Richmond v. Tecklenberg

396 S.E.2d 111, 302 S.C. 331

• Court: Court of Appeals of South Carolina
• Decided: August 22, 1990
• Docket: 1478
• Status: Published

Opinions

Gardner, Judge:

The trial judge, in this case, awarded custody of Paula Tecklenberg, aged six at the time, to her father, John Tecklenberg. During the trial of the case, the guardian ad litem (GAL) testified, over objection, that in her opinion custody should be awarded to the father and her report was admitted, over objection, into evidence. The report recommended awarding Paula’s custody to her father. The objection to both the testimony and the report was that the opinion expressed therein was based on hearsay and that her opinion concerned the ultimate issue before the court. We affirm.

ISSUE

The only issue of merit is whether the trial judge erred in allowing the GAL, over objection, to give her opinion as to whom custody should be awarded and in receiving, over objection, the written report of the GAL recommending that custody be awarded to the father.

Additionally, the guardian ad litem’s attorney moved to increase her hourly fee from that previously agreed upon.

We have carefully reviewed the record before us and affirm the award of custody to the father, with its liberal provisions for visitation by Dr. Gayle S. Richmond (the mother).

FACTS

The parties agreed in writing to the appointment of Jania Sommers as GAL for Paula. Ms. Sommers employed as her attorney Ms. Shirrese E. Brown, who agreed to work for $50 per hour. Ms. Sommers has a B.S. Degree in Anthropology and Sociology. She has done graduate work but has not received a post-graduate degree. She has worked as a social worker, headed up a state-wide project concerning adult and juvenile handicapped offenders, and presently heads up the volunteer guardian ad litem program in Charleston, South Carolina. She has trained and supervised a significant number of persons to act as guardians ad litem in cases such as this and also child abuse cases. The trial judge, over the objections stated, ruled that Ms. Sommers was not an expert but allowed her to state her opinion as to whom custody should be awarded “based on her experience as a human being who has investigated this case.”

There was much conflict about the admission of this evidence. Ms. Sommers reviewed in detail her investigation of the case and thereafter counsel for the mother objected again, the essence of the objection being that her opinion was based on hearsay and dealt with the ultimate issue to be decided by the court. Her attorney argued that the order appointing the GAL did not authorize a recommendation to the court and argued that it was not the normal function of a GAL to make a recommendation to the court.

DISCUSSION

I.

The general rule is that opinion testimony which is determinative of the ultimate fact in issue should be excluded as an invasion of the province of the factfinder. State v. Moorer, 241 S.C. 487, 129 S.E. (2d) 330 (1963). This rule, however, is not inflexible. Whether a family court judge should admit the opinion of a duly appointed guardian ad litem or social worker for advisory purposes is within the discretion of the family court judge, provided that full right of cross-examination is afforded. And we so hold.

We hold that the trial judge in this case did not err in overruling the objections to Ms. Sommers’ testimony and the admission of her report. The record reflects that the GAL interviewed 41 witnesses; about 20 of whom testified. The names of all the persons interviewed by the GAL were made available to counsel. Each could have been deposed by counsel for the mother. Of course, full right of cross-examination of the testifying witnesses was afforded. We find no error and so hold.

In the case of West v. West, 208 S.C. 1, 36 S.E. (2d) 856 (1946), the Supreme Court appointed a guardian ad litem to represent a minor and the order itself provided that the GAL “be appointed as guardian ad litem for the said infant and make her return and recommendation to this Court as to the best interest of the infant____”

The Supreme Court in the case of Crowe v. Lowe, 256 S.C. 321, 182 S.E. (2d) 310 (1971) impliedly accepted the proposition that the opinion and recommendation of a GAL or social worker might be accepted into evidence provided full right of cross-examination is afforded in order to insure due process. This court in the case of Collins v. Collins, 283 S.C. 526, 324 S.E. (2d) 82 (Ct. App. 1984), impliedly recognized the principie that a GAL might express an opinion as to the ultimate issue involved provided full right of cross-examination is permitted.

II.

The guardian ad litem’s attorney agreed in the first instance to work for $50 per hour. We deny her motion to increase her hourly fee for appeal purposes.

CONCLUSION

For the above reasons, the appealed order is affirmed.

Affirmed.

Bell and Cureton, JJ., concur.