To Defer or Not to Defer
October 20, 2015 § Leave a comment
It sometimes happens that the chancellor chooses not to defer to the findings and recommendations of a guardian ad litem (GAL). When she opts not to defer, how should it be handled in the court’s ruling? That was a question raised in a recent COA case.
Jennifer Lowry and Ryan Simmons were engaged in a child-support dispute in which Ryan claimed that his future college and child-support obligations should be terminated based on his daughter’s refusal to have anything to do with him. Jennifer blamed Ryan for the deterioration of the relationship, and Ryan blamed Jennifer.
The chancellor appointed a GAL to investigate the reasons behind the child’s refusal to visit with her father.
In his report, the GAL found Ryan’s fault greater than the child’s, and recommended modification to reduce Ryan’s college education support obligation conditioned on the child’s participation in counselling to rehabilitate the relationship, and, if the child refused or failed to participate, then complete termination of the obligation.
The chancellor did not follow the recommendation of the GAL, opting instead to terminate the college education obligation completely, based on the child’s lack of effort to reconcile with her father. Jennifer appealed. One of her several grounds for appeal was that the chancellor did not explain his reasons for rejecting the GAL’s recommendations.
In Lowrey v. Simmons, handed down September 29, 2015, the COA found that the chancellor had not erred in how he handled the GAL report. Judge Wilson, for the court, explained:
¶11. Jennifer next argues that the chancellor erred by not following the GAL’s recommendations.1 Jennifer asserts that the chancellor misstated the GAL’s recommendations and erroneously believed that he was following those recommendations. Jennifer further argues that because the chancellor was not following the GAL’s recommendations, he was obligated to explain why he had rejected the them. Jennifer relies on Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007), in support of her argument. In Floyd, the Supreme Court stated, “if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. However, Jennifer fails to note the context of the Court’s statement. The Court wrote:
[A] chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. . . . While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law.
Id. (emphasis added).
¶12. The appointment of a GAL is mandatory where there are allegations of abuse or neglect of a minor or where there is a contested termination of parental rights. See Miss. Code Ann. § 93-5-23 (Supp. 2014); Miss. Code Ann. § 93-15-107(1) (Rev. 2013). Where the appointment of a GAL is discretionary, there is no requirement that the chancellor state his reasons for deviating from the GAL’s recommendations. Porter v. Porter, 23 So. 3d 438, 449 (¶28) (Miss. 2009); Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App. 2007). Moreover, “there is no requirement that the chancellor defer to the findings of the [GAL].” S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000).
¶13. There was no allegation of abuse or neglect in the present case. Nor was this an action to terminate parental rights. Thus, the chancellor was under no obligation to appoint a GAL. Because the chancellor’s appointment of the GAL was discretionary, he was not obligated to detail his reasons for diverting from the GAL’s recommendations. Furthermore, in his order, the chancellor did discuss the recommendations of the GAL. Although the chancellor did not follow the GAL’s recommendations, chancellors are never required to adopt the GAL’s recommendations. Id. (“[T]here is no requirement that the chancellor defer to the findings of the [GAL]. . . . Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).
That does not require any elaboration.
Although she lost on this point, Jennifer prevailed on her argument that the court erred in terminating the college support obligation. That is a subject for another day.
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