Carter v. Carter

• Decision Date: 01 December 2016
• Docket Number: NO. 2014–CT–00041–SCT,2014–CT–00041–SCT
• Citation: 204 So.3d 747
• Parties: Jennifer Carter v. Josh Carter
• Court: Mississippi Supreme Court

204 So.3d 747

Jennifer Carter

v.Josh Carter

NO. 2014–CT–00041–SCT

Supreme Court of Mississippi.

December 1, 2016

ATTORNEYS FOR APPELLANT: GLENN S. SWARTZFAGER, JAMES CHRISTOPHER WALKER

ATTORNEY FOR APPELLEE: ANSELM J. McLAURIN

EN BANC.

ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. In 2011, Jennifer Carter and Josh Carter divorced, and Jennifer was granted legal and physical custody of their daughter Delaney Carter. A year later, Josh filed a motion for modification of custody. The Rankin County Chancery Court awarded Josh physical custody of Delaney, with the parties sharing joint legal custody. Jennifer appealed, and the Mississippi Court of Appeals affirmed the judgment of the chancery court. Jennifer seeks review of that judgment on certiorari, arguing that the chancellor erred in not appointing a guardian ad litem, because allegations of neglect arose during the course of the proceedings, making such appointment mandatory. Because there were no charges of neglect or abuse as required under Mississippi Code Section 93–5–23, and because insufficient proof was adduced of abuse or neglect, the judgments of the Court of Appeals and the Rankin County Chancery Court are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Josh Carter and Jennifer Carter obtained a divorce in June 2011 in the Rankin County Chancery Court. The chancery court awarded Jennifer legal and physical custody of their four-year-old daughter Delaney Carter. After the divorce, Jennifer changed jobs three times. She then moved into a mobile home near Lumberton, Mississippi, two hours south of the Carters' original home. On May 23, 2012, Jennifer sent a letter to the clerk of the Chancery Court of Rankin County, advising the clerk of her new address.

¶ 3. Two days later, Josh filed a motion to modify Jennifer's custody of Delaney. Josh's motion stated only that "certain material changes in circumstances have occurred which have had and will likely continue to have an adverse impact upon her [Delaney]. Such changes in circumstances justify a modification of the former judgment to award the custody of the minor child unto Plaintiff [Josh]." Josh did not specify what these material changes in circumstances were.

¶ 4. In response to Josh's motion, Jennifer filed a motion to dismiss, or in the alternative, a motion for a more definite statement or for a continuance to conduct discovery. She argued that there had been no material change in circumstances and that Josh had failed to state any facts to support his motion. The chancellor denied Jennifer's motion.

¶ 5. Josh filed a motion under Rule 34 of the Mississippi Rules of Civil Procedure to inspect and take pictures of Jennifer's new residence. Josh did not provide the chancery court with a basis for this request. The chancellor entered an order authorizing a Rule 34 inspection. But the chancellor found that it was not appropriate for Josh or his attorney to inspect Jennifer's property. So the chancellor appointed Heather M. Aby ("the inspector"), who conducted the investigation of Jennifer's property on May 31, 2013.

¶ 6. The trial was conducted over two days, July 18, 2013, and September 11, 2013. Although there was some initial confusion, the chancery court and both parties agreed that the inspector had not been appointed as a guardian ad litem but rather as an investigator for the trial court, even though she had styled her report as the "Report of Guardian Ad Litem."¹

¶ 7. The inspector testified that the mobile home, yard, and cabin were messy, unclean, and unkempt. She noted that the grass was uncut and that trash, debris, and appliances were scattered throughout the property. In the inspector's opinion, Jennifer's residence was unsafe for a six-year-old child. The inspector's photographs of Jennifer's residence, along with the one-page report, were entered into evidence.

¶ 8. The deposition of Dr. Naznin Dixit, taken approximately a year earlier, on October 10, 2012, also was admitted into evidence on the first day of the hearing at the request of Josh. Dr. Dixit was a pediatric endocrinologist who had diagnosed Delaney as having a failure to thrive, meaning that Delaney was not growing as she should, and she was in the third percentile nationally in weight and height. Though Delaney was small for her age, Dr. Dixit concluded that her test results were within a normal range and that she was healthy. Dr. Dixit denied there were any signs of abuse or neglect.

¶ 9. By the second day of the trial, nearly two months later, some improvements had been made to Jennifer's property. Jennifer and Delaney no longer were living in the mobile home. They had taken up residence in an adjacent cabin on the property, which by that time had been mostly renovated and had passed county inspection. She admitted that most of the other improvements to the yard had been made in the week before trial.

