Rachel SMITH v. David SMITH
NO. 2015-CA-00213-SCT
Supreme Court of Mississippi.
10/13/2016
MAXWELL, JUSTICE, FOR THE COURT
AMANDA JANE PROCTOR, WILLIAM R. WRIGHT, ATTORNEYS FOR APPELLANT. DEAN HOLLEMAN, PATRICK TAYLOR GUILD, ATTORNEYS FOR APPELLEE. BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
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 cus
¶ 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 loca
¶ 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
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)).
¶ 13. Under
¶ 14. When a chancellor chooses to hear the abuse allegation during a custody hearing, appointment of a GAL is mandatory.11 As part of his or her duties, the GAL must either submit a written report or testify, and must make recommendations to the court if requested. McDonald v. McDonald, 39 So. 3d 868, 883 (¶ 49) (Miss. 2010) (quoting D.J.L. v. Bolivar County Dep‘t of Human Servs. ex rel. McDaniel, 824 So. 2d 617, 623 (Miss. 2002)). The GAL is subject to cross-examination if testifying. Id.
B. Appellate Review
¶ 15. Though Rachel had previously contested only the chancellor‘s Albright analysis, where appeals concern the futures or interests of minor children, we have relaxed this general bar. See Gateley v. Gateley, 158 So. 3d 296 (Miss. 2015), and Nat. Father v. United Methodist Children‘s Home, 418 So. 2d 807 (Miss. 1982). We thus address her other claims.
¶ 16. The bulk of the issues Rachel raises deal with the GAL. Rachel insists the chancellor failed to summarize the GAL recommendations and include reasons for rejecting them and failed to properly instruct the GAL on her role and duties. And the GAL did not zealously represent Samantha and Larry and make custody and visitation recommendations.
¶ 17. Aside from the GAL claims, Rachel also suggests the chancellor erred in his Albright analysis, excluded admissible hearsay evidence, and improperly awarded David visitation costs.
I. GAL‘s Report & Recommendations
¶ 18. When appointment of a GAL is mandated by statute—as it is in this case—the chancellor “shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court‘s findings of fact and conclusions of law.” J.P., 987 So. 2d at 982 (¶ 20) (citing S.N.C., 755 So. 2d at 1082). And the GAL “must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination.” McDonald, 39 So. 3d at 883 (¶ 49) (quoting D.J.L., 824 So. 2d at 623). Furthermore, in cases where “the court rejects the recommendations of the guardian,” the chancellor “must” include his or her “reasons for rejecting the guardian‘s recommendations.” J.P., 987 So. 2d at 982 (¶ 20) (citing Floyd, 949 So. 2d at 29); see also Borden, 167 So. 3d at 243 (¶ 13) (citing S.N.C., 755 So. 2d at 1082) (“when a chancellor‘s ruling is contrary to [that] recommendation ... the court must state ‘the reasons for not adopting the ... recommendation ... in the findings of fact and conclusions of law.’ “)
¶ 20. However, the GAL did specifically recommended the chancellor appoint a neutral counselor to assess the children periodically. The chancellor apparently rejected this recommendation without saying why. Though this was error, we find it harmless since it ultimately does not affect custody. It appears the recommendation was made to check, intermittently, on the children, perhaps to see if Rachel was undermining David‘s relationship with them after he was initially granted unsupervised visitation. But regardless of the purpose, years have now passed since the chancellor awarded David custody of both children.12 And this omission alone does not undo the chancellor‘s custody award or warrant remand on a matter that has no bearing on custody.
II. GAL‘s Role, Performance, and Investigation
¶ 21. Rachel next argues the GAL‘s role was not defined and her investigation and report was insufficient. As to Rachel‘s first assertion, this Court has previously “encourage[d] chancellors to set forth the reasons” for appointing guardians in a written order and to explain the particular “role” the GAL is expected to play. S.G. v. D.C., 13 So. 3d 269, 281 (¶ 48) (Miss. 2009). Here there was no written order, and Rachel claims the absence of one was error. We disagree. While this court has encouraged a written order appointing a GAL—and a written order is obviously the best practice—we have never mandated one. Further, there was no confusion over the GAL‘s intended role, particularly from Rachel‘s attorney:
The Court: I think in this case, the attorneys and I basically just acquiesced in she was going to be appointed to look into certain issues, and among them was the question of visitation and et cetera, and that‘s what she sat in on meetings about. If either of you have any other thoughts about what the instructions were for her or should have been, we ought to take that up.
