guardian ad litem | The Better Chancery Practice Blog

The Flip Side of Restricting the GAL

June 1, 2020 § Leave a comment

Last week we visited the MSSC’s majority decision in Barber v. Barber, which held that it was error for the chancellor to exclude a GAL report from evidence and to limit the GAL’s testimony based on the GAL’s conclusion that allegations of abuse were unfounded.

Today we will look at Justice Ishee’s dissent, joined by Chief Justice Randolph and Justice Griffis. It’s somewhat lengthy by this blog’s standards, but it’s worth a read:

¶42. The statute requires the appointment of a guardian ad litem “when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151 . . . .” Miss. Code § 93-5-23 (Rev. 2018). As the majority acknowledges, more than a mere allegation is required to invoke the statute; the chancellor “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Maj. Op. ¶ 27 (internal quotation marks omitted) (quoting Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016)). “The statute should not be read ‘as requiring . . . the appointment of a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties.’” Carter, 204 So. 3d at 759 (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004)).

¶43. The majority sidesteps the question of whether there was a sufficient factual basis to trigger the statute. It appears instead to be satisfied with its supposition that “at the time of the appointment, the chancellor considered the requirements for a mandatory appointment to be met.” See Maj. Op. ¶ 34 n.6. From my own review of the record, I disagree; it appears that the chancellor appointed the guardian ad litem out of an abundance of caution, not because he had found that doing so was statutorily required. But regardless of the chancellor’s subjective intent, the appointment was not statutorily required because the allegation the children were abused was never substantiated. See Carter, 204 So. 3d at 759.

¶44. Sylvia leveled a cursory allegation of abuse after the chancellor awarded temporary custody to Mark—Sylvia alleged just that “Mark is guilty of conduct constituting abuse towards the minor children, inclusive of physical, verbal and emotional abuse.” The chancellor appointed a guardian ad litem to look into Sylvia’s allegation. The guardian ad litem was instructed to report back to the court whether appointment of a guardian ad litem was mandatory, but she was also to “report to this [c]ourt if there is even a shred of thought that there might be any danger to the child[ren].” The guardian ad litem reported back with no details about the allegations, just her conclusion that the allegations were “unsubstantiated at this time”—unsubstantiated is, again, a word this Court and the Court of Appeals have used to describe allegations that do not require the appointment of guardian ad litem. See Carter, 204 So. 3d at 759. Nonetheless, the guardian ad litem went on to recommend that the allegations “[rose] to the level that the [guardian ad litem] should be appointed as a permanent [guardian ad litem].” The chancellor then entered an order finding that the appointment of a guardian ad litem was “necessary and warranted.” The order instructed the guardian ad litem to “conduct an investigation” and to “make a recommendation,” but it did not say the appointment was mandatory under the statute. In fact, the chancellor’s order indefinitely appointing the guardian ad litem said nothing at all about the allegations of abuse.

¶45. Later, after the chancellor heard the details, he changed his mind about the need to hear the guardian ad litem’s report or recommendation. The chancellor found unequivocally that the appointment had been discretionary and that the allegation Mark had abused the children was not credible. He held,

[T]his Court is the ultimate arbiter of whether or not there is credible evidence of abuse or neglect that would trigger this Court appointing [a] guardian ad
litem.

And there is absolutely no doubt in this Court’s mind that after hearing the testimony, if this Court were to be asked to appoint a guardian ad litem based
upon the credible evidence, this Court would not appoint a guardian ad litem in this matter.

This matter is chock full of bad parenting, bad judgment, general knucklehead behavior and immaturity, which makes it consistent with about 90 percent of the cases that come to this Court.

As such, as the ultimate foundation upon which the guardian ad litem was appointed, and that is potential abuse, neglect of the minor child, in this Court’s view, not being credible or substantiated in any way, the Court would indeed grant the motion to exclude the guardian ad litem report, as well as this
Court would exclude the testimony of the guardian ad litem herein.

The chancellor reached this conclusion after hearing three days of testimony and conducting in camera interviews with the two oldest children.

¶46. In changing the guardian ad litem’s assignment to suit the needs of the case as it unfolded, the chancellor acted according to this Court’s prior direction—the chancellor’s order appointing a guardian ad litem “should not permanently bind the court should needs change as the litigation progresses.” S.G. v. D.C., 13 So. 3d 269, 281 (Miss. 2009). A chancellor has the authority to expand or limit the role of a guardian ad litem “as the needs of a particular case dictate . . . .” S.G., 13 So. 3d 281. “The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice” and her “role at trial may vary depending on the needs of the particular case.” Id. at 280-81. The majority notes these holdings but fails to give them effect. See Maj. Op. at ¶¶ 24-25.

¶47. I submit that reversible error cannot be found without a showing that the allegation of abuse was sufficiently substantiated and credible to make the appointment of a guardian ad litem mandatory under the statute. See Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759. No such showing has been made.

