COURT

1. Amendments to K.S.A. 60-211 by our legislature in 2010 reinstated the district court's authority to impose sanctions as an act of discretion.

2. Appellate courts now consider the imposition of sanctions under K.S.A. 2011 Supp. 60-211 using an abuse of discretion standard of review.

Appeal from Johnson District Court; Thomas E. Foster, Judge

Robert Alan Sokol, pro se appellant.

J. Eugene Balloun, of Shook, Hardy & Bacon L.L.P., of Kansas City, Missouri, for appellee.

Before Hill, P.J., Pierron and Schroeder, JJ.

Schroeder, J.

Robert A. Sokol appeals the district court's setting of guardian ad litem (GAL) fees at $175 per hour and the assessment of sanctions against him pursuant to K.S.A. 2011 Supp. 60-211. This is the eighth appeal before our court involving this family. Having reviewed the record before the district court, we find the district court did not abuse its discretion and affirm its decision.

FACTS

The parties have been litigating custody issues since 1993. As the litigation continued, the district court requested Karen Snyder to serve as GAL in September 2010. In an e-mail, the district court set Snyder's compensation at $100 per hour and required each party to deposit $750 with the clerk's office for her fees. On November 1, 2010, the district court cancelled Snyder's appointment and ordered her to be paid at the "previously determined" rate of $175 per hour. The court also stated: "Ms. Snyder is asked to submit an itemized statement to the Court and to the parents, together with an Order for Pay Out for the court's signature."

Sokol e-mailed Snyder on November 29, 2010, asking if she had sent the itemized billing. Snyder replied she would submit the billing later that day. On January 6, 2011, Sokol again e-mailed Snyder, asking for her billing. Snyder did not respond.

In his April 26, 2011, pro se Motion For Return of Deposit and Sanctions, Sokol said Snyder had failed to provide a billing. Additionally, Sokol argued Snyder's husband had worked at the same firm as Julie A. Bergmann's attorney, J. Eugene Balloun, thereby creating a conflict of interest. Sokol asked for reimbursement of his deposit, interest on his deposit, attorney fees, and for Snyder to be sanctioned.

Sokol's motion called the deposit retention "conscious theft, " asked for Snyder's removal from the GAL list for 18 months, questioned why a GAL would act in this manner, and asserted that "to find a bad apple in this bunch looks bad for all [GALs]." He challenged Snyder's ability to be a GAL, comparing her actions with other "shenanigans" in the CINC proceeding.

GAL Snyder responded, claiming Sokol's request for sanctions was "improper and unfounded" and asserting that her husband's prior employment 11 years ago was irrelevant. She requested approval of her fees and denial of Sokol's request for sanctions.

Sokol's next reply came on July 21, 2011 through counsel, raising the same issues and claiming Snyder's fees and billing practices violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582). He asked for return of his deposit, court costs, attorney fees, and sanctions, along with an audit of Snyder's GAL work.

On July 26, 2011, Bergmann filed a supplemental response to Sokol's motions, asking for approval of the GAL fees and for sanctions against Sokol and his attorney pursuant to K.S.A. 2011 Supp. 60-211(b) and (c).

On July 28, 2011, the district court heard the pending motions for sanctions. Snyder testified she continued to receive e-mails from both parties requesting her involvement even after her appointment was cancelled. She also testified about her poor health in January and February. She stated Sokol's motion contained "horrible statements of a personal nature [going] far beyond his issue with me submitting fees." ...


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