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.
March 9, 2015 § Leave a comment
The recent MSSC decision in Gateley v. Gateley, handed down February 12, 2015, is a notable guardian ad litem (GAL) case in several respects.
Clayton and Lauren Gateley had entered into a consent to divorce on the sole ground of irreconcilable differences, leaving several issues for adjudication by the court, including custody of their 6- and 2-year-old children.
Both parties pointed the finger of unfitness at each other. Lauren accused Clayton of drinking too much beer. Clayton accused Lauren of suffering from trichotillomania — “a nervous disorder characterized by the irresistible impulse to pull one’s own hair.”
At trial, Lauren’s witnesses did not corroborate her accusations that Clayton would drink before, during, and after work, that he drove around with a cooler of beer in his truck and drank beer while driving, including when the children were in the car, and that he would often be drunk. Clayton denied all of the allegations, and Clayton’s witnesses backed him up.
Clayton testified that Lauren spent hours in the bathroom indulging her hair-pulling, taking her attention away from the children. Lauren denied it, but Clayton’s witnesses contradicted her.
The chancellor found that two Albright factors favored Clayton: physical and mental health of parents, and stability of home environment. And two favored Lauren: age and sex of the children, and better parenting skills. The other factors favored neither. But:
¶10. Noting that each parent had two factors in their favor, the chancellor explained “this is not a scoring contest. It must be considered in the overall circumstances in which the parents and children find themselves.” After considering “the totality of the circumstances and examining those factors accordingly,” and finding both parties “fit, proper and suitable parents,” the chancellor awarded Clayton custody of the son and awarded Lauren custody of the daughter. This unusual arrangement, he explained, would only be temporary, until an investigation could be conducted and a custody determination finalized.
The GAL, attorney Debra Branan, filed no written report, but did give her recommendations at trial. Her testimony was generally based on hearsay. She recommended that, if the court did not continue the split-custody arrangement, custody be awarded to Clayton. Neither attorney questioned the GAL. Neither party, after being given the opportunity by the court, had anything further by way of testimony or argument.
The court entered an order granting custody to Clayton, and Lauren appealed.
The MSSC affirmed, unanimously.
On the question whether the GAL report was adequate:
¶21. We find it unnecessary to pass on the question of whether Branan’s investigation was lacking. Because, even assuming for purposes of argument that Branan’s investigation was woefully inadequate—as Lauren argues—we still would affirm the chancellor. As stated above, the “cardinal principle” in custody decisions is what is in the “best interests and welfare of the minor child.” Once a chancellor has decided what is in a minor’s best interests, we will not overturn that decision—provided it is based on substantial evidence—unless it is clearly erroneous. After careful review, we find that the chancellor’s decision here is supported by substantial evidence and is not clearly erroneous.
¶22. This Court previously has held: “In any case where a [guardian ad litem] is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the [guardian ad litem], as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves . . . .Thus the question to be answered by this Court is . . . whether the evidence in the record support[s] the chancellor’s decision.” Lorenz v. Strait, 987 So. 2d 427, 431 (Miss. 2008) (citing Yates v. Yates, 284 So. 2d 46, 47 (Miss. 1973)) (emphasis added).
¶23. As noted above, the chancellor discussed each Albright factor individually and specifically. In doing so, he made several findings of fact that provide support for his ultimate custody determination. Among those, that Clayton offered the more stable home, that Clayton was mentally healthier than Lauren, and that Lauren had moved twice and lived in a four-bedroom house with her boyfriend and his two children.
¶24. Our law does not mandate that the chancellor follow a guardian ad litem’s recommendation, because the chancellor, “not the guardian ad litem, is the ultimate finder of fact.” S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009) (citing Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002)). The chancellor made this clear to the parties when he explained that he would “listen to [Branan’s] recommendation and may very well accept her recommendation, reject her recommendation, do something totally different, or leave it the way it is.”
¶25. In short, the chancellor properly fulfilled his role as factfinder by considering Branan’s oral report and her recommendation, along with all the other relevant evidence, and determining how much weight it deserved. See Hensarling, 842 So. 2d at 587. See also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000) (“The guardian ad litem’s presence . . . in no way detracts from the chancellor’s duty to hear the evidence and make a decision on all of the evidence, not just on the testimony of the guardian ad litem.”); S.G., 13 So. 3d at 282 (“Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.”).
¶26. Moreover, this Court will uphold a chancellor’s custody order even if it is partly based on a less-than-perfect guardian-ad-litem investigation. See White v. White, 26 So. 3d 342 (Miss. 2010). In White, the chancery court modified a custody order in favor of a father, and when the mother appealed, this Court affirmed. Id. at 352. The chancellor considered a guardian ad litem’s recommendation, even though the guardian ad litem had not conducted a court-ordered home study (or otherwise visited the mother’s home), and had not reviewed all the records she had sought from the mother. In affirming the judgment of the chancery court, this Court did not even address the arguments about the guardian ad litem’s recommendation, explaining that “[o]n appeal, we cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Id. at 352.
As for whether the issue of the adequacy of the report was preserved for appeal, Justice Lamar addressed the question in footnote 4:
As noted above, Lauren declined to cross-examine Branan and failed to make any contemporaneous objections. However, these issues are preserved for appeal because of their bearing on the best interests of the minor children involved. Natural Father v. United Methodist Children’s Home, 418 So. 2d 807, 809 (Miss. 1982) (Explaining that in “case[s] where the basic issue involves the rights and destiny of small children” this Court relaxes “[t]he general rule . . . that questions not raised at the trial level will not be considered . . . as grounds for reversal”). And we also note that, strictly speaking, Lauren raised these “at the trial court level” in her motion to reconsider, which the chancellor denied on its merits.
Boiled down to its essentials, the chancellor was affirmed because there was substantial evidence in the record to support his findings. That’s as it should be.
A couple of pointers:
- If the judge is going to appoint a GAL, insist on a written report to be provided to you well in advance of trial. It’s no fun to be ambushed. If the judge won’t include an order for a written report in advance of trial, file a motion asking for it to be done, and get a ruling so as to preserve the point for appeal.
- If the GAL report is against your client, have witnesses lined up to refute it. Always cross-examine the GAL.
I was glad to see that the court did not take McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), to the next level by outlawing all hearsay in GAL reports as Justice Dickinson suggested in his specially concurring opinion in that case. Justice Lamar’s opinion reflects what should be our law: that the overriding consideration in child custody cases is the best interest of the child, and whatever resources can be brought to bear to achieve it should be used.