. . . .
Mr. Denham: But in any case, I just think—I think that what happened was there was no court order that was specifically entered; that everybody had an understanding that the guardian ad litem would do in this case what she does probably in 99 percent of the cases she has, and that is investigate the matter, report to The Court, and write a report.
Lacking any obvious disagreement over the GAL‘s role, the mere absence of a written notice of the GAL‘s duties was not material here. We also note that both parties were clearly satisfied with the GAL‘s extensive experience and qualifications. So that is not an issue.
¶ 23. To the extent Rachel tags the GAL with Albright and custody deficiencies, she misses that the GAL was not appointed for a custody recommendation. Rather, the reason the chancellor appointed a GAL was to investigate the sexual-abuse allegations and to secure and coordinate with experts to assess these claims.13 Visitation issues were also to be considered. And the record shows the GAL completed these tasks. She retained and coordinated with experts,14 sifted through the abuse issue, and produced a detailed report—ultimately making visitation recommendations to the chancellor. An abundance of additional information was also before the chancellor, including both forensic interviews, extensive testimony from the parties and witnesses who supervised visitation, and the second interviewer‘s deposition. We thus find there was ample evidence for the chancellor to make a custody decision.
III. Albright Analysis
¶ 24. The foremost consideration in any custody decision is “the best interests and welfare of the minor child.” Albright v. Albright, 437 So. 2d 1003, 1004-05 (Miss. 1983). In Albright, we gave a list of factors15 for chancellors to consider when “navigating” the “labyrinth of interests and emotions” involved in custody battles. Lee v. Lee, 798 So. 2d 1284, 1288 (¶ 15) (Miss. 2001) (citing Albright, 437 So. 2d at 1005). While there is an established list of Albright factors, these factors are not variables in a mathematical formula. Nor is an Albright analysis “premised solely on a scoring system” where findings on each factor are added and later compared to see which parent “wins.” O‘Briant v. O‘Briant, 99 So. 3d 802, 805-06 (Miss. Ct. App. 2012). Rather, the “factors exist to ensure the chancellor considers all the relevant facts” before making a decision. Id. This is why our manifest-error review “is not a mechanical check of the chancellor‘s score card” to decide if he or she “tallied” each parent‘s score correctly.” Id. at 806 (cita-
¶ 25. With these principles in mind, we address Rachel‘s claim that the chancellor‘s custody decision and Albright analysis are flawed.16 Her main grievance is that the chancellor improperly weighed her behavior—and the manner in which she handled the alleged abuse—against her. She also claims he put too much weight on her mental instability. Rachel weaves this argument through several of the Albright findings.17
¶ 26. Though the chancellor found the children‘s sex, age, and health favored neither party, Rachel claims Larry‘s age and health really favored her. When assessing this Albright factor, we point out that “age is only one of several factors to be considered.” Mercier v. Mercier, 717 So. 2d 304, 307 (¶ 14) (Miss. 1998). And over the years, the tender-years doctrine has been diminished and is now only a presumption. Law v. Page, 618 So. 2d 96, 101 (Miss. 1993). The doctrine is “even less binding when the child is male.” Id. While in years past Larry‘s age may have favored Rachel, we see nothing in the record that contradicts the chancellor finding this factor favored neither parent. Nor is there any particular health-related reason that Larry‘s future medical needs favored Rachel.
¶ 27. Considering the continuity of care prior to separation, the chancellor found this factor favored David. While Rachel did largely stay home with Samantha, and later Larry, David would take over childcare duties after work. This included bathing Samantha and caring for her through the night. And when Rachel went back to school and began working as an extern for a therapy center, David handled childcare. The chancellor noted that if Rachel‘s abuse allegations were to be believed, years went by without her reporting it. To him, this negated some of her more positive attributes on this factor. While the evidence is certainly close, we cannot say he chancellor erred in deeming this factor favored David.
¶ 28. As to parenting skills,18 Rachel‘s behavior and judgment drew sharp criticism from the chancellor and also diminished his view of her parenting skills. He believed some of Rachel‘s better parenting skills were overshadowed by her questionable judgment. He was particularly troubled by her placing Samantha in perceived dangerous situations to try and gather evidence of sexual abuse.19 He found this behavior concerning and relevant to this factor. This was a discretionary call on the chancellor‘s part. Because it is substantially supported, we do not second-guess it.
