Request By:
Mr. William J. Deupree, Jr.
Attorney at Law
402 City-County Building
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have stated that in Kenton County the Master Commissioner fee was added to the Circuit Clerk's bill and collected by the Clerk, when necessary, by issuing an execution against the payor's property. You have asked whether there have been any rule changes which would change this practice. You have also asked whether the Clerk or the Master Commissioner may continue to collect the fees by execution both for cases handled before 1978 on which the fees are yet unpaid, and on cases handled since 1978.
The rules did change in 1978. Before 1978, compensation for commissioners was set out in CR 53.01 which provided in part:
"The compensation to such commissioner . . . shall be fixed by the court where the fees for duties performed are not fixed by statute, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody or control of the court, as the court may direct. The commissioner shall not retain his report as security for his compensation; but when the party ordered to pay the compensation does not pay it after notice and within the time prescribed by the court, the commissioner is entitled to a writ of execution against the delinquent party."
CR 54 was revised in 1978. However, the provisions are still essentially the same. Now, compensation is provided for in CR 53.07 which provides in part:
"The compensation of commissioners shall be by fee charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody or control of the circuit court. . . . Rates of compensation shall be in accordance with a schedule or schedules published by the Administrative Office of this court."
But, the Commissioner still has the right to collect his fees by way of execution pursuant to CR 53.06(5) which provides:
"The commissioner shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the commissioner is entitled to a writ of execution against the delinquent party."
Thus, the Commissioner is entitled to collect his fee by way of execution both in pre- and post-1978 cases. Apparently the Commissioner may collect his fees apart from the other court costs pursuant to CR 53, or may permit them to be added to the other court costs pursuant to CR 54 and be collected as a part thereof under CR 69 and 70.