1

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

VICKIE L. HYLTON,

Guardian ad Litem for Respondent Below, Petitioner

v.) No. 23-ICA-222 (Fam Ct. Fayette Cnty. No. FC-10-2020-D-295)

ANDREW P.,

Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Vickie L. Hylton appeals the Family Court of Fayette County’s April 25, 

2023, Final Divorce Order and Order on Reconsideration of Hylton Fees. Respondent 

Andrew P.1 did not participate in this appeal.2 The issue on appeal is whether the family 

court erred by significantly reducing Ms. Hylton’s hourly billing rate and amount of fees 

for the guardian ad litem (“GAL”) services she provided below based upon its 

determination that her hourly rate was unreasonable considering some of the services she 

provided.3

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds that there is error in the family court’s decision but no 

substantial question of law. This case satisfies the “limited circumstances” requirement of 

Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision. 

For the reasons set forth below, the family court’s orders are reversed, and this case is 

remanded for further proceedings consistent with this decision.

1 Consistent with the long-standing practice in cases with sensitive facts, we use 

initials where necessary to protect the identities of those involved in this case. See In re

K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R., 230 W. Va. 731,

742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State

v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

2 Vickie L. Hylton is self-represented.

3 Below, Ms. Hylton was appointed as GAL for Jenny P. who is not a party to this

appeal. 

FILED

March 25, 2024

C. CASEY FORBES, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

On December 21, 2020, Andrew P. filed a divorce petition against Jenny P. in the 

Family Court of Fayette County. Jenny P. had a history of alcohol abuse, anger, and 

violence issues which affected her relationship with her children. Therefore, early in the 

divorce proceedings, the family court awarded Andrew P. primary custody of the children 

and granted Jenny P. supervised visitation. Jenny P. was also ordered to undergo a 

psychological evaluation and alcohol assessment, to utilize Soberlink alcohol monitoring,

and to drug screen three times a week. 

On March 11, 2021, the family court appointed a GAL for the couple’s minor 

children. The family court set the hourly billing rate for the children’s GAL at $287.50.4

After Jenny P. arrived at supervised visits visibly intoxicated with slurred speech, the 

children’s GAL requested the family court appoint a GAL for Jenny P., concerned about 

her diminished capacity and inability to act in her own best interest. 

On December 8, 2021, the family court held a hearing where Jenny P. was awarded 

$20,000.00 in lieu of temporary alimony.5 Evidence was adduced regarding Jenny P.’s 

competency based upon her failure to comply with court orders. Counsel for Andrew P.

moved the family court to appoint a GAL for Jenny P. due to her suspected incompetency 

and failure to attend to her affairs. Counsel for Jenny P. objected and argued that Jenny P. 

was competent and wholly capable of attending to her affairs. However, based on the 

evidence adduced, the family court found that Jenny P. lacked the ability to protect her own 

interests, was unable or unwilling to conduct herself appropriately, and the appointment of 

a GAL was necessary.

On December 14, 2021, the family court appointed Ms. Hylton as GAL for Jenny 

P. The order stated, in part,

the [c]ourt has determined the need for a [GAL] to protect the interests of the 

Respondent, [Jenny P.], and investigate substantial questions raised 

concerning the competency of [Jenny P.] to conduct her business affairs and 

to conform her behavior to the standard of conduct required of her by the 

[c]ourt, and should the [GAL] find it appropriate to do so, the [GAL] shall 

act in the best interests of [Jenny P.] in resolving the issues presented in this 

matter. It is accordingly, ORDERED and ADJUDGED that Vickie Hylton, 

an attorney practicing before the bar of this Court shall be appointed as 

[GAL] to do all things necessary to protect the best interest of said 

Respondent, [Jenny P.] 

4 The hourly fee was based upon the assets of Jenny P. and Andrew P. and reduced 

to writing in the family court’s May 24, 2021, order.

5 The parties had substantial marital assets. 
3

At the onset of Ms. Hylton’s appointment, Jenny P. began emailing and calling Ms. 

Hylton frequently. So much so that on numerous occasions, Ms. Hylton instructed Jenny 

P. to only call or email when necessary because Ms. Hylton was billing her for the time 

spent responding to each form of communication. Despite this instruction, Jenny P. 

continued to regularly send Ms. Hylton several emails on a daily and nightly basis, 

including instances where Jenny P. would e-mail Ms. Hylton multiple times within a 

twenty-four-hour period. This conduct continued throughout Ms. Hylton’s appointment. 

