Facts
C. and B. are the divorced parents of D. (born 1999) as well as the twins E. and F. (2000). The divorce proceedings were initiated in May 2004. On July 2, 2008, the District Court of Zurich requested the competent guardianship authority to appoint a representative for the children to represent them in the proceedings. On October 13, 2008, the authority entrusted Lawyer A. with this task. After the final conclusion of the divorce proceedings, the children's representative invoiced her time spent and expenses for the first instance proceedings with CHF 25,936.70 and for the appeal proceedings with CHF 27,004.20, totaling CHF 52,940.90.
The Cantonal Court of Zurich awarded Lawyer A. a total fee of CHF 27,684.90 for the first and second instance proceedings. Since both parties were granted legal aid, the children's representative was compensated from the court's funds.
The children's procedural representative demands before the Federal Supreme Court to be compensated according to the expenses shown in the fee note. The Federal Supreme Court partially upholds the appeal and remands the case to the lower court for a new assessment and determination of the fee.
Considerations
The Federal Supreme Court states that the compensation of the children's representative is generally to be determined according to cantonal law. However, the lower court has not compensated the costs for the children's representation based on the cost note, but has applied a lump-sum tariff. This violates Art. 299 CPC, as the actual time spent must be the basis for the assessment, insofar as it appears reasonable under the circumstances.
The Federal Supreme…