Jennifer Carter v. Josh Carter

204 So. 3d 803, 2015 WL 5813572, 2015 Miss. App. LEXIS 687
CourtCourt of Appeals of Mississippi
DecidedOctober 6, 2015
Docket2014-CA-00041-COA
StatusPublished
Cited by2 cases

This text of 204 So. 3d 803 (Jennifer Carter v. Josh Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jennifer Carter v. Josh Carter, 204 So. 3d 803, 2015 WL 5813572, 2015 Miss. App. LEXIS 687 (Mich. Ct. App. 2015).

Opinions

FAIR, J., for the Court:

¶ 1. The Rankin County Chancery Court granted Josh Carter’s petition to modify the custody of his six-year-old daughter, Delaney, who had been in the care of her mother, Jennifer. On appeal, Jennifer asserts a single error. She contends that the chancery court erred in not appointing a guardian ad litem, sua sponte, to investigate what she argues were Josh’s allegations of neglect. We find that the allegations were either not severe enough to require investigation or were adequately investigated by an agent of the court who acted as a guardian ad litem in all but name. We affirm.

DISCUSSION

¶2. Josh and Jennifer Carter divorced in Rankin County in 2011, and Jennifer got custody of Delaney. After the divorce, Jennifer changed jobs and moved several times, ending up living near her mother near Lumberton, Mississippi, about two hours south of the Carters’ original home.

¶ 3. In May 2012, Josh filed a complaint for modification which alleged, without specificity, that there had been a material change in circumstances that had adversely impacted Delaney, tracking the language of the legal standard for custody modification. See, e.g., A.M.L. v. J.W.L., 98 So.3d 1001, 1015-16 (¶ 35) (Miss.2012). As the litigation progressed, two bases for the finding of a material change in circumstances emerged: the condition of Jennifer’s residence, and Delaney’s health issues and care while in Jennifer’s custody.

¶4. About six months after filing his complaint for modification, Josh filed a “Request for Inspection” of Jennifer’s home, pursuant to Mississippi Rule of Civil Procedure 34. No basis for the request was stated on the motion’s face, and, although it appears to have been heard before the chancery court, the hearing on the motion was not transcribed or its substance otherwise made a part of the record on appeal. Following the hearing, the chancellor found that it would not be appropriate for Josh or his attorney to in[805]*805spect Jennifer’s property. Instead, he entered an order1 appointing Heather M. Aby, an attorney, to inspect Jennifer’s home and submit a report to the court.

¶5. Aby prepared what she styled a “Report of Guardian Ad Litem” detailing her findings. She found that Jennifer and Delaney were residing in a one-bedroom mobile home that had been previously used by an auto repair shop. The building was “structurally unsound and in a state of disrepair.” In one place, the roof had been covered with a tarp, which was held down by an old tire. The inside was cluttered and bore stains from water intrusion, accompanied by what looked like mold. The yard surrounding the building was overgrown and littered with garbage, including old furniture and appliances, as well as a rusted metal fan .lying in high grass that Aby thought would be dangerous to a small child. Aby also inspected a building that was under construction on the property, which Jennifer called a “cabin” and her future home—Aby characterized it as a utility building or shed that was being half-heartedly converted into a residence, and she expressed concern that it could be a fire hazard because there was only one entry door (though it did fiave several small windows). Aby concluded that Jennifer’s home was “generally not safe for .a minor child,” and she recommended that it was not in Delaney’s best interest to live in either the mobile home or the cabin.

¶ 6. Aby testified at trial, and her report and accompanying photographs were introduced into evidence. The chancellor largely agreed with Aby’s report and recommendation, finding Jennifer’s home to be “shocking,” “squalid,” and “dangerous.”

¶ 7. Neither party ever asked the chancery court to appoint a guardian ad litem. Jennifer’s sole issue on appeal is her contention that the chancellor erred by not sua sponte- ordering the appointment of a guardian ad litem following Aby’s testimony regarding her home, which Jennifer contends amounted to an allegation she had neglected Delaney.

¶ 8. Josh argues that .this issue has been waived. He asserts that, at some point, the chancellor raised the issue of whether a guardian ad litem should be formally appointed, ■ and both parties agreed it was ■ unnecessary. But if this occurred, it was not transcribed or otherwise made a part of the record; and this Court cannot credit assertions in briefs in the absence of support in the record. Yancey v. Yancey, 752 So.2d 1006, 1012 (¶ 20) (Miss.1999).

¶ 9. Ordinarily, the decision of whether to appoint a guardian ad litem is entrusted to the sound discretion of the chancellor. Scroggins v. Riley, 758 So.2d 467, 472 (¶ 19) (Miss.Ct.App.2000). But when there are allegations of abuse or neglect in a custody dispute, the Mississippi Supreme Court has held that Mississippi law requires the chancery court to appoint a guardian ad litem to investigate the allegations. Floyd v. Floyd, 949 So.2d 26, 28 (¶ 7) (Miss.1995) (citing Miss.Code Ann. § 93-5-23 (Supp.2006)).

¶ 10. Neither Aby nor Josh expressly accused Jennifer of neglecting Delaney. Jennifer testified, without objection, that her home had been investigated by the Mississippi Department of Human Services and that the case had been closed. From the transcript, it appears that records from the Lamar County DHS may have been sent to the chancellor prior to the trial on the modification action, but, at [806]*806the beginning of the modification trial, the chancellor stated he had not yet opened what he had received. A discussion then apparently occurred off the record, and whatever records had been sent were never mentioned again on the record. The DHS records were not cited by the chancellor in his findings of fact, used by either party at trial, or otherwise made part of the record on appeal.

¶ 11. Assuming for the sake of argument that Aby’s testimony amounted to an allegation of neglect, we still find that no error occurred. Undoubtedly, Aby’s appointment was irregular and her instructions somewhat unclear. Her appointment was purportedly pursuant to Mississippi Rule of Civil Procedure 34, which allows inspection of property by a party or his attorney. The order, although reciting that the court found it inappropriate for Josh or his attorney to inspect Jennifer’s property, refers to Aby’s assignment as a “Rule 34 inspection” and required Josh to pay Aby’s fee. From this, Jennifer asserts that Aby “could easily be viewed” as Josh’s proxy or agent. But Jennifer does not actually make that argument—Aby, the parties, and the court all seem to have understood Aby to have been assigned to act as a neutral, investigative agent for the court; and at no point does she appear to have acted as Josh’s agent or advocate. Aby was ordered to report to the court, and she, initially at least, appears to have understood her assignment to be that of a guardian ad litem, as that was how she styled her report. At the modification hearing, the chancellor initially referred to Aby as a guardian ad litem before backing off that label to call her “an observer, basically, or someone to make a report.” The chancellor also recalled that Aby “was not formally appointed as an arm of the Court except for the limited issue of performing, I think, an inspection.”

¶ 12. Jennifer does not argue that a guardian ad litem should have been appointed to simply rehash the investigation undertaken by Aby.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jennifer Carter v. Josh Carter
204 So. 3d 747 (Mississippi Supreme Court, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
204 So. 3d 803, 2015 WL 5813572, 2015 Miss. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennifer-carter-v-josh-carter-missctapp-2015.