Carter v. Carter

• Decision Date: 06 October 2015
• Docket Number: No. 2014–CA–00041–COA.,2014–CA–00041–COA.
• Citation: 204 So.3d 803
• Court: Mississippi Court of Appeals
• Parties: Jennifer CARTER, Appellant v. Josh CARTER, Appellee.

204 So.3d 803

Jennifer CARTER, Appellant

v.Josh CARTER, Appellee.

No. 2014–CA–00041–COA.

Court of Appeals of Mississippi.

Oct. 6, 2015.

Rehearing Denied March 8, 2016.

Glenn S. Swartzfager, James Christopher Walker, Jackson, attorneys for appellant.

Anselm J. McLaurin, Brandon, attorney for appellee.

EN BANC.

FAIR, J., for the Court:

¶ 1. The Rankin County Chancery Court granted Josh Carter's petition to modify the custody of his six-year-old daughter, Delaney, who had been in the care of her mother, Jennifer. On appeal, Jennifer asserts a single error. She contends that the chancery court erred in not appointing a guardian ad litem, sua sponte, to investigate what she argues were Josh's allegations of neglect. We find that the allegations were either not severe enough to require investigation or were adequately investigated by an agent of the court who acted as a guardian ad litem in all but name. We affirm.

DISCUSSION

¶ 2. Josh and Jennifer Carter divorced in Rankin County in 2011, and Jennifer got custody of Delaney. After the divorce, Jennifer changed jobs and moved several times, ending up living near her mother near Lumberton, Mississippi, about two hours south of the Carters' original home.

¶ 3. In May 2012, Josh filed a complaint for modification which alleged, without specificity, that there had been a material change in circumstances that had adversely impacted Delaney, tracking the language of the legal standard for custody modification. See, e.g., A.M.L. v. J.W.L., 98 So.3d 1001, 1015–16 (¶ 35) (Miss.2012). As the litigation progressed, two bases for the finding of a material change in circumstances emerged: the condition of Jennifer's residence, and Delaney's health issues and care while in Jennifer's custody.

¶ 4. About six months after filing his complaint for modification, Josh filed a "Request for Inspection" of Jennifer's home, pursuant to Mississippi Rule of Civil Procedure 34. No basis for the request was stated on the motion's face, and, although it appears to have been heard before the chancery court, the hearing on the motion was not transcribed or its substance otherwise made a part of the record on appeal. Following the hearing, the chancellor found that it would not be appropriate for Josh or his attorney to inspect Jennifer's property. Instead, he entered an order¹ appointing Heather M. Aby, an attorney, to inspect Jennifer's home and submit a report to the court.

¶ 5. Aby prepared what she styled a "Report of Guardian Ad Litem" detailing her findings. She found that Jennifer and Delaney were residing in a one-bedroom mobile home that had been previously used by an auto repair shop. The building was "structurally unsound and in a state of disrepair." In one place, the roof had been covered with a tarp, which was held down by an old tire. The inside was cluttered and bore stains from water intrusion, accompanied by what looked like mold. The yard surrounding the building was overgrown and littered with garbage, including old furniture and appliances, as well as a rusted metal fan lying in high grass that Aby thought would be dangerous to a small child. Aby also inspected a building that was under construction on the property, which Jennifer called a "cabin" and her future home—Aby characterized it as a utility building or shed that was being half-heartedly converted into a residence, and she expressed concern that it could be a fire hazard because there was only one entry door (though it did have several small windows). Aby concluded that Jennifer's home was "generally not safe for a minor child," and she recommended that it was not in Delaney's best interest to live in either the mobile home or the cabin.

¶ 6. Aby testified at trial, and her report and accompanying photographs were introduced into evidence. The chancellor largely agreed with Aby's report and recommendation, finding Jennifer's home to be "shocking," "squalid," and "dangerous."

¶ 7. Neither party ever asked the chancery court to appoint a guardian ad litem. Jennifer's sole issue on appeal is her contention that the chancellor erred by not sua sponte ordering the appointment of a guardian ad litem following Aby's testimony regarding her home, which Jennifer contends amounted to an allegation she had neglected Delaney.