On July 22, 2022, the family court held a telephonic hearing during which the family 

court notified Jenny P. that she would need to hire a new attorney because her current 

attorney was suspended from the practice of law.6 Also at the hearing, Ms. Hylton notified 

the family court that although Jenny P. was difficult to deal with and consistently made 

bad decisions, she was not incompetent and was not in need of a GAL; further, Ms. Hylton 

had not seen any report that Jenny P. was incompetent and unable to conduct her own 

affairs. Ms. Hylton informed the court that she had made numerous requests for Jenny P. 

to sign HIPAA releases so that she could gather such medical information in relation to her 

competency but was unsuccessful due to Jenny P.’s defiant behavior. Jenny P. was 

employed, self-supported, and living independently. Thus, Ms. Hylton requested to be 

relieved from her appointment in the case. The children’s GAL objected to Ms. Hylton’s 

withdrawal because a GAL was needed to protect Jenny P.’s best interests due to her 

incapability of making good choices. The family court denied Ms. Hylton’s request to be 

relieved. However, importantly, the following colloquy took place during the July 22, 

2022, hearing: 

FAMILY COURT: I’m sorry, Ms. Hylton, your question about your fees?

HYLTON: I was going to ask that it be set at the same rate as [the children’s 

GAL] unless the court advises otherwise. 

FAMILY COURT: That sounds right to me. 

By order entered July 25, 2022, the family court denied Ms. Hylton’s request to be 

relieved as Jenny P.’s GAL until Jenny P.’s medical, mental health, and psychiatric records 

were received by the court. Jenny P. was ordered to execute and deliver a consent and 

release of medical records to the children’s GAL. The family court’s oral approval of Ms. 

Hylton’s GAL fee at $287.50 per hour was not incorporated into the written order. 

6

Jenny P.’s then attorney was Scott Elswick, who was suspended from practicing 

law by order entered on May 5, 2022, by the Supreme Court of Appeals of West Virginia. 

Jenny P. went through at least three attorneys from December 2020 until the filing of this 

appeal. 
4

On October 28, 2022, Ms. Hylton renewed her request to be relieved from the case, 

which was granted by the family court. Ms. Hylton filed a detailed invoice with the court 

on November 8, 2022. Ms. Hylton billed for 45.4 hours of services from December 14, 

2021, through October 28, 2022. She also billed $15.10 for 151 pages of copies, $2.65 for

the postage of five checks, and $94.08 for 168 miles traveled regarding Jenny P.’s

medication. The final total of Ms. Hylton’s GAL fee was $13,164.33. 

The family court held a final hearing on the divorce petition on February 10, 2023, 

where Jenny P. failed to appear in person. The court telephoned Jenny P., who informed 

the court that she was unable to attend the final hearing due to a leg injury. Notably, the 

court spent seventeen minutes of the hearing arguing with Jenny P. and appeared 

exasperated with her. The family court permitted Jenny P. to attend the hearing 

telephonically. After a ten-minute recess, Jenny P. would not answer the family court’s 

phone calls and apparently chose not to participate any further in the final hearing. 

At the conclusion of the final hearing, the family court inquired whether counsel for 

Andrew P. had seen Ms. Hylton’s detailed invoice regarding her fee.7 Counsel for Andrew 

P. stated that the fees were likely appropriate, especially if Jenny P. phoned and emailed 

“incessantly” to Ms. Hylton demanding immediate responses like she “incessantly”

emailed her first attorney; thus, there were no objections to Ms. Hylton’s invoice or fee. 

On February 21, 2023, the family court entered a memorandum of the court’s final 

rulings and ordered counsel to incorporate the findings into a proposed final divorce order. 

The memorandum reduced Ms. Hylton’s total fee of $13,164.33 to $6,921.83. Specifically, 

the family court found that Ms. Hylton’s billing rate was unreasonably higher than the 

amount expected and ordered her to be paid $150.00 per hour instead of $287.50. However,

the family court adopted the children’s GAL fee of $14,923.88 at $287.50 per hour. 

On March 3, 2023, after receiving the family court’s memorandum, Ms. Hylton filed 

a motion for the family court to reconsider its reduction of her fees. The court held a hearing 

on the motion and on April 25, 2023, the family court entered an order denying Ms. 

Hylton’s motion to reconsider. The family court found that there was no evidence that 

Jenny P. was “incompetent to conduct her own business affairs or these proceedings.” The 

court also found that Ms. Hylton did not differentiate billing between non-lawyer functions 

and lawyer functions, and some of the services rendered should have been completed by a 

paralegal or messenger. 

