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.

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