Morgan v. Getter

Decision Date18 September 2014
Docket NumberNo. 2013–SC–000196–DGE.,2013–SC–000196–DGE.
CourtUnited States State Supreme Court — District of Kentucky
PartiesFonda MORGAN, Appellant v. Daniel GETTER, and A.G., a Child, Appellees.

Cynthia Ann Millay, Counsel for Appellant.

Blaine Jefferson Edmonds, III, Counsel for Appellee Daniel Getter.

Joshua Bryan Crabtree, Richard Alex Konkoly–Thege, Counsel for Appellee A.G., a Minor Child.

Amy Elizabeth Halbrook, Counsel for Amicus Curiae Amy Halbrook, Law Professor.

Bonnie Maryetta Brown, Counsel for Amicus Curiae Kentucky Chapter of The American Academy of Matrimonial Lawyers.


Opinion of the Court by Justice ABRAMSON.

As of January 1, 2011, when the Family Court Rules of Procedure and Practice (FCRPP) went into effect, Rule 6 provides that in family court actions involving a dispute over custody, shared parenting, visitation, or support, the parties may request, or the court on its own motion may order, among other things, the “appointment of a guardian ad litem. What is the role of a guardian ad litem (GAL) in a custody, shared parenting, visitation, or support proceeding? In this custody modification action involving former spouses Fonda Morgan and Daniel Getter, the trial court appointed a GAL to investigate the situation, to file a report summarizing his findings, and to make a recommendation as to the custody issues raised by the parties. Because in its view the GAL was “like [the child's] representative,” the court, however, did not allow the party who disagreed with the GAL's recommendation, Morgan, to cross-examine the GAL as a witness at the custody modification hearing. Ultimately, in accord with the GAL's recommendation, the trial court ruled against Morgan, changing custody to Getter. On Morgan's appeal, the Court of Appeals panel found the trial court's approach to the GAL's role in the proceeding troubling, but because the panel deemed harmless any error that may have arisen from the GAL's conflicting roles as both advisor to the court and representative of the child, it affirmed the trial court's Order without deciding whether an error had occurred.

We granted Morgan's motion for discretionary review to consider her claim that by allowing the GAL to testify, in effect, as to both facts and opinions through his recommendation to the court, but then disallowing Morgan's cross-examination of that testimony, the trial court violated her right to due process of law. We agree with Morgan that the trial court erred by allowing the GAL to serve as both an investigator for the court and an attorney for the child. Although the case has become moot by virtue of the child having turned eighteen years old, we recognize that the proper role of a GAL is a recurring issue of considerable public importance and, as explained more fully below, we exercise our discretion to address that issue in the context of this case.1


By Decree entered in October 2003, the Family Court Division of the Campbell Circuit Court dissolved the marriage of Daniel and Fonda Getter (now Fonda Morgan). The Decree incorporated an agreement between the parties dividing their property and debts and naming Morgan sole custodian of the couple's two daughters, with Getter to have reasonable visitation. The agreement proved workable for a number of years (although Getter amassed a large debt for non-support), but in July 2011 Getter petitioned the family court to modify the custody arrangement. By then Getter had remarried and was living with his wife in Florida, where he worked as a truck driver. Morgan had likewise been remarried (twice), but was again divorced. She continued to reside in Dayton, Kentucky, a community where she and Getter had lived, and where her children attended school. The parties' older daughter, D.G., turned eighteen years old in July 2011 and at about that time moved to Tampa, Florida where she was to attend South Florida University, a college within an hour of Getter's Winter Haven, Florida home. Getter's July 2011 petition for custody of his younger daughter, A.G. (who was then almost sixteen years old), alleged a history of abuse by Morgan.

