Smith v. Smith, NO. 2015-CA-00213-SCT

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: MAXWELL, JUSTICE, FOR THE COURT
• Citation: 206 So.3d 502
• Docket Number: NO. 2015-CA-00213-SCT
• Decision Date: 13 October 2016
• Parties: Rachel SMITH v. David SMITH

206 So.3d 502

Rachel SMITH
v.
David SMITH

NO. 2015-CA-00213-SCT

Supreme Court of Mississippi.

October 13, 2016

AMANDA JANE PROCTOR WILLIAM R. WRIGHT, ATTORNEYS FOR APPELLANT.

DEAN HOLLEMANPATRICK TAYLOR GUILD, ATTORNEYS FOR APPELLEE.

BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. When sexual-abuse allegations are raised in a child-custody case, a guardian ad litem ("GAL") must be appointed to represent the child's best interest. Here, the appointed GAL made visitation recommendations but was not asked to make a custody recommendation. The chancellor addressed this issue on his own. We find the fact the chancellor made an independent custody assessment is not, itself, error. Furthermore, after review, we find no error in the chancellor's ultimate custody decision, evidentiary rulings, and award of costs to the husband. We do, however, find the chancellor should have explained why he rejected the GAL's recommendation¹ that the minor children be assessed and counseled. But we find this omission was harmless error and does not require reversal. We affirm.²

Background Facts and Procedural History

I. Custody & Guardian Ad Litem

¶ 2. Rachel and David married on March 13, 2004.³ The couple had two children—a daughter, Samantha, and a son, Larry.⁴ On August 8, 2011, at Rachel's request, the couple met with a counselor in Hattiesburg. During the meeting, Rachel accused David of molesting their daughter. The Harrison County Department of Human Services ("DHS") and the Biloxi Police Department investigated the alleged abuse. As part of the investigation, the South Central Mississippi Child Advocacy Center conducted a forensic interview of Samantha. During this interview, Samantha made no mention of abuse. And ultimately, neither DHS nor the Biloxi police sought criminal charges or youth-court action against David.

¶ 3. Still, Rachel filed her complaint for divorce from David on August 31, 2011, and she continued to claim he had sexually abused their daughter. The chancellor entered a temporary order on December 16, 2011, granting sole legal and physical custody

206 So.3d 508

to Rachel and supervised visitation to David, and appointed a guardian ad litem. The court noted an order assigning the GAL's duties would follow. More than a year later, the chancellor entered a new temporary order, instructing the GAL to secure and/or coordinate with expert witnesses to assess the validity of Rachel's sexual-abuse allegations.

¶ 4. The court appointed a forensic interviewer to conduct a second interview of Samantha. During this second interview, Samantha claimed David had "touched her private spots."⁵ David continued his supervised visitation with Samantha and Larry. And eventually, on June 10, 2013, the parties filed a consent decree to divorce on grounds of irreconcilable differences. Aside from the usual financial matters, the parties' consent decree asked the chancellor to decide: (1) custody of Samantha and Larry, (2) visitation, and (3) whether facts existed to require supervised visitation. At a December 4, 2013 hearing, the chancellor explained that he believed "suggestive techniques were involved in eliciting the statements from the child." He also felt Samantha had been "inadvertently or deliberately ... clearly coached." During the same hearing, the chancellor expressed concerns about Rachel's stability, particularly that she admitted using Samantha as bait to try and catch David abusing her.⁶

¶ 5. The chancellor found no validity to the abuse allegations. So he modified custody, giving Rachel and David temporary, joint legal custody of Samantha and Larry, with Rachel having temporary, primary physical custody. Thus, David was no longer required to have supervised visitation.

¶ 6. Rachel's attorney asked the chancellor that, before he enter his final judgment, he instruct the GAL to file a written report—which she did on July 17, 2014. The report recounted interviews, the evidence presented at trial, and completed tasks. It also included the GAL's recommendations to the court. The GAL recommended David continue his unsupervised visitation with Samantha and Larry. She also recommended a neutral counselor be assigned to periodically assess the children. The GAL had not been requested to make a custody recommendation, nor did she make one.

