Barber v. Barber

• Citation: 288 So.3d 325
• Decision Date: 30 January 2020
• Docket Number: NO. 2018-CA-01282-SCT,2018-CA-01282-SCT
• Parties: Sylvia P. BARBER v. Mark C. BARBER
• Court: United States State Supreme Court of Mississippi

288 So.3d 325

Sylvia P. BARBER

v.Mark C. BARBER

NO. 2018-CA-01282-SCT

Supreme Court of Mississippi.

January 30, 2020

ATTORNEY FOR APPELLANT: KENNETH TREY O'CAIN, Ridgeland

ATTORNEYS FOR APPELLEE: JOHN ROBERT WHITE PAMELA, GUREN BACH

BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. Mark and Sylvia Barber were divorced in Madison County Chancery Court. The court awarded Mark Barber custody of the parties' minor children. The trial court had appointed a guardian ad litem during the divorce proceedings to investigate allegations raised by Sylvia Barber that Mark Barber had abused their children. The chancellor, however, granted Mark Barber's motion to limit testimony of the guardian ad litem and to exclude a guardian ad litem report from evidence after finding Sylvia Barber's allegations of child abuse to be unsubstantiated.

¶2. On appeal, Sylvia Barber argues that the trial court abused its discretion by not allowing the guardian ad litem to testify or by not admitting into evidence a guardian ad litem report. She contends that the exclusion impermissibly prevented the guardian ad litem from completing its court-appointed role and precluded admission of relevant and required findings regarding the alleged abuse and the best interest of the children. Mark Barber contends that the trial court did not err because a chancellor has the authority and the discretion to expand or limit the guardian ad litem 's role, and he argues additionally that the guardian ad litem 's findings contained inadmissible hearsay.

¶3. The court did not abuse its discretion by limiting the guardian ad litem 's participation. But because the appointment was mandatory, the chancellor was required at least to consider the guardian ad litem 's report and recommendations. He declined to do so. Accordingly, we reverse the judgment of the Madison County Chancery Court, and we remand the case for the chancellor to make findings of fact and conclusions of law that take into consideration the guardian ad litem 's report and recommendations.

FACTS AND PROCEDURAL HISTORY

¶4. Mark Barber and Sylvia Barber were married on March 8, 2008, in Apopka, Florida. They had four minor children: G.L.B., a male child born in 2008; M.C.B., a male child born in 2012; R.E.B., a male child born in 2015; and T.A.B., a male child born in 2016. Sylvia Barber also is the mother of a son from a prior relationship, B.A., born in 2003, who resided with the Barbers during their marriage. The couple moved to Mississippi and lived in Ridgeland in Madison County, until their separation in 2018.

¶5. Mark Barber filed his complaint for divorce on February 15, 2018, in the Chancery Court of Madison County on grounds of adultery or, in the alternative, irreconcilable differences. He asked for sole legal and physical custody of the parties' minor children. The court ordered a hearing to determine temporary custody of the children pending a final judgment of divorce.

¶6. A special family master conducted a temporary relief hearing on March 20, 2018. Sylvia Barber appeared pro se. The family master recommended, and the chancellor ordered, that Mark Barber be granted immediate temporary physical custody of the Barber's four minor children.

¶7. On March 23, 2018, Sylvia Barber filed a motion for relief from the order and for a rehearing, claiming that Mark Barber had abused their minor children. She alleged that "placing the minor children in the sole care and custody of Mark is not in the children's best interests and would place them all in an unsafe and dangerous environment" because "Mark is guilty of conduct constituting abuse towards [sic] the minor[s]." She requested that she be awarded legal and physical custody of the children, and she also asked the chancellor to appoint a guardian ad litem "in order to investigate the abuse."

¶8. On April 6, 2018, the chancellor heard the motion and appointed a temporary guardian ad litem , Jessica Culpepper, to examine the allegations of child abuse. The court ordered Culpepper to "conduct an investigation as she deems appropriate in her professional opinion; [to] interview the parties and interested witnesses; [and to] prepare a report at the conclusion of her investigation and any interim reports as needed regarding the mandatory appointment of a Guardian Ad Litem. " Further, the chancellor charged the guardian ad litem with protecting "the best interest and welfare of these children ... report[ing] to this Court if there is even a shred of thought that there might be any danger to the child."