On April 25, 2023, the family court entered a final divorce order. Jenny P. was 

awarded an equitable distribution of the marital assets in the amount of $179,726.00 and 

7 Ms. Hylton was not present for this hearing, being relieved from her duties as GAL

in October 2022. 
5

Andrew P. was awarded $367,424.00. To equalize distribution, the court awarded Jenny P. 

a cash amount of $91,349.00. The cash amount was used to pay for certain expenses Jenny 

P. incurred during the litigation. Among other things, the cash amount paid the children’s 

GAL fees and Ms. Hylton’s GAL fees. The family court awarded the children’s GAL fee 

of $14,923.88 at $287.50 per hour and Ms. Hylton a fee of $6,921.83 at $150.00 per hour. 

This appeal followed. 

When reviewing the order of a family court, we apply the following standard of 

review:

“In reviewing . . . a final order of a family court judge, we review the findings 

of fact made by the family court judge under the clearly erroneous standard, 

and the application of law to the facts under an abuse of discretion standard. 

We review questions of law de novo.” Syl., [in part,] Carr v. Hancock, 216 

W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022); 

accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review 

of family court orders).

The only issue before this Court concerns the discretion of a family court to alter 

the amount of attorney’s fees submitted for approval by a GAL appointed by the court. On 

appeal, Ms. Hylton asserts several assignments of error, which for purposes of this appeal 

have been consolidated into one issue.8

Ms. Hylton argues that the family court abused its discretion when her previously 

approved fee was unilaterally and comprehensively reduced by the family court. She 

further contends that the family court did not scrutinize any other billing and ordered all 

other attorneys involved in the case to be paid in full due to Jenny P.’s misconduct. In 

support of her argument, Ms. Hylton avers that the family court erroneously reduced her 

fee because she did not hire staff to perform some of her services, which the court said 

were “messenger’s functions” and should have billed at a reduced rate. Further, she 

contends that the family court erred by reducing her fee with no calculation evidencing the 

justification for such reduction. 

8

It appears that all of Ms. Hylton’s assignments of error present a single issue. See 

generally Tudor's Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 

237 (2012) (allowing consolidation of related assignments of error). 
6

“The role of the guardian ad litem is extremely valuable in our judicial system. 

Without a guardian, those who most need justice and protection may be denied it.” Erwin 

v. Henson, 202 W. Va. 137, 142, 502 S.E.2d 712, 717 (1998). To properly perform this 

role, the guardian must advocate vigorously for the client, “but must thoroughly investigate 

the matter before the court, to determine what would be in the client's best interest—often 

without assistance from the client.” See id. (Citing Chris A. Milne, The Child's Tort Case: 

Ethics, Education and Social Responsibility, 30 Suffolk U. L.Rev. 1097 (1997)).

The Supreme Court of Appeals of West Virginia has held that when a guardian ad 

litem is appointed to represent an adult, that guardian is charged with the duty “to provide 

competent representation to . . . [their] client, and to act with reasonable diligence and 

promptness in representing . . . [their] client.” In re Jeffrey R.L, 190 W. Va. 24, 39, 435 

S.E.2d 162, 177 (1993). Here, the record indicates that Ms. Hylton fulfilled her 

responsibilities as Jenny P.’s GAL.

In Judy v. White, 188 W. Va. 633, 425 S.E.2d 588 (1992), an attorney who had been 

appointed to represent a criminal defendant had his fees reduced without any explanation. 

The court in Judy held that an explanation must be provided when a court reduces the fee 

of an attorney appointed by the court. Id. at 639, 425 S.E.2d at 594. The reasoning for the 

requirement was outlined in Erwin, which held that the “explanation will provide the 

attorney a meaningful opportunity to address the specific concerns of the court and present

evidence to support his claim.” Erwin, 202 W. Va. at 143, 502 S.E.2d at 718. 

In Erwin, a GAL was appointed to represent minors in the settlements of personal 

injury and wrongful death claims. The lower court “accepted and signed the proposed order 

which stated that the rate of payment was reasonable, and that the work performed was 

reasonable and necessary.” Id. at 141, 502 S.E.2d at 716. Nonetheless, the court reduced 

the GAL’s fees in half without explanation. Id. The Erwin Court utilized the factors set 

forth in Syllabus Point 4 of Aetna Casualty & Surety Company v. Pitrolo, 176 W. Va. 190, 

342 S.E.2d 156 (1986) for lower courts to consider when an attorney’s fee is not based on 

a fee arrangement between the attorney and his client, which are as follows: 

(1) the time and labor required; (2) the novelty and difficulty of the questions; 

(3) the skill requisite to perform the legal service properly; (4) the preclusion 

of other employment by the attorney due to acceptance of the case; (5) the 

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations 

imposed by the client or the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation, and ability of the attorneys; 

(10) the undesirability of the case; (11) the nature and length of the 

professional relationship with the client; and (12) awards in similar cases.