¶ 10. The chancellor rendered his decision from the bench. The chancellor referred to the inspector's report and described Jennifer's residence as a "squallerly and dangerous, shocking environment ...[that it was] shocking, outrageous that any child should have to live in conditions such as that ... [and that it was a] per se adverse influence ...." He continued to describe the residence as an "unsafe condition, dangerous to a child, unkempt, junky, unhealthy, deplorable, almost uninhabitable, and shocking." The chancellor entered a judgment of modification, finding that Josh had made a showing of a material change in circumstances which adversely affected Delaney and that, after considering all of the Albright² factors, the factors "slightly" favored Josh. The chancellor relieved Josh of his child-support obligations and ordered Jennifer to pay Josh $118 per month in child support.

¶ 11. On September 25, 2013, Jennifer filed a motion for reconsideration and/or in the alternative a new trial under Rule 59 of the Mississippi Rules of Civil Procedure. Jennifer retained new counsel and filed a supplement to her motion on November 16, 2013. The chancellor denied the motion, and Jennifer appealed.

¶ 12. In her appeal, Jennifer raised a single issue: whether the chancery court had erred in failing to appointing a guardian ad litem when it was mandatory because of what she argued were Josh's allegations of neglect. Carter v. Carter , 204 So.3d 803, 805–06, 2015 WL 5813572, *2 (Miss. Ct. App. Oct. 6, 2015). Believing the issue to be one of first impression, the Court of Appeals adopted a new threshold standard for the appointment of a guardian ad litem by requiring that the allegations of neglect "must amount to an allegation that the child was a neglected child as defined by the Youth Court Law." Carter , 204 So.3d at 808, 2015 WL 5813572, at *5. Under this standard, the Court of Appeals concluded that the chancellor did not err by failing to appoint a guardian ad litem and affirmed the chancery court's judgment. Id. This Court granted Jennifer's petition for writ of certiorari.

¶ 13. We address three issues in this case: first, whether the issue of the mandatory appointment of a guardian ad litem is properly before this Court, as Jennifer failed to raise the issue in a timely-filed Rule 59 motion for a new trial; second, whether the appointment of a guardian ad litem was mandatory in this case; finally, whether the new standard announced by the Court of Appeals for the appointment of a guardian ad litem in child-custody cases concerning allegations of abuse and/or neglect is contrary to law.

DISCUSSION

I. Whether the issue regarding the requirement for the mandatory appointment of a guardian ad litem is properly before this Court, as Jennifer failed to raise the issue in a timely-filed Rule 59 motion for a new trial.

¶ 14. After oral arguments in this case, and at the request of this Court, the parties filed supplemental briefing on whether the requirement for a sua sponte appointment of a guardian ad litem could be raised for the first time as a supplement to a timely filed Rule 59 motion for new trial.³

¶ 15. The chancery court entered a judgment of modification on September 20, 2013. Five days later, on September 25, 2013, Jennifer, having hired new counsel, filed a "Motion for a Reconsideration and/or in the Alternative a New Trial Pursuant to Rule 59 of the [Mississippi Rules of Civil Procedure ]" On November 26, 2013—sixty-seven days after the entry of judgment for modification—Jennifer filed a Supplemental Motion for a Reconsideration and/or in the Alternative a New Trial Pursuant to Rule 59 of the [Mississippi Rules of Civil Procedure ]. For the first time, Jennifer argued that Josh had made allegations of neglect during trial and that the chancellor had erred in failing to appoint a guardian ad litem when it was mandatory under Mississippi Code Section 93–5–23. There is no evidence in the record that Josh's counsel objected to Jennifer filing this supplemental motion. In fact, at oral arguments, Josh's counsel admitted that he did not make any objections.

¶ 16. On December 9, 2013, the chancery court found "that the Supplemental Motion of Defendant is found not well taken and the same is overruled, dismissed and held for naught." So the chancellor considered Jennifer's supplemental motion claiming that the appointment of a guardian ad litem was mandatory.

¶ 17. Jennifer appealed on January 6, 2014. Though not asserted as a separate issue on cross-appeal, Josh nonetheless argued in the appellee's brief that the issue of mandatory appointment of a guardian ad litem was procedurally barred. The Court of Appeals affirmed the judgment of the chancery court, without commenting on whether the issue of the mandatory appointment of a guardian ad litem was procedurally barred. Carter , 204 So.3d at 810, 2015 WL 5813572, at *6. Presiding Judge Irving's dissent addressed the issue and stated that the issue was "procedurally alive and [was] properly before us." Carter , 204 So.3d at 812, 2015 WL 5813572, at *8 (Irving, P.J.,...