¶48. The Court of Appeals addressed a very similar scenario in the recent Kaiser v. Kaiser, 281 So. 3d 1136 (Miss. Ct. App. 2019). There, a chancellor appointed a guardian ad litem to investigate allegations the children had been endangered when the mother exposed them to her abusive boyfriend. Id. at 1140. The guardian ad litem was subsequently released without giving a final report or recommendation to the chancellor, after it became clear that the children had not been abused or neglected. Id. at 1141-42. The Court of Appeals found no error because the appointment had been discretionary:

Because allegations of abuse mandating the appointment of a GAL were not present in this case, the chancellor’s appointment of the GAL was discretionary and not statutorily mandated pursuant to section 93-5-23. When an appointment of a GAL is discretionary, the chancellor is not required to include his or her reasons for rejecting the GAL’s recommendation. Id. at 1142 (citing Porter, 23 So. 3d at 449).

¶49. Here, before trial, the allegation that the children were abused was bare and “unsubstantiated,” as the guardian ad litem found. It is not mandatory to appoint a guardian ad litem “based merely on an unsubstantiated assertion found in the pleadings of one of the parties.” Carter, 204 So. 3d at 759 (emphasis added) (internal quotation mark omitted) (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004). At trial, the most severe allegations leveled against Mark were that he had struck one of the boys on the top of the head with the handle of a kitchen knife (to get his attention) and had pushed his stepson (the oldest, about fourteen years of age) into a nest of yellow jackets. The appointment of a guardian ad litem is only mandatory when “the allegations of abuse and/or neglect rise to the level of a ‘charge of abuse and/or neglect’” under the Youth Court Law. Carter, 204 So. 3d at 759 (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). The chancellor had substantial evidence to support his ultimate finding that the credible allegations amounted to little more than “bad parenting, bad judgment, [and] general knucklehead behavior and immaturity.”

¶50. Applying Carter and Porter and Kaiser, I would find that the appointment of the guardian ad litem here was discretionary, not mandatory under the statute, and that no error resulted from the chancellor’s decision not to hear the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449; Kaiser, 281 So. 3d at 1142.

¶51. Finally, I would point out that this issue should be procedurally barred for two reasons. First, even though Sylvia admitted at trial that the allegation of abuse had to be sufficiently credible for the appointment of a guardian ad litem to have been mandatory, on appeal she entirely neglected to brief the question of whether her allegation of abuse was substantiated. See Carter, 204 So. 3d at 759. Like the majority, Sylvia just assumes the question was finally decided by the appointment of a guardian ad litem following allegations of abuse. I do not agree and would hold that reversible error cannot be found without a showing that the appointment really was required by the statute. See Porter, 23 So. 3d at 449. Since Sylvia failed to brief that question entirely, she has waived the issue on appeal. See Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (Miss. 2018) (“The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.” (internal quotation marks omitted) (quoting Jefferson v. State, 138 So. 3d 263, 265 (Miss. Ct. App. 2014))).

¶52. Sylvia also failed to proffer the guardian ad litem’s report or testimony. A party complaining of the exclusion of evidence is required to proffer that evidence. Gordon v. Wall (In re Estate of Waller), 273 So. 3d 717, 720 (Miss. 2019). This is so the trial court will have an opportunity to correct its mistake (if there was one) and so a reviewing court can judge whether the error was sufficiently important to require reversal. See id. Reversible error could only result here if the chancellor’s decision was contrary to the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449. Silvia elected not to make the guardian ad litem’s report and recommendation part of the record, so this Court can only speculate about whether its exclusion from evidence was reversible error.

¶53. The statute does not require the appointment of a guardian ad litem in response to a bare, unsubstantiated allegation of abuse. Carter, 204 So. 3d at 759. The appointment of a guardian ad litem here was therefore discretionary, so there was no error in the chancellor’s decision not to receive a report or recommendation from the guardian ad litem. Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759; Kaiser, 281 So. 3d at 1142. The issue is also procedurally barred because Sylvia failed to fully brief it and failed to proffer the guardian ad litem’s recommendation. I would affirm the chancery court’s judgment.

My thoughts:

I am persuaded by Justice Ishee’s reasoning. I think the chancellor intended this to be a discretionary appointment, and he changed the GAL’s role as the S.G. case had actually encouraged. Most significantly he did so only after three days of testimony and interviews with the children.
You can avoid a similar problem simply by asking your chancellor to include in the order appointing the GAL a finding whether it is discretionary or mandatory. Or, if you prepare the order, make sure you specify whether it is discretionary or mandatory.
This case highlights the importance of including more than mere allegations in your pleading if you are serious about charging abuse or neglect. You’ve got to give the judge facts that would be sufficient to support a case in Youth Court.
You should read ¶52 carefully, then copy it, print a few copies, and tape it to your computer screen, bathroom mirror, and your forehead; the concept is that important. If the judge excludes your evidence, you must make an offer of proof, aka proffer, or you may not bring it up on appeal. It’s enshrined in MRE 103(a). I’ve posted about this numerous times. When you try a case, you must be mindful that only part of your job is to persuade the chancellor; you also are making a record to win on appeal.

Limitations on Restricting the GAL

May 27, 2020 § Leave a comment

In divorce litigation between Sylvia and Mark Barber, the chancellor appointed a GAL to investigate Sylvia’s allegations that Mark had abused their children. After the GAL found the claims to be unsubstantiated, the chancellor granted Mark’s motion to limit the testimony of the GAL and to exclude the report from evidence. After the case was concluded, Sylvia appealed on several grounds, among them that the chancellor erred in excluding the GAL report and limiting the GAL’s testimony.

