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AGO 1956 No. 270 - May 16, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

FEES -- APPEARANCE FEES -- GUARDIAN AD LITEM MINOR DEFENDANT -- DEFAULT DIVORCE

Neither the appointment of a guardian ad litem for a minor defendant in a divorce action upon the application of the plaintiff, nor the guardian's oral report to the court at the time a default judgment is entered against the defendant, constitutes an appearance requiring the defendant to pay an appearance fee to the clerk of the superior court.

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                                                                   May 16, 1956

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County Court House
Everett, Washington                                                                                                              Cite as:  AGO 55-57 No. 270


Attention:  Mr. John N. Leavitt, Deputy

Dear Sir:

            We are in receipt of your letter requesting an opinion from this office on a question which we paraphrase as follows:

            Does either the appointment of a guardian ad litem for a minor defendant in a divorce action, upon the application of the plaintiff, or the oral report of said guardian to the court at the time a default judgment is taken against the minor defendant, constitute an appearance by the defendant, for which an appearance fee must be paid to the clerk of the superior court?

            We answer your question in the negative.

                                                                     ANALYSIS

            The pertinent statutes are set forth as follows:

             [[Orig. Op. Page 2]]

            RCW 4.28.210

            "A defendant appears in an action when he answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance.  After appearance a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared, service of notice or papers in the ordinary proceedings in an action need not be made upon him.  Every such appearance made in an action shall be deemed a general appearance, unless the defendant in making the same, states that the same is a special appearance."

            RCW 4.08.050

            "When an infant is a party, he shall appear by guardian, or if he has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint a guardianad litem as herein provided:

            "(1) When an infant is plaintiff, upon the application of the infant, if he is of the age of fourteen years, or if under that age, upon the application of a relative or friend;

            "(2) When an infant is defendant, upon the application of the infant, if he is of the age of fourteen years, and applies within thirty days after the service of the summons; if he is under the age of fourteen, or neglects to apply, then upon the application of any other party to the action, or of a relative or friend of the infant."

            RCW 27.24.070, RCW 36.18.020 and RCW 2.32.320 authorize county clerks to collect appearance fees from defendants who make appearances in actions.

            The term appearance in its common and particular use signifies an overt act by which a person against whom a suit has been commenced submits to the jurisdiction of the court.  6 C.J.S. 4, Appearances, § 1  [[Orig. Op. Page 3]] (a). An intention to appear is ordinarily requisite to render an act or course of conduct an appearance.  An appearance may not be inferred except as a result of acts from which an intent to do so may properly be inferred.  6 C.J.S. 19, Appearances, § 12 (a).

            This office, in a letter to the Bureau of Inspection and Supervision of Public Offices under date of March 29, 1917, held that the appearance of a guardian ad litem is no different from the appearance of any other party.  A guardian ad litem will be charged an appearance fee only in situations in which an appearance fee would be normally charged to other parties.

            An opinion of this office under date of June 27, 1918, to Mr. Alfred H. Lundin, prosecuting attorney for King County, 17-18 OAG 312 [[1917-1918 OAG 312]], held that in cases where it was the duty of the court under the soldiers' and sailors' civil relief act to appoint an attorney, upon application of the plaintiff, to represent the defendant who was in military service, no appearance fee could be charged to the defendant as such appearance was without the latter's authorization and made at the behest of the Federal government.

            The mere corporal presence of the defendant in court at the time a default judgment against him is rendered does not constitute an appearance.  McCoy v. Bell, 1 Wash. 504.

            By having a guardian ad litem appointed for him on the application of the plaintiff, the defendant neither answers, demurs, makes any application for an order nor gives plaintiff written notice of his appearance within the language of RCW 4.28.210.  Therefore, under the authority we have cited, he cannot be deemed to have made an appearance for which a fee should be charged.  We do not feel that such an appointment is an act from which an intention to submit to the jurisdiction of the court can be inferred.  The appointment and oral report are made without the authorization of the minor defendant.

            Neither does the fact that the guardian must report orally to the court at the time of the default hearing constitute an appearance.  A guardian ad litem is an officer of the court, and the court may require the guardian to report as to his conduct of the guardianship.  The guardian's report to the court at the time of the default hearing in a divorce case cannot be regarded as an application for any relief in the divorce action but merely as a statement to the court as to the management of the guardianship.

             [[Orig. Op. Page 4]]

            We, therefore, conclude that neither the appointment of a guardian ad litem upon the application of the plaintiff for a minor defendant in a divorce action nor his oral report to the court at the time a default judgment is rendered against the defendant, is an appearance for which an appearance fee should be paid to the clerk of the superior court.

Very truly yours,

DON EASTVOLD
Attorney General


DUANE S. RADLIFF
Assistant Attorney General

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