¶9. The guardian ad litem prepared a preliminary report that she submitted April 12, 2018. She found that,

[a]fter a preliminary investigation, the Guardian Ad Litem believes that the allegations before this Court, although unsubstantiated at this time, do rise to the level that the [guardian ad litem ] should be appointed as a permanent [guardian ad litem ]. The Guardian Ad Litem asks that she be appointed to this matter as a permanent Guardian Ad Litem with the authority to further investigate all areas of these allegations.

¶10. After receipt of the guardian ad litem 's findings, the court appointed Jessica Culpepper as a permanent guardian ad litem on April 16, 2018. The chancellor authorized Culpepper to continue in her assigned role; to prepare interim and final reports "as needed regarding placement of the children, including any and all factors supportive and unsupportive of the recommendation; and [to] act in all respects to assist the Court in protecting the best interests of the minor children."

¶11. Following the chancellor's order, the guardian ad litem extended her investigation and authored a report that included her findings and recommendations. The guardian ad litem provided the report to the parties. The report was not entered into evidence at trial, and its contents are not part of the record on appeal.

¶12. On June 19, 2018, Mark Barber filed a "Motion to Strike Final Report of Guardian ad Litem and to Limit Testimony of Guardian ad Litem." He asked that the guardian ad litem 's report be struck in whole or in part because its contents, inter alia , contained an Albright¹ factors analysis and recommended a permanent custody determination without express authorization from the court, presented the custody preference of a child younger than twelve, and incorporated "opinions and recommendations expressed ... based on or influenced by hearsay and limited personal observations and experience." He also requested that the court not permit the guardian ad litem "to support her recommendations with hearsay or to testify to any matter about which she does not have personal knowledge" and asked that "the [guardian ad litem ] ... not be permitted to offer ‘expert’ opinions in her report or through testimony."

¶13. Sylvia Barber filed her response to the motion to strike, contending that the guardian ad litem was authorized and required to complete its investigation and report with respect to the best interests of the children and that exclusion would eliminate the guardian ad litem 's role, "which goes directly against the Court's intent and purpose ... behind the basis for her appointment to begin with." She further argued that utilizing the Albright factors within the report was necessary and required by law in "assisting the court with the ultimate determination of the placement of the children."

¶14. The trial court heard the complaint for divorce and all motions over a period of three days.² Numerous witnesses testified concerning the parties' roles as parents and their fitness to have custody. And testimony was adduced regarding the allegations of abuse.

¶15. Mark Barber argued the motion to strike on August 3, 2018, before the guardian ad litem was called to testify. He contended that the guardian ad litem report should not be entered into evidence because the guardian ad litem was not authorized to make an Albright analysis for the court. He also submitted that the report "is nothing but a hearsay conduit," contravening the Mississippi Rules of Evidence.³

¶16. In response, Sylvia Barber answered that a guardian ad litem —as a duly appointed officer of the court—is obligated to testify and that the chancellor "specifically charged the guardian ad litem with the responsibility to investigate[,] ... to interview the parties and witnesses, and to prepare a report at the conclusion of her investigation." Additionally, Sylvia Barber cited decisions of other courts that have approved the introduction of a written guardian ad litem report or that allowed a guardian ad litem to testify subject to cross-examination.

¶17. The chancellor stated at the hearing that he had not read the guardian ad litem report. He questioned the "foundation [of] the initial abuse allegations" and whether the guardian ad litem should testify "if [the] Court has heard three days' worth of testimony [without] hear[ing] anything that would rise to the level of appointing a guardian ad litem. "

¶18. Before ruling on the motion, the chancellor requested a brief statement from the guardian ad litem : the chancellor inquired whether the guardian ad litem , "based upon the evidence ... heard in the two and a half days of trial[, had] found any credible evidence of abuse or neglect of these children[.]" The guardian ad litem testified that, "[b]ased on what I have heard at trial[,] ... I believe there is some credible evidence that there has been some abuse. It does not rise to an alarming level, but there has been some abuse." This question was limited to what the guardian ad litem had heard during the trial. She was not being asked whether she had found evidence of abuse or neglect in her investigation.

¶19. The chancellor then found, having received testimony from the parties and witnesses, that Sylvia Barber's allegations lacked support; accordingly, the chancellor determined that the guardian ad litem 's testimony was not required and that...