In Barber v. Barber, decided January 30, 2020, the MSSC reversed. Justice Kitchens wrote for the 6-3 majority:

¶23. Sylvia Barber argues that our courts require a court-appointed guardian ad litem either to testify at trial subject to cross-examination or to submit a written report and, if requested, to make recommendations. Because Culpepper was not allowed to testify or submit her report, she contends that the chancellor’s decision was clear error. [Fn 4]

[Fn 4] According to Sylvia Barber, “[a]lthough the [guardian ad litem] fulfilled all obligations, she was not allowed to testify, her report was completely stricken; and the Court strangely refused to receive any of her recommendations.”

¶24. This Court has recognized that “[t]he role to be played by a guardian ad litem is complex and not subject to a simple, universal definition.” S.G. v. D.C., 13 So. 3d 269, 280 (Miss. 2009). The Court clarified function of the guardian ad litem in S.G.:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of
the court—to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Id. at 280-81.

¶25. Thus, chancellors may assign duties to a guardian ad litem upon appointment. This Court “encourage[s] chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings.” Id. at 281. This charge to

[s]et[] out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation[s] by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, [but] the role of the guardian ad litem should at all times be clear.

Id.

¶26. This Court has held that “the guardian ad litem should never serve as a substitute for the court. The court is not bound by the guardian ad litem’s recommendation . . . .” Id. at 282 (footnote omitted). To be sure, guardians ad litem serve important roles as “appointed . . . investigator[s] for, or advisor[s] to, the court,” and, as authorized, “the guardian ad litem, should recommend a course of action to the court . . . .” Id. at 282. This Court has emphasized that “the trial court, and not the guardian ad litem, is the ultimate finder of fact.” Id. at 283. Further, this Court will not impose a strict rule in circumstances in which chancellors are authorized to exercise their discretion “as the needs of a particular case dictate . . . .” Id. at 281; see also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000)(“Although this Court has required a guardian ad litem to perform tasks competently, there is no requirement that the chancellor defer to the findings of the guardian ad litem, as is proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).

¶27. When charges of child abuse or neglect arise, Mississippi Code Section 93-5-23 mandates the appointment of a guardian ad litem. The statute provides that a court “shall appoint a guardian ad litem if charges of child abuse or neglect are raised in a child custody action. Miss. Code Ann. § 93-5-23 (Rev. 2018) (emphasis added). [Fn 5] Under this statute, a judge is required to “investigate, hear and make a determination” regarding allegations of abuse. Id. And the court “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016) (citing Miss. Code Ann. § 93-5-23 (Rev. 2013)). Upon appointment, a guardian ad litem is obligated “to protect the interest[s] of the child[ren] for whom he has been appointed” and is authorized to “investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest.” Miss. Code Ann. § 43-21-121(3) (Supp. 2019). When appointed in accordance with Section 93-5-23, the guardian ad litem must be an attorney. Miss. Code Ann. § 93-5-23.

[Fn 5] The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.

Miss. Code Ann. § 93-5-23.

¶28. Sylvia Barber argues on appeal that the chancellor was bound by this Court’s decision in McDonald v. McDonald and that, in a mandatory appointment, the [guardian ad litem] must either submit a written report or testify and must make recommendations to the court if requested. McDonald v. McDonald, 39 So. 3d 868, 883 (Miss. 2010). Indeed, this Court has relied on McDonald to hold that “[w]hen a chancellor chooses to hear the abuse allegation during a custody hearing, appointment of a [guardian ad litem] is mandatory. As part of his or her duties, the [guardian ad litem] must either submit a written report or testify, and must make recommendations to the court if requested.” Smith v. Smith, 206 So. 3d 502, 510 (Miss. 2016) (footnote omitted) (citing McDonald, 39 So. 3d at 883). Because, as discussed below, we find that the appointment of the guardian ad litem in this case was mandatory, the guardian was required to submit a written report or testify, and, if requested, to make recommendations to the court.

¶29. Before further discussion, we emphasize the serious and vital nature of guardians ad litem in safeguarding the welfare of children whose lives are impacted irrevocably by the decisions of our judicial system. The literal translation of the term guardian ad litem is guardian for the suit. Ad litem, Black’s Law Dictionary (7th ed. 1999). Section 93-5-23 and this Court’s decisions applying it make clear that the legislature and the judiciary have recognized the specific need for an officer of the court with the dedicated role of protecting the interests of children who are the subject of child abuse or neglect allegations. The appointment of a guardian ad litem is not a mere perfunctory hoop through which the court must go to resolve a child custody case. Rather, the role of the guardian ad litem is a meaningful one; it has been enshrined in the law and public policy of this state for the very reason that the guardian ad litem is the only participant in a child custody proceeding whose sole interest is identifying and protecting the rights of the children and reporting its findings to the court. Therefore, a chancellor’s failure to consider a mandatorily appointed guardian ad litem’s findings is an error of the utmost seriousness.