Aetna Cas. & Sur. Co., 176 W. Va. at 196, 342 S.E.2d at 162. In Erwin, the lower court 

examined the Aetna Casualty factors and found them all to favor the GAL, yet still reduced 
7

the GAL’s fees by half. The Supreme Court of Appeals of West Virginia reversed the lower 

court’s decision and held that when a court “appoints an attorney as a guardian ad litem to 

represent the interests of an infant, in determining the appropriate fee to be paid to the 

guardian ad litem, the trial court shall consider the factors enunciated in Syllabus Point 4 

of Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), except 

for factor number six.” Erwin, 202 W. Va. at 143, 502 S.E.2d at 718. It further stated, 

“when a fee is requested . . . by a guardian ad litem . . . [the] court should have a standard 

to review the request.” Id.

Though we recognize that Erwin and Aetna Casualty did not involve courtappointed GALs in family court proceedings, we find the requirement for courts to have a 

standard when determining a GAL’s fee to be necessary in family courts as well; 

particularly when the court reduces such fee that it had previously approved.

Here, the family court reduced Ms. Hylton’s bill by almost half with insufficient

explanation. There were no objections by the parties to her fee or to her detailed invoice 

statement. The children’s GAL billed at the same hourly rate as Ms. Hylton and the record 

below does not show any inquiry into whether her billed services included “messenger” or 

“paralegal” functions. Nonetheless, the court ordered Jenny P. to pay 100 percent of the 

children’s GAL fee in the amount of $14,923.88 finding that, “the need for a [GAL]

result[ed] from the behaviors and misconduct by the Respondent [Jenny P.]”

9

The record indicates that the family court based its comprehensive fee reduction 

partly on the fact that Jenny P. was never found incompetent to conduct her own business 

affairs or to participate in the proceedings.10 However, the family court appointed Ms. 

Hylton as Jenny P.’s GAL because there were “substantial questions raised concerning the 

competency of [Jenny P.] to conduct her [own] business affairs;” there were also questions 

regarding whether Jenny P. was competent “to conform her behavior to the standard of 

conduct required” by the family court. The family court found that Ms. Hylton billed for 

non-legal activities. Specifically, the court found that 3.2 hours involving Ms. Hylton 

traveling to and from a pharmacy to pick up and drop off Jenny P.’s medication while she 

was in rehab was a “messenger’s function” and Ms. Hylton’s “failure to differentiate 

functions . . . result[ed] in unreasonable and excessive billings.” Nevertheless, the order of 

appointment required Ms. Hylton “to do all things necessary to protect the best interest of 

9 For the same reason, the family court ordered Jenny P. to pay 100 percent of the 

children’s therapy expenses. Additionally, the family court ordered Jenny P. to pay forty 

percent of Andrew P.’s retained attorney fees “due to her misconduct, behavior, and lack 

of diligence.”

10 This finding of the family court does not excuse Ms. Hylton’s performance of her 

duties as GAL or her payment for those services.
8

said Respondent [Jenny P.]” Moreover, we note that Ms. Hylton requested to be relieved

of her GAL appointment in July 2022, but the family court denied her motion, which 

allowed additional services and fees to accrue. 

Here, the family court comprehensively reduced Ms. Hylton’s GAL fees because 

some of her services were considered non-lawyer services, yet the record does not provide 

sufficient detail or clarity regarding the specific line items in the invoice that were reduced. 

Additionally, the family court never required either GAL to differentiate between services 

provided for billing purposes.

11 To give the GAL the opportunity to explain why these 

functions were proper for an attorney to perform and why they were proper to be charged 

at an attorney rate, in evaluating a GAL fee request, and before reducing Ms. Hylton’s 

invoice, the family court must first analyze the Erwin factors and subsequently give notice 

to Ms. Hylton of which services are deemed non-lawyer functions, to reduce the fee for 

those services accordingly. Thus, we find that the family court abused its discretion when 

it comprehensively reduced Ms. Hylton’s GAL fees without first providing supporting 

findings of facts and conclusions of law regarding the specific services warranting a 

reduction of fees. 

Accordingly, we reverse the Family Court of Fayette County’s April 25, 2023, 

orders as it pertains to Ms. Hylton’s fees, and remand the case for further proceedings 

consistent with this decision.

Reversed and Remanded.

ISSUED: March 25, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

11 To prevent confusion in future cases, we encourage family courts to incorporate 

language into their GAL appointment orders to clarify if the court requires a GAL to 

provide certain designations of their services for billing purposes, especially when a case 

involves two court-appointed GALs.