On August 15, 2011, the trial court appointed a GAL for A.G. by entry of an order stating simply that “a Guardian ad Litem is necessary to help the Court decide the case properly.” In mid-October 2011, the GAL filed his report. It was largely based, according to the GAL, on his interviews with the parties and with A.G., and on his visit to Morgan's residence. For information regarding Getter's Florida residence, the GAL apparently relied on Getter and on A.G. Both parties admitted to the GAL having had altercations with A.G., each described the other's behavior as worse than his or her own, and each accused the other of trying to alienate A.G.'s affections. A.G. told the GAL that she wanted to live near her sister in Florida, and she described a volatile relationship with her mother. The GAL noted that A.G. had thus far been a successful student and appeared to be a highly motivated one. The GAL discounted Morgan's more serious accusations against Getter as belied by her having allowed A.G. to visit him, while also indicating serious concern regarding Morgan's admission that she shared her disparaging allegations about Getter with her daughters. Having considered all of these factors and satisfied that A.G. would continue to do as well in school in Florida as she had done in Kentucky, the GAL saw no reason why A.G.'s desires to be near her sister and away from her mother should not be respected. He recommended therefore, that A.G. should be allowed “the opportunity to live with her father.”

The matter then came before the Campbell County Family Court on November 21, 2011. At the outset of the hearing, the court asked the parties to name the witnesses they expected to call, and Morgan informed the court that she intended to call the GAL to question him about his report. The court advised Morgan that she would not be allowed to call the GAL as a witness, the GAL being “like [A.G.]'s representative.” Morgan would, however, be allowed to challenge the report, in effect, by her questioning of the persons referred to in the report. Insisting that she had a right to question the GAL directly about his opinions and recommendation, Morgan then moved, if that questioning was not to be allowed, to strike the GAL's report. The trial court deferred ruling on that motion, and the hearing proceeded.

In addition to the parties and A.G., who all testified consistently with the GAL's report, the older daughter, D.G., testified that over a span of years she had witnessed a number of heated arguments between Morgan and A.G., the arguments on occasion involving harsh language or even blows. She also testified that Getter had never physically hurt her. One of Morgan's subsequent husbands testified that during his five-or-six-year marriage to Morgan, Morgan had seemed to him a good mother, and that he had never witnessed any physical violence between Morgan and her daughters. Morgan did not attempt to call the GAL as a witness, nor did she renew her motion to strike his report.

By Order entered December 19, 2011, the family court granted Getter's motion to modify the parties' custody of A.G., noting expressly the GAL's recommendation of that result. Finding, moreover, that Getter's establishment of an apparently stable home in Florida, D.G.'s move to a school near him, and A.G.'s experience of a deepening rift between herself and her mother were all material changes in the custodial circumstances, the court concluded that A.G.'s relocation to Florida and residence with Getter “appears to be in the best interest of the child.” Accordingly, the court ruled that “custody of the child is hereby modified to joint custody between the parties, with Petitioner [Getter] being primary residential custodian.” A subsequent order specified in more detail how the parties were to divide parenting time with A.G.

Morgan appealed from the final Order and challenged in particular the trial court's denial of her request to cross-examine the GAL.2 As noted, the Court of Appeals, although sharing the frustration many courts have expressed over the ambiguous role guardians ad litem often play in custody proceedings, concluded that in this case the GAL's contribution had not been decisive and so did not provide Morgan a ground for relief. Morgan then moved this Court for discretionary review, which we granted. Less than two months later, on August 2, 2013, before the parties' briefs had been filed, A.G. turned eighteen years old and thus ceased to be subject to the family court's jurisdiction. The first question we must face, therefore, and the question with which our analysis begins, is whether a case or controversy still exists for this Court to review.

I. Although This Case is Moot, Review is Called For and is Allowed as a Matter of Public Policy.

There is no dispute that, by virtue of A.G.'s age, Morgan's appeal is now moot. As our courts have long recognized, [a] ‘moot case’ is one which seeks to get a judgment ... upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.” Benton v. Clay, 192 Ky. 497, 233 S.W. 1041, 1042 (1921) (citation and internal quotation marks omitted; emphasis in original). Here, even were we to rule in Morgan's favor, the ruling would have no practical legal effect upon her controversy with Getter since the visitation order she seeks to have reconsidered expired when A.G. turned eighteen and can no longer be changed. See Kentucky Revised Statute (KRS) 405.020 (providing in pertinent part that parents retain legal custody of their child until the child turns eighteen years old). The general rule is, and has long been, that “where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed.” Louisville Transit...

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