The court reversed and remanded. Justice Ishee dissented, joined by Randolph and Griffis. We’ll look at that next week.

Allocating GAL Fees

January 6, 2020 § 1 Comment

April Garner, aka Garcia, lost custody of her son, Andrew, to her uncle, David Smith. A GAL had been appointed to investigate and report on the best interest of the child. Around a year after the GAL’s appointment, April made some unfounded allegations of sexual misconduct that caused the court-appointed GAL to do additional work. The chancellor assessed all of the GAL’s fees and expenses totalling more than $25,000 against April, and she appealed.

In Garner (aka Garcia) v. Garner, Fox, and Smith, decided October 3, 2019, the MSSC reversed. Justice Griffis wrote the 5-4 opinion:

¶105. The chancellor assessed the GAL costs as follows:

All costs of the [GAL] are . . . assessed to [April]. To the extent that these fees have been paid by [David], he shall be entitled to a monetary judgment for that amount of those fees. That any unpaid fees shall be paid by [April], as well.

That a copy of the [GAL] fees . . . was introduced at trial . . . and showed that [David] paid a total of $22,127.30. That at the time of the trial, there was an outstanding balance of $3,158.34 and the [GAL] has incurred an additional $900.00 since that date which still remains unpaid. Therefore, the [c]ourt awards a monetary judgment in the amount of $22,127.30 against April . . . in favor of David . . . for his payment of the [GAL] fees prior to trial and the [c]ourt awards a monetary judgment in the amount of $4,058.34 against April in favor of the [GAL].

April argues the chancellor’s assessment of “all” GAL fees was improper. We agree.

¶106. “In all cases in which a [GAL] is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such [GAL] for his service rendered in such cause, to be taxed as a part of the cost in such action.” Miss. R. Civ. P. 17(d). Under Section 93-5-23, GAL fees are treated as court costs to be awarded against the nonprevailing party. Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821 (Miss. 2000) (citing Miss. Code Ann. § 93-5-23). “‘Chancery courts have large discretion in apportioning costs.’” McCraw v. Buchanan, 10 So. 3d 979, 985 (Miss. Ct. App. 2009) (quoting Ashburn v. Ashburn, 970 So. 2d 204, 217 (Miss. Ct. App. 2007)). “‘Nevertheless, the exercise of such discretion is not final . . . , and if it appears that the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.’” Id. (quoting Ashburn, 970 So. 2d at 217).

¶107. The chancellor found that “[b]ased on the allegations made by the parties . . . , the appointment of a [GAL] [wa]s required.” The chancellor appointed the GAL “to investigate and ascertain the facts, and make reports and recommendations to th[e] [c]ourt as to what is
in the best interest of the minor child.” The chancellor noted that “the [p]arties may be equally responsible for payment of the attorney’s fees incurred by the [GAL] in investigating this case.” The chancellor ordered David to pay $1500 to the GAL as a retainer for his services, “plus any travel costs or other expenses that may be incurred by the [GAL], including the costs of obtaining records from third parties, in regard to this investigation.”

¶108. Notably, the GAL was appointed on September 29, 2016, approximately one year before the sexual-abuse allegations were made. Thus, although the GAL’s appointment included an investigation of the sexual-abuse allegations, his appointment was not limited to those allegations.

¶109. In Tidmore v. Tidmore, 114 So. 3d 753, 758 (Miss. Ct. App. 2013), the chancellor found the abuse allegations made by the mother were without foundation and therefore assessed attorneys’ fees against her. On appeal, the Mississippi Court of Appeals found that while the father was entitled to an award of attorneys’ fees, it was unclear whether the total amount of fees awarded was for the defense against the abuse allegations. Id. at 759. The court explained that it appeared that at least some of the fees awarded were for the modification-of-child-custody proceedings. Id. As a result, the court reversed and remanded in order for the chancellor to determine the amount of attorneys’ fees that should be awarded to the father for the defense against the baseless abuse allegations. Id.

¶110. Here, the chancellor assessed all GAL costs against April without any determination as to what portion of those costs were spent investigating the unsubstantiated sexual-abuse allegations. Like the father in Tidmore, David is entitled to those GAL costs incurred as a
result of the unsubstantiated abuse allegations. Id. However, the record is unclear what portion of the total amount of costs awarded was actually incurred by the GAL in investigating those allegations. See Miss. Code Ann. § 93-5-23 (“If after investigation . . . allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.” (emphasis added)). Accordingly, the chancellor’s assessment of GAL costs is reversed and remanded in order for the chancellor to determine the amount of GAL costs incurred as a result of the unsubstantiated sexual abuse allegations.

Do your client and the judge a favor and develop that proof at trial.

No GAL = No Error

April 10, 2019 § Leave a comment

After Amber Brown was personally served with a summons for a contempt proceeding, she failed to appear and was found in contempt and ordered to pay her ex-husband, Hewlett, $5,000 in attorney’s fees. She appealed.

One of her manifold issues was that the judge erred in not granting a continuance to allow for appointment of a GAL.

