A father disputing his required payment for guardian ad litem services in an ongoing divorce and child custody proceeding must wait until the final judgment in the case before appealing the fee charge, the Supreme Court of Ohio ruled today.

A Supreme Court majority ruled that an appeal regarding more than $17,000 in outstanding payments was filed prematurely with the Eighth District Court of Appeals. The Supreme Court vacated the Eighth District’s decision which determined the merits of the appeal filed by the father, who was identified in court records as “E.A.K.M.”

Writing for the Court, Justice R. Patrick DeWine explained the Eighth District prematurely considered the appeal, citing the extraordinary circumstances in the case. He wrote that the law allowing for immediate appeals establishes categories of disputes that are final orders, which can be appealed. The appeals court should have considered whether guardian ad litem fee payments are final orders, which they are not, rather than the circumstances of the case, he wrote.

Justices Patrick F. Fischer, Jennifer Brunner, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion. Chief Justice Sharon L. Kennedy concurred in judgment only.

Refiled Divorce Case Leads to Fee Dispute
E.A.K.M., and his spouse, identified as “M.A.M.,” filed for divorce in 2019 in Cuyahoga County Domestic Relations Court. The court appointed Peter Kirner as the guardian ad litem for their minor children.

The parents were ordered to pay Kirner’s fee. They were making payments to Kirner as the case progressed. Two weeks prior to the trial in 2022, Kirner filed a motion seeking the remainder of the fees that were owed. The trial court had not ruled on his motion on the scheduled date of the trial.

On the morning of the trial, the court dismissed the case at the mother’s request. The judge also dismissed all pending motions in the case without ruling on Kirner’s request for payment.

Weeks later, the couple reinstituted the divorce proceedings. Kirner continued in his role as guardian ad litem in the second case. He filed another motion requesting pay for services from July 2019 through April 2023.

Kirner told the trial court he received about $36,354 from the couple, but that $17,791 in fees were not paid. The trial court granted Kirner’s motion, ordering the parents to pay their proportionate share of the fees.

E.A.K.M. appealed the decision to the Eighth District. Initially, the Eighth District dismissed the case, citing a lack of jurisdiction. It stated that an order to pay guardian ad litem fees without a final decision as to custody was an interlocutory order and not a final appealable order.

The father asked the court to reconsider, and it agreed to consider the case “due to the unusual circumstances of this appeal.” The Eighth District vacated the order requiring the parents to pay Kirner’s fees.

The Eighth District concluded the fee order was final and appealable under R.C. 2505.02(B)(2). The court found because the 2019 case was dismissed, E.A.K.M. would lose his rights to a meaningful review of his challenge to the fees if they were not considered at this point in the proceedings.

Kirner appealed the decision to the Supreme Court.

Supreme Court Analyzed Fee Order Appeal
Justice DeWine explained that whether a guardian ad litem fee order can be appealed in the middle of a divorce proceeding depends on whether it is a “final order.” Appeals courts are authorized by the Ohio Constitution to review judgments of final orders.

Generally, all orders in a case must be reviewed in a single appeal after the lower court’s final judgment. However, R.C. 2505.02 provides exceptions to certain trial court decisions that can be appealed before a final judgment.

One exception allows the appeal of an order made in a special proceeding if it affects a substantial right. An immediate appeal is allowed only if it is necessary to protect the right effectively, the opinion noted.

A parent being assessed a cost to pay a guardian ad litem does not involve a substantial right, because there is not any entitlement to have guardian ad litem fees assessed or not assessed, the Court noted.

Even if there was a substantial right not to pay the fee, E.A.K.M. would have to establish how his rights would be “affected” by having to wait until there was a final judgment in the divorce case, the opinion stated.

“Pretrial guardian ad litem fee orders are not the types of orders that require an immediate appeal to ensure effective relief. Just as a trial court can order the payment of fees to a guardian ad litem during the pendency of a case, they can also order the refund of any overpayments at the end of the case,” the opinion explained.

The Court noted that if E.A.K.M. appeals the fees at the conclusion of the case, the appeals court can then determine if fees to Kirner were improper and order reimbursement of any excess fees.

2024-0587. E.A.K.M. v. M.A.M., Slip Opinion No. 2025-Ohio-2946.

View oral argument video of this case.

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