Gilbert v. Gilbert

• Decision Date: 12 May 1995
• Docket Number: 94-489,Nos. 94-190,s. 94-190
• Citation: 163 Vt. 549,664 A.2d 239
• Parties: Eugene E. GILBERT v. Donna L. GILBERT.
• Court: Vermont Supreme Court

Page 239

664 A.2d 239

163 Vt. 549

Eugene E. GILBERT v. Donna L. GILBERT.

Nos. 94-190, 94-489.

Supreme Court of Vermont.

May 12, 1995.

Motion for Reargument Denied June 13, 1995.

Thomas W. Costello and Joel T. Faxon of Thomas W. Costello, P.C., Brattleboro, for plaintiff-appellee.

Gwendolyn W. Harris of Kiewel & Harris, P.C., Brattleboro, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Today, we rule that the family court erred in relying on the written report of a guardian ad litem (GAL) that contained personal judgments and conclusions by third parties not contained in the record, when such report was objected to by a party and not admitted pursuant to the rules of evidence. Accordingly, we reverse and remand the award of parental rights and responsibilities to the father. Defendant mother also appeals the denial of a subsequent motion to stay the transfer of custody pending appeal, in which the judge granted plaintiff attorney's fees for the motion. We affirm the denial of the motion, but reverse the award of attorney's fees.

I.

The parties were married in 1982, and two years later their son, Gregory, was born. Plaintiff filed for divorce in February 1993. In response to a request by the parties, the court appointed a GAL for Gregory. The guardian conducted extensive investigations and filed a detailed report six days before the hearing on the merits.

During the first day of the hearing, defendant objected to the admission of the guardian's report on the ground that it violated V.R.F.P. 7(d). In a written order, the court overruled defendant's objection and admitted the report because, at an earlier hearing on temporary matters, the parties had agreed to its submission, even though the report had not yet been written. After the hearing, the trial court awarded sole parental rights and responsibilities to plaintiff and granted defendant extensive parent-child contact. Defendant appeals, arguing that the court's decision relied inappropriately on the report filed by the guardian. We agree. ¹

In a divorce action involving a child, the trial court must award parental rights and responsibilities to one parent when the parties cannot agree to divide or share these responsibilities or when the court determines that a parental agreement is not in the child's best interests. 15 V.S.A. §§ 665(a), 666(c). The award of parental rights and responsibilities must be based on the best interests of the child, reflecting a consideration of all relevant evidence, including the enumerated statutory factors. Id. § 665(b); Harris v. Harris, 149 Vt. 410, 412, 546 A.2d 208, 210 (1988). A proper decision requires a complete and balanced analysis, comparing the relevant attributes of each parent as they relate to the best interests of the child. See Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989); Harris, 149 Vt. at 417, 546 A.2d at 213. Although the trial court has broad discretion in awarding parental rights and responsibilities, Nickerson v. Nickerson, 158 Vt. 85, 88, 605 A.2d 1331, 1333 (1992), it may not rest its decision entirely on improperly admitted evidence. See Hathaway v. Ray's Motor Sales, Inc., 127 Vt. 279, 282, 247 A.2d 512, 514 (1968) (verdict supported only by evidence erroneously received cannot stand).

In a parental-rights-and-responsibilities case, the court may appoint a GAL for the child. 15 V.S.A. § 669; V.R.F.P. 7(c). The GAL's role is circumscribed by Rule 7(d). The proper role for the GAL in a divorce case is "to minimize the harm suffered by the child during the breakup of the family rather than to assist the attorney and the child in making the choices that parties must make in our adversary system." Reporter's Notes, V.R.F.P. 7. The guardian is "an independent parental advisor and advocate whose goal shall be to safeguard the child's best interest." V.R.F.P. 7(d). In essence, the guardian acts as a buffer between the child and the adversarial nature of our judicial process.

Rule 7(d) contemplates that the guardian must develop a full understanding of the issues to be able to inform the child about all of the proceedings. To do so, the rule provides that the guardian shall review all relevant court documents and meet with the child's attorney, if the child has one. Once the guardian is familiar with the issues, the guardian can inform the child as to the options presented to the court. Id. If the child has an attorney, the guardian is to assist the attorney in advising the child about these options. Id.