In Brown v. Hewlett, decided March 12, 2019, the COA affirmed. Here is Judge Jack Wilson’s opinion on the point:

¶29. First, Brown asserts that the chancery court should have granted a continuance and appointed a GAL to investigate “allegations of abuse and/or neglect.” However, Brown never asked the court to appoint a GAL. Therefore, any claim that the court should have exercised its discretion to appoint a GAL is procedurally barred. See, e.g., McDonald v. McDonald, 39 So. 3d 868, 885 (¶54) (Miss. 2010) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).

¶30. Nor was the appointment of a GAL mandatory in this case. If there is a legitimate charge of abuse or neglect in a custody proceeding, then the chancery court must appoint a GAL, “whether the parties requested a [GAL] or not.” Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016) (citing Miss. Code Ann. §93-5-23 (Rev. 2018)); see also Miss. Code Ann. § 93-11-65 (Rev. 2018)). However, the appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. Carter, 204 So. 3d at 759 (¶51). The chancery court has “discretion” to determine whether such an allegation is “legitimate.” Id. at (¶53). If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory. Id. In this case, Brown fails to cite to any concrete allegation of abuse, let alone any evidence to support such a claim. Even at the final hearing before the chancery court, Brown merely testified that Lily had seen a counselor for unspecified reasons. On this record, the chancery court did not abuse its discretion by not appointing a GAL sua sponte in this contempt proceeding. [Fn omitted]

Simply because you insert the magic phrase “abuse and neglect” into your pleading, you have not created a duty for the chancellor to appoint a GAL in your case. As the opinion demonstrates, there must be a sufficient factual basis to support the allegation — sufficient to convince the judge that there are facts worth investigating that bear on the best interest of the child. Remember, you must call the request to the attention of the court, and that is done via motion. Under R 43(e), you can use an affidavit of your client or someone with eye-witness knowledge to support the motion.

Guardian ad Litem Hearsay

August 2, 2017 § 2 Comments

Too many lawyers in contested custody cases with a GAL relax when the GAL report is in their favor, choosing to put all (or most) of their eggs in the basket of the GAL report, and then resting. A recent case shows how and why that can be a big mistake.

In Ballard v. Ballard, decided May 25, 2017, the MSSC reversed the chancellor’s award of Candice Ballard’s children’s custody to their paternal grandparents, based on a finding that both she and the natural father were unfit. Justice Coleman’s opinion spells it out:

¶15. Candice takes issue with the chancellor’s disposition of custody due to the chancellor’s reliance upon hearsay. Specifically, Candice argues the chancery court relied upon the guardian ad litem’s reports–which consisted mostly of hearsay–and the guardian ad litem’s testimony–which was based in hearsay–as substantive evidence to establish her unfitness and trigger the family-violence presumption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem’s report, we agree.

¶16. First, the Court notes the chancery court’s failure to provide an Albright analysis. Parents enjoy–against third parties–a natural-parent presumption favoring an award of custody. In re Waites, 152 So. 3d 306, 311 (¶ 14) (Miss. 2014). Only a clear showing of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness can rebut the presumption. Id. at 311-12 (¶ 15). However, the inquiry does not end once the presumption is rebutted. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶ 24) (Miss. 2009). “If the court finds one of [the] factors [that rebuts the natural parent presumption] has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors. Id. (emphasis added). In other words, a finding that the natural-parent presumption has been rebutted does not end the inquiry into custody without an Albright analysis. If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children. We note that, even if, upon
remand, the chancellor finds enough competent evidence to engage the family-violence presumption, the presumption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013).

¶17. In any event, the chancery court erred in finding Candice to be unfit and applying the family-violence presumption. Candice argues the only “proof” presented at trial to establish her unfitness was inadmissible hearsay from the guardian ad litem. Similarly, Candice argues the chancery court relied on inadmissible hearsay to apply the family-violence presumption against her.

¶18. Candice is correct that the chancery court relied heavily on hearsay testimony in determining that she was unfit and that the family-violence presumption should be triggered. The chancery court’s analysis determining Candice’s unfitness focused primarily on the guardian ad litem’s report and testimony and on Candice’s evasive answers to questions at trial that indicated a “wariness to convey the truth.” The chancery court concluded: “Based on the evidence as stated above, i[.]e., [Candice] failing to take responsibility for her actions or lack thereof, and continuing to blame others for her mistakes, the [chancery c]ourt finds by clear and convincing evidence that her natural parent presumption has been rebutted due to her unfitness.” [Fn omitted] Additionally, in our review of the record, we could discern only one piece of nonhearsay testimony that indicated Candice had committed any act of family violence: when Marshall testified that Candice had beaten him with a lamp. Other evidence suggesting Candice had inflicted violence on Marshall came almost entirely from the guardian ad litem’s reports and the guardian ad litem’s testimony at trial, all of which consisted of the guardian ad litem’s third-party interviews. None of the persons interviewed by the guardian ad litem testified at trial except the parties and one of Candice’s daughters from a previous relationship. Despite a recommendation from the guardian ad litem in her supplemental report that the chancery court should not apply the family-violence presumption, the chancellor relied on the hearsay contained within her report to disagree with her recommendation and apply it. [Emphasis in bold supplied by me]

¶19. In McDonald v. McDonald, 39 So. 3d 868, 882 (¶ 47) (Miss. 2010), the Court addressed “whether the guardian ad litem acted beyond her authority by offering hearsay testimony without being qualified as an expert.” The appellant in McDonald argued the chancery court erred in allowing a guardian ad litem to testify as to statements relayed to the guardian ad litem by teachers at a school. Id. at 884 (¶ 53). The McDonald Court set forth the “proper role” of a guardian ad litem as follows:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the
information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation.