¶ 8. Josh argues that this issue has been waived. He asserts that, at some point, the chancellor raised the issue of whether a guardian ad litem should be formally appointed, and both parties agreed it was unnecessary. But if this occurred, it was not transcribed or otherwise made a part of the record; and this Court cannot credit assertions in briefs in the absence of support in the record. Yancey v. Yancey, 752 So.2d 1006, 1012 (¶ 20) (Miss.1999).

¶ 9. Ordinarily, the decision of whether to appoint a guardian ad litem is entrusted to the sound discretion of the chancellor. Scroggins v. Riley, 758 So.2d 467, 472 (¶ 19) (Miss.Ct.App.2000). But when there are allegations of abuse or neglect in a custody dispute, the Mississippi Supreme Court has held that Mississippi law requires the chancery court to appoint a guardian ad litem to investigate the allegations. Floyd v. Floyd, 949 So.2d 26, 28 (¶ 7) (Miss.1995) (citing Miss.Code Ann. § 93–5–23 (Supp.2006) ).

¶ 10. Neither Aby nor Josh expressly accused Jennifer of neglecting Delaney. Jennifer testified, without objection, that her home had been investigated by the Mississippi Department of Human Services and that the case had been closed. From the transcript, it appears that records from the Lamar County DHS may have been sent to the chancellor prior to the trial on the modification action, but, at the beginning of the modification trial, the chancellor stated he had not yet opened what he had received. A discussion then apparently occurred off the record, and whatever records had been sent were never mentioned again on the record. The DHS records were not cited by the chancellor in his findings of fact, used by either party at trial, or otherwise made part of the record on appeal.

¶ 11. Assuming for the sake of argument that Aby's testimony amounted to an allegation of neglect, we still find that no error occurred. Undoubtedly, Aby's appointment was irregular and her instructions somewhat unclear. Her appointment was purportedly pursuant to Mississippi Rule of Civil Procedure 34, which allows inspection of property by a party or his attorney. The order, although reciting that the court found it inappropriate for Josh or his attorney to inspect Jennifer's property, refers to Aby's assignment as a " Rule 34 inspection" and required Josh to pay Aby's fee. From this, Jennifer asserts that Aby "could easily be viewed" as Josh's proxy or agent. But Jennifer does not actually make that argument—Aby, the parties, and the court all seem to have understood Aby to have been assigned to act as a neutral, investigative agent for the court; and at no point does she appear to have acted as Josh's agent or advocate. Aby was ordered to report to the court, and she, initially at least, appears to have understood her assignment to be that of a guardian ad litem, as that was how she styled her report. At the modification hearing, the chancellor initially referred to Aby as a guardian ad litem before backing off that label to call her "an observer, basically, or someone to make a report." The chancellor also recalled that Aby "was not formally appointed as an arm of the Court except for the limited issue of performing, I think, an inspection."

¶ 12. Jennifer does not argue that a guardian ad litem should have been appointed to simply rehash the investigation undertaken by Aby. Instead, she argues that a guardian ad litem was required to present a "panoramic" investigation of Delaney's circumstances. However, the Mississippi Supreme Court in the landmark decision of S.G. v. D.C., 13 So.3d 269, 280–81 (¶ 47) (Miss.2009), discussed the various roles a guardian ad litem can play in a chancery case, and it emphasized that the chancellor must have discretion in crafting the guardian ad litem's duties to the specific needs of the case at hand:

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.

In this case, Aby was appointed for a specific purpose—to investigate Jennifer's home environment—just as the supreme court contemplated in S.G. v. D.C.

¶ 13. Jennifer also contends that Delaney should have been appointed a guardian ad litem to serve as her attorney. We recently rejected the same argument in Jones v. Brown, 154 So.3d 919, 923 (¶ 13) (Miss.Ct.App.2015). This Court noted that the supreme court in S.G. v. D.C. had cited allegations of abuse or neglect as an instance where the guardian ad litem should serve as an investigator and an arm of the court, representing the child's best interest in the stead of the child directly. Id. (citing S.G., 13 So.3d at 281 (¶ 48) ). From our review of the record, that is exactly what Aby did, notwithstanding that she renounced the guardian ad litem label when she testified at trial. The example the supreme court gave of a case where the guardian ad litem should act as the child's attorney was a will...