¶ 30. The chancellor also found the physical and mental health of the parents21 favored David. Rachel testified about her paranoid thoughts and feelings. And, as mentioned, the chancellor was concerned with the way Rachel went about attempting to prove the purported abuse. He also felt Rachel pushed her unfounded beliefs on Samantha. Thus, there was factual support for the chancellor deeming Rachel the less mentally fit of the two.
¶ 31. Likewise, the chancellor pointed out in the emotional-ties factor that Rachel‘s conduct prevented David from developing a relationship with Larry. And the chancellor felt the sessions with J. T. Rutland hurt David‘s relationship with Samantha. The record also contradicts Rachel‘s claim that she is not openly hostile toward David. For example, Rachel admitted that her cell phone—the phone Samantha used to talk to David—listed David as “pedophile sociopath” on Caller ID. After review, we find no error in the chancellor believing this factor also favored David.
¶ 32. Finally, considering the home, school, and community factor, Rachel argues the chancellor erred by finding neither child was school-aged. Rachel is correct that this finding was factually inaccurate. While the chancellor was right that Larry was not school-aged, he was wrong about Samantha. She was an eight-year-old second-grader at the time. However, reviewing the full Albright analysis, we can confidently say the erroneous belief Samantha was not school-aged bore no real impact on the chancellor‘s custody decision. The record shows both parties relocated to other communities after separating and each had temporary living arrangements. Samantha had attended her particular school only for a short time, starting when Rachel claimed abuse and moved with the children from Biloxi to Alabama. So the mistake about her school age was harmless.
¶ 33. The bottom line is that our narrow standard of review prevents us from pondering whether we would have sized up the evidence differently. Rather, we must give deference to the chancellor‘s factual findings, asking if they were supported by substantial evidence. See Martin v. Lowery, 912 So. 2d 461, 464 (¶ 7) (Miss. 2005) (citing Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995)). We have long held chancellors have the ultimate discretion to weigh the evidence as they see fit when deciding what is in a particular child‘s best interest. And here, considering the overall Albright analysis, it is clear that Rachel‘s credibility, judgment, and behavior were weighed against her, contributing to the chancellor finding it was in the children‘s best interests that David have custody. We find substantial evidence supports this decision.
IV. Hearsay Evidence
¶ 34. In Hall v. State, 539 So. 2d 1338 (Miss. 1989), this Court addressed
¶ 35. Though it was Rachel who initially brought up the statute, she now claims the chancellor wrongly excluded admissible evidence under
¶ 36. Our review shows that the chancellor‘s evidentiary rulings were actually twofold. At trial, he found Samantha‘s statements to Rutland were not only excluded under
¶ 37. As to Rachel‘s new Rule 803(4) argument—that the statements were admissible for diagnosis and treatment purposes—she did not advance this theory at trial.23 And we refuse to hold the chancellor in error on a matter not presented to him.
V. Visitation Reimbursement
¶ 38. Certain statutory requirements must be met to grant an irreconcilable differences divorce. See Perkins v. Perkins, 787 So. 2d 1256 (Miss. 2001). The parties’ consent is one requirement and “[s]uch consent must be in writing.”
¶ 39. Rachel claims the consent decree did not contemplate David‘s request to recoup payments to Lighthouse for visitation. So, as she sees it, the chancellor could not decide that issue. She also argues the chancellor‘s ordering her to pay David $8,080 impacts a substantial right.
¶ 41. Rachel and David listed expert fees and costs in their consent decree. And the chancellor found the fees charged by Lighthouse Ministries subject to the consent decree. Furthermore, Rachel did not raise this issue in any of her post-judgment motions. Thus, the chancellor did not err in finding the supervision fees subject to the consent decree. Nor did he err in awarding these fees to David.
Conclusion
¶ 42. We affirm the chancellor‘s custody award, exclusion of hearsay evidence, and award of visitation costs to David. While we find the chancellor‘s failure to explain his rejection of the GAL‘s counseling recommendation was error, it was harmless. We affirm.
¶ 43. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING, COLEMAN AND BEAM, JJ., CONCUR.