Recommendations of a guardian ad litem must never substitute for the duty of a chancellor. Id. at 883 (¶ 48) (citing S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009)). During trial of the case, the chancellor had overruled the objection to hearsay, claiming courts in Mississippi have a “historical practice” of allowing guardians ad litem to offer hearsay testimony. Id. The majority opinion in McDonald disagreed with the chancellor’s view, holding, “We find that it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding.” Id. Considering the above-quoted language defining the importance and role of the guardian ad litem along with the admonition issued by the McDonald Court regarding reliance on hearsay, we conclude the following: The guardian ad litem plays an important role, and – as set forth above – chancellors must consider all of the information available to the guardian ad litem when considering whether to follow the
recommendation made. However, especially when a chancellor departs from the recommendation of the guardian ad litem, as happened here, the result reached by the chancellor must be supported by admissible, competent evidence rather than hearsay.

¶20. Presiding Justice Dickinson issued a specially concurring opinion in McDonald tailored to the issue of guardian ad litem testimony and hearsay. Id. at 887 (¶ 65) (Dickinson, P.J., specially concurring). His concurrence was joined by four other justices, giving the opinion precedential value. See Sweatt v. Murphy, 733 So. 2d 207, 209-210 (¶ 7) (Miss. 1999) (noting that when at least four justices vote in favor of another justice’s concurring opinion, the concurrence has “precedential value”). Addressing guardian ad litem hearsay, Presiding Justice Dickinson wrote, “Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court—and they include no exception for guardians ad litem.” Id. The concurrence continued: “Certainly I agree that guardians ad litem–properly appointed under Rule 706 and qualified as experts under Rule 703–may rely on hearsay in reaching their opinions. But hearsay used to support an expert’s opinion is quite different from hearsay admitted as substantive evidence.” Id. (¶ 68). In other words, “pure, rank, uncross-examined hearsay” by a guardian ad litem cannot be used as substantive evidence. Id. (¶ 68).

¶21. A dearth of Mississippi jurisprudence squarely addresses the issue of guardian ad litem hearsay being used as substantive evidence. However, as Presiding Justice Dickinson proclaimed in McDonald, our rules of evidence apply in chancery court; and the rules prohibit, subject to listed exceptions, the use of hearsay as substantive evidence. In view of the rule, the chancery court erred in relying on inadmissible hearsay to find Candice unfit and to invoke the family-violence presumption against Candice. Therefore, we reverse the chancery court’s disposition on custody of the three minor children and remand for further proceedings.

This case is a strong reminder that you must put non-hearsay evidence in the record that will support the chancellor’s findings. If the GAL reported statements by a schoolteacher about the child’s conduct, call the teacher as a witness. If the GAL referred to medical records, get the records with any interpretive testimony in the record. If neighbors witnessed something, put them on the stand to testify about it. That’s what the court was alluding to in the language I put in bold print above: It’s up to you to call the witnesses, to get the documents into evidence, and to do what is necessary to give the judge substantial evidence to support findings.

Remember that the GAL report has two major components: (1) a recitation of what the GAL learned from her investigation, which often includes hearsay; and (2) the GAL’s recommendations. It’s up to you to get the facts unearthed in the investigation into the record in the form of admissible evidence. If all the judge has is that GAL report, then that is all she will be able to say she relies on in making her ruling, and that is a recipe for reversal.

If you are on the side contrary to the GAL’s recommendations, remember that there must be a contemporaneous objection to the testimony. You are extremely unlikely to prevail if you complain for the first time on appeal that the GAL report was rife with hearsay and other objectionable evidence.

A previous post on Coming to Grips with McDonald is here.

When Spanking Becomes More

June 7, 2017 § Leave a comment

In the course of the divorce trial between Bridget and Scott Holman, Bridget was testifying about Scott’s treatment of one of their children:

“I mean it wasn’t just a spanking on the butt. We’re talking about up and down the back, red marks, and had I been smart enough, I would have taken a picture of that.”

The chancellor, construing her testimony to be an allegation of child abuse, stopped the trial and appointed a guardian ad litem (GAL). After an investigation, the GAL found that the allegations were without foundation. The chancellor ordered Bridget to pay Scott’s attorney’s fees related to the child-abuse allegation.

Bridget appealed, contending among other claims that the chancellor erred in deciding to appoint a GAL, and in his award of attorney’s fees. The COA affirmed as to the appointment of the GAL, but reversed and remanded for a recalculation of the fees awarded. The unanimous decision in Holman v. Holman, handed down April 4, 2017, was penned by Judge Griffis:

¶23. Bridget claims she did not make an abuse allegation “but merely talked about Scott’s bad parenting” and “an incident of excessive spanking.” Pursuant to Mississippi Code Annotated section 43-21-105(m) (Rev. 2016), “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.”

