Request By:
Mr. G. Stephen Manning
President
Mason County Bar Association
227 Sutton Street
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Mason County Bar Association and the Mason Circuit Court Clerk have asked you to obtain an opinion of this office concerning KRS 403.090, which permits the fiscal court, by resolution, to authorize appointment of a "friend of the court" by the circuit judge, where the circuit court has (1) circuit judge. Subsection (6) of KRS 403.090 provides that the fiscal court, of any county which has authorized such appointment, shall, by resolution, fix a reasonable compensation for the "friend of the court" and make a reasonable allowance for his necessary expenses, equipment and supplies, payable out of the general fund of the county, upon approval of the judge or judges appointing him.
Your questions are as follows:
May the circuit judge order a fee, based on a percentage of the sums ordered to be paid for the care and maintenance of minor children, be added to the child support payments for the purpose of reimbursing fiscal court for the compensation and expenses of the "friend of the court?"
Also, may the "friend of the court" be additionally compensated for services rendered pursuant to KRS 403.090(3) and (4) by taxing same as court costs to be assessed against the appropriate party?
The "friend of the court" must be a licensed practicing attorney. As such, it is his duty to supervise and enforce the payment of sums ordered by the circuit court in divorce actions to be paid for the care and maintenance of minor children. The friend of the court must investigate cases where payments are delinquent and bring the delinquent party before the court when necessary to compel payment. He shall report to the court any instances of a failure to provide proper care or maintenance of children in the divorce situation. The court, in divorce actions, may direct him to investigate facts relative to the children's rights and interests and concerning the care, custody, and maintenance of the children.
Concerning the first question, we are unaware of any statutory authority for the circuit judge's ordering a fee, based on a percentage of the child support payments and added to such payments, for the purpose of reimbursing fiscal court for the compensation and expenses of the "friend of the court."
It has been written that in the absence of any statutory provision in reference thereto, "it is for the court alone to determine what expenditures are necessary to carry on the business of the court." The point is that courts have inherent power to order paid all expenses necessary for holding court. 21 C.J.S., Courts, § 14, page 28. However, the legislature has preempted the funding of the compensation and expenses of the friend of the court by enacting the express and explicit provisions of subsection (6) of KRS 403.090. Thus the otherwise power of the court is controlled by KRS 403.090(6). 21 C.J.S., Courts, § 14, page 28, and Edwards v. Prutzman, Pa., 165 A. 255.
As the court said in Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949), a court must first comply with reasonable fiscal regulations of the legislature. "Should the legislature, or the county salary board, act arbitrarily or capriciously and fail and neglect to provide a sufficient number of court employes or for the payment of adequate salaries to them, whereby the efficient administration of justice is impaired or destroyed, the court possesses the inherent power to supply the deficiency. Should such officials neglect or refuse to comply with the reasonable requirements of the court they may be required to do so by mandamus. " (Emphasis added).
Thus the circuit court is presently controlled by KRS 403.090(6), relating to the fiscal court's funding of the compensation and expenses of the friend of the court. However, should a fiscal court fail, arbitrarily and capriciously, to fund such compensation and expenses such as to impair or destroy the efficient administration of justice in such cases, the court can require the fiscal court, even under mandamus, to fund such compensation and expenses to the "reasonable" level required by KRS 403.090(6).
We reach the same conclusion as to your question no. 2, since subsection (6) of KRS 403.090 is designed to fund the compensation and expenses of the friend of the court for any and all of the various functions which the friend of the court may be called upon to perform by the court.