The guardian's role at the merits hearings is limited. The rule provides that the guardian shall not testify unless the testimony is "directly probative of the child's best interest, and no other persons could be employed or subpoenaed to testify on the same subject matter." Id. If the guardian does become a witness, the court may, in its discretion, appoint a new guardian. Id. The rule does provide for the guardian to state a position to the court, but it imposes an important restriction on the making of such statement: the guardian's position must be based on the evidence in the record. If the child has a position, either the guardian or the child's attorney should state that position. Id. Finally, the guardian may not be relied upon for parental evaluations or home studies. Reporter's Notes, V.R.F.P. 7(d); cf. V.R.F.P. 5(a) (court may order party evaluation or home study).

The rule also contemplates that the guardian may prepare a written report and submit it to the parties. V.R.F.P. 7(d). The scope of this report is not limited; nevertheless, as mentioned above, a guardian should not be asked to include parental evaluations or home studies in the report. Reporter's Notes, V.R.F.P. 7(d). After the report has been reviewed by the parties, it may be submitted to the court only if both parties agree or pursuant to the rules of evidence. Id.

In this case, the guardian's report should not have been submitted to the court, and reliance on the report was an abuse of the court's discretion.

A.

As an initial matter, we consider plaintiff's argument that we should not address the issue of the guardian's report because no proper objection was made to its admission.

Plaintiff argues that defendant's objection was not sufficiently specific. V.R.E. 103(a)(1). Plaintiff claims defendant's objection was based only on the lack of an agreement as to its submission. In the beginning of the hearing, however, defendant objected to admission of the report. In support of her objection, defense counsel quoted at length from Rule 7(d) and from the Reporter's Notes. She then argued that regardless of any prior agreement, admission of the report would violate "the spirit of the Rule." Thus, she clearly indicated that she objected to admission of the report regardless of what the parties had agreed to earlier. Defendant's objection gave the judge sufficient notice that she objected to admission of the report on the grounds that it violated both the purpose and the substance of Rule 7(d).

B.

Plaintiff claims that any objection was waived because the parties agreed, at the preliminary hearing, to admit the forthcoming report into evidence. We conclude, however, that such an agreement can be binding only after the parties have had an opportunity to review the report.

While the rule is not clear about the proper sequence, it states that the report must be submitted to the parties, and a certificate of service upon the parties must be filed with the court. V.R.F.P. 7(d). Then, the rule states that a report shall be submitted to the court only by agreement of the parties or pursuant to the rules of evidence. Id. The sequence in the rule implies that the agreement may be reached only after the report has been submitted to the parties. See Reporter's Notes, V.R.F.P. 7(d) (filing of GAL report with court "permissible only after submission to the parties" and only by their agreement "or pursuant to the rules of evidence").

This interpretation is consistent with the purpose of the guardian's report--a neutral party's view of the child's best interests. The report may incorporate a wide variety of information that may or may not be deemed sufficiently trustworthy to be admissible in a court of law. To prevent the court from considering potentially untrustworthy evidence, a binding agreement to submit the guardian's report can be made only after the parties have had an opportunity to evaluate its contents. Then, the parties may agree to admit part or all of the report. Only after the parties have agreed to submit the report may the court consider the substance of the report without complying with the formal rules of evidence. The agreement provision in Rule 7(d) is an exception to the rules of evidence and should be interpreted in such a way as to encourage fair and impartial decisions based on trustworthy evidence. ²

Because the agreement in this case was made before the report was submitted to the parties, it is not a binding agreement. Lacking a binding agreement between the parties or a formal admission pursuant to the rules of evidence, the court should not have considered the guardian's report.

C.

If we could be sure that the GAL's report, although considered in violation of the rule, played no role in the court's decision, we would not reverse. Indeed, plaintiff claims that consideration of the report was not essential to the decision because all of the information in the guardian's report was also present in the evidence on the record. It is true that many of the representations made by the guardian were later put into evidence, but this misses the point of what went wrong at trial.

A careful review of the record demonstrates that the guardian's report significantly influenced the presentation of evidence. In fact, the report defined the factual issues to be examined. The report, issued six days before the hearing, placed...