¶24. Bridget asks that we find the chancellor erred in construing Bridget’s allegation of excessive spanking and her testimony that Scott spanked the child up and down his back, leaving red marks, as an allegation of child abuse. We disagree. Based on Bridget’s testimony, it was not manifestly wrong or clearly erroneous for the chancellor to have concerns since, under Mississippi Code Annotated section 43-21-105(m) (Rev. 2015), spanking must be reasonable.

¶25. Moreover, neither Bridget nor her former trial counsel objected to the chancellor’s interpretation of Bridget’s testimony, or attempted to clarify Bridget’s statements. Bridget had the opportunity to advise the chancellor at that time what she now asserts to this Court on appeal—that she did not intend to allege child abuse, but was simply discussing Scott’s bad parenting.

On the issue of attorney’s fees, Judge Griffis wrote:

¶26. Bridget next argues “the chancellor had no legal authority to award attorney’s fees.” Bridget further argues that even if it was proper for the chancellor to award Scott attorney’s fees, the attorney’s fees should have been limited to those fees actually incurred in defending the abuse allegation.

¶27. “An award of attorney’s fees will not be disturbed unless the chancellor abused his discretion or committed manifest error.” Stuart v. Stuart, 956 So. 2d 295, 299 (¶20) (Miss. Ct. App. 2006). Attorney’s fees may be properly awarded “where one party’s actions have caused the opposing party to incur additional legal fees.” Id.

¶28. The chancellor ordered Scott’s counsel to present an accounting of attorney’s fees incurred in the defense of the abuse allegation. However, Scott’s counsel submitted an affidavit and an attached itemization, which included charges for all work performed since June 2015, when the allegation of abuse was made by Bridget.

¶29. The chancellor awarded Scott $15,135 in attorney’s fees, which represented all work performed by Scott’s counsel since the child-abuse allegation was made. The chancellor explained his decision as follows:

This matter was tried almost to its conclusion as [Scott’s counsel] correctly stated, in day one, and then a revelation by [Bridget] comes about alleging abuse by [Scott]. The [chancery court], pursuant to the appropriate statute, halted the proceedings and appointed a guardian ad litem. In doing so, that not only increased the attorney[’s] fees for both parties, but also, of course, incurred the fees of the guardian ad litem. We tried the matter then on yet another day, again to its conclusion . . . . I think in all fairness and in all equity, because of the additional attorney[’s] fees incurred because of the revelation from the stand and not anywhere prior . . . in any deposition, discovery, or otherwise, it’s only proper that the party who causes another party to incur those fees should be assessed.

¶30. As the chancellor noted, at no point prior to the June 2015 trial had Bridget alleged child abuse. Indeed, the abuse allegation was made for the first time after approximately two and one-half years of litigation. Such an allegation caused additional delay and costs. Thus, we do not find the chancellor abused his discretion or committed manifest error in awarding attorney’s fees.

¶31. However, we do find the chancellor erred in failing to determine what portion of the submitted fees was actually incurred by Scott in responding to the abuse allegation. “The fees ‘should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’” Martin v. Stevenson, 139 So. 3d 740, 752 (¶40) (Miss. Ct. App. 2014) (citing Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)). Accordingly, we reverse and remand in order for the chancellor to determine the amount of attorney’s fees associated with Scott’s defense of the abuse allegation.

It seems sometimes that witnesses get carried away hearing their own voices on the witness stand, not really paying much attention to the import of what they are saying until they get hit in the face with it. It’s beyond question that the chancellor in this case was under a duty to stop the proceedings and appoint a GAL based on what Bridget said. Red marks up and down the back from a spanking are not reasonable.

As for the amount of attorney’s fees awarded, I am willing to bet that the chancellor had no proof in the record to support a finding as to how to allocate the attorney’s fees incurred in resisting the child-abuse claim.

When the GAL Goes Beyond the Court’s Mandate

February 6, 2017 § 2 Comments

What is the court’s duty to address a GAL’s recommendations on matters not included in the court’s order appointing the GAL?

Angela Davis and her ex-husband, Gary Davis, shared joint legal and physical custody per an irreconcilable differences divorce judgment entered in 2004. In 2013, following an altercation between Gary’s then wife and one of the children, Angela sued him for termination of parental rights (TPR), or for modification of custody, and for an upward modification in child support. Gary counterclaimed for contempt and for modification to give him sole custody.

The chancellor appointed a GAL to make recommendations with respect to the TPR issue. The GAL recommended that Gary’s parental rights not be terminated, and went on to recommend that Angela have “primary custody,” with Gary having visitation, “because that is how they have been operating since the date of the divorce.”

The chancellor denied Angela’s prayers for TPR, for modification of custody and visitation, and for an increase in child support. He did order Gary to pay the children’s private school tuition. Angela appealed, and one of the issues she raised was that the chancellor’s ruling failed to address why he did not follow the GAL’s recommendation as to custody and visitation.