¶ 7. The chancellor's final judgment awarded David primary physical and legal custody of Samantha, with a visitation schedule for Rachel. But it made no mention of the GAL's specific recommendation that the minor children receive counseling. On appeal, Rachel claims numerous deficiencies with the GAL's duties and report. She also takes issue with the chancellor's Albright⁷ analysis.

II. Evidence of Alleged Abuse

¶ 8. Rachel first raised the sexual abuse allegations in August 2011. Testimony supporting these allegations comes from four sources—(1) Rachel, (2) Rachel's mother, Paula, (3) a counselor named J. T. Rutland, and (4) the second forensic interview. But the chancellor was skeptical of much of the abuse testimony. The chancellor was particularly concerned with J. T. Rutland's involvement and testimony.

¶ 9. When the chancellor initially granted David supervised visitation, he ordered Lighthouse Ministries serve as the location

206 So.3d 509

for supervised visits. And from December 2011 until December 2012, J. T. Rutland, a counselor with Lighthouse Ministries, supervised most visits. In addition to supervising David's visits, Rutland also conducted weekly sessions with Samantha.⁸ Rutland testified that these weekly sessions were to "listen and communicate" with Samantha. According to Rutland, during these visits Samantha made statements and drawings, indicating David had sexually abused her. Rachel filed a notice of her intent to introduce Samantha's statements from these sessions. Her notice cited Mississippi Rule of Evidence 803(25) and Mississippi Code Section 13–1–403 as authority for their admission.

¶ 10. At trial, Rutland tried to testify about Samantha's purported abuse revelations and about the drawings, but David objected. He claimed he lacked sufficient notice of certain statements—particularly the drawings—under Mississippi Code Section 13–1–403(2).⁹ Though the chancellor sustained David's objection and excluded the drawings and some of Samantha's statements, Rutland was permitted to testify about the properly noticed statements. However, the chancellor waited to rule on their admissibility until after Rutland had finished testifying. At the December 4, 2013 hearing, the chancellor found Samantha's statements to Rutland were unreliable. The chancellor also found the relationship between Rachel and J. T. Rutland highly suspect. Specifically, the chancellor found Rutland's weekly sessions with Samantha were illogical, since they were neither aimed to disclose abuse nor to rehabilitate Samantha. The chancellor held that Samantha's statements did not meet the required indicia of reliability under Mississippi Rule of Evidence 803(25). And he excluded all of Samantha's drawings and statements to Rutland. On appeal, Rachel contends the chancellor erred in applying Mississippi Code Section 13–1–403(2) and not considering all of Samantha's statements under the hearsay exceptions in Mississippi Rules of Evidence 803(4) or 803(25).

III. Reimbursement for Visitation

¶ 11. David's supervised visits to Lighthouse Ministries cost $150 per Saturday visit. The chancellor ordered David to pay the visitation costs. These visits began in December 2011 and continued until December 2012—when Lighthouse Ministries ended supervision services and the chancellor ordered additional supervisors for visitation. In his final judgment, the chancellor ordered Rachel to reimburse David the $8,080 he had paid to Lighthouse. Though Rachel did not contest the reimbursement in her post-judgment motions, on appeal she does. She now insists David did not seek reimbursement nor was reimbursement contemplated in the consent decree.

Analysis

¶ 12. "The standard of review in child custody cases is limited." Borden , 167 So.3d at 241 (¶ 4) (citing Floyd v. Floyd , 949 So.2d 26, 28 (Miss. 2007) ). If it is supported by substantial evidence, we must affirm a chancellor's factual findings unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Id. (citing Robinson v. Lanford , 841 So.2d 1119, 1122 (Miss. 2003) ).

206 So.3d 510

A. Abuse Allegations

¶ 13. Under Mississippi Code Section 93–5–23, a chancellor has two options for handling abuse allegations lodged during a custody proceeding. The chancellor may either (1) stay the proceeding until the allegations are fully investigated by DHS or (2) adjudicate the abuse allegations subject to Mississippi Code Sections 43–21–121 and 151 and the Mississippi Uniform Rules of Youth Court Practice.¹⁰ Here, the chancellor opted for the second approach.

¶ 14. When a chancellor chooses to hear the abuse allegation during a...