The COA affirmed in Davis v. Davis, handed down January 24, 2017. Here’s how Judge Lee wrote for the unanimous court (Westbrooks not participating):

¶19. In her third issue, Angela claims the chancery court should have followed the GAL’s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the GAL’s recommendations were not followed.

¶20. “Our supreme court does not require a chancellor to follow the findings of a GAL.” In re N.B., 135 So. 3d 220, 228 (¶35) (Miss. Ct. App. 2014) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000)). “However, ‘when a chancellor’s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL’s recommendation shall be stated by the court in the findings of fact and conclusions of law.’” Id. (quoting S.N.C., at 755 So. 2d 1082 (¶18)).

¶21. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary’s parental rights not be terminated, and the chancery court followed the GAL’s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, we cannot find the chancellor erred in failing to state his reasons for not adopting the GAL’s recommendations regarding custody and visitation.

Some thoughts:

Make sure your GAL order is specific and clear as to which issues the GAL is required to serve. Angela’s appeal might have won the day had the GAL order been vague or general (e.g., ” … to make recommendations as to the best interest of the children …” ).
I’m not sure whether this issue has been squarely before the appellate courts before, but to me it’s definitely a new wrinkle in GAL jurisprudence.
Once again the term “primary custody” pops up in a case. In 2009, the MSSC ruled that the term “primary custody” and its permutations like “primary physical” and “primary legal” and “primary physical and legal” custody have no legal meaning in our law. You might recall that I posted here about it ‘way back in 2010. It’s not that big a deal in most cases, but, as I pointed out in that previous post, it can work some serious mischief in custody agreements and judgments. In my opinion, it’s better simply to purge the term entirely from your legal vocabulary than to use it heedlessly and have it ricochet fatally against a client or former client in later proceedings. In a recent custody case I heard, counsel for both parties used the term repeatedly. It was like fingernails on a blackboard to me.

Assessment of the GAL Fee

December 6, 2016 § Leave a comment

Who should be responsible to pay the cost of the guardian ad litem (GAL)?

That was one of the questions in the case of Darby v. Combs, handed down by the COA on October 25, 2016.

Monica Darby, paternal grandmother of Addie, filed for custody of the child, alleging that the child’s parents, Drew and Crystal, were unfit. A GAL investigated and concurred that Crystal had neglected the child. Crystal’s parents, Harold and Karron Combs, intervened, seeking custody for themselves. The chancellor ruled that Crystal and Drew were unfit to have custody, and awarded custody to Monica. He assessed the GAL’s $3,000 fee one-half to Monica, and one-half to the Combses. Monica appealed. The COA affirmed.

Judge Carlton addressed the issue for the court:

¶34. Monica next asserts as error the chancellor’s judgment assessing half of the GAL fee to Monica and the other half to the Combses. Monica admits that the GAL substantiated Monica’s allegations of neglect set forth in her petition seeking custody, but Monica maintains that it is a manifest injustice to assess against her, the prevailing party, any portion of the fee from a GAL she did not request.

¶35. We recognize that “[o]ur rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party.” McCraw v. Buchanan, 10 So. 3d 979, 985 (¶20) (Miss. Ct. App. 2009) (quoting Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821 (¶9) (Miss. 2000). Mississippi Rule of Civil Procedure 17(d) provides: “In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action.” This Court has held that chancellors possess large discretion in apportioning costs. McCraw, 10 So. 3d at 985 (¶21). If upon review this Court finds that “the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.” Id.

¶36. In McCraw, 10 So. 3d at 985 (¶22), the chancellor appointed a GAL to represent the child’s “best interest, to investigate allegations of abuse, and to report any findings of abuse to the trial court.” The chancellor assessed the GAL fees equally against both parties. Id. Upon review, this Court found “no evidence in the record to indicate that the apportionment of the cost for the guardian ad litem was an undue burden to either party.” Id. As a result, this Court held that the chancellor “did not abuse his discretion in equally assessing the guardian ad litem fees to the parties.” Id.

¶37. In the present case, the chancellor’s January 20, 2015 opinion reflects the following assessment with regard to the GAL fee: “The GAL fee is set by the [c]ourt to be $3,000 with $1,500 to be paid by Monica, and $1,500 to be paid by [the Combses].” In her brief, Monica asserts that the apportionment of the GAL costs “work[s] a manifest injustice upon her”; however, she provides no evidence to support this allegation. Id. We thus find no error in the chancellor’s equal assessment of the GAL fee to Monica and the Combses.

A thought or two:

As I pointed out in a previous post on this very topic, MRCP 54(d) specifically authorizes the chancellor to do exactly as he did here. It states, in part, “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs … ” [my emphasis]. That means to me that the court can direct any assessment that is reasonable. I don’t understand why R54 is never mentioned in these cases.
If you’re going to claim that the chancellor’s assessment works a hardship on your client, then for gosh sake, make a record. Offer an 8.05 financial statement. Have your client testify about her financial straits. If you don’t make a record, (a) the trial judge has no basis to make that ruling, and (b) you won’t be able to argue it successfully on appeal. Remember that, in every case in which a GAL is appointed, assessment of the fee is going to be made by the trial judge, which means that it is an issue on which you need to present some evidence.

Where Am I?