Samantha K. Barrett v. Wilton Bryan ( 2023 )

SECOND DIVISION
MERCIER, C. J.,
MILLER, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
December 7, 2023
In the Court of Appeals of Georgia
A23A1644. BARRETT v. BRYAN.
HODGES, Judge.
Samantha Barrett appeals from a trial court order denying her motion to appoint
a guardian ad litem in this domestic relations case. Finding no error, we affirm.
The relevant facts show that in January 2022, Wilton Bryan petitioned to
divorce Barrett. Bryan sought primary physical custody of the couple’s young
daughter. After the trial court entered an interim order awarding joint legal custody,
Barrett moved to have a guardian ad litem appointed. Bryan objected, and the trial
court denied the request on the basis that it did “not see any reason in the Motion
which would justify [Barrett’s] request[.]”
Thereafter, the trial court held a temporary custody hearing. At the beginning
of the hearing, Barrett reiterated her request for a guardian ad litem. The trial court
responded:
Well, I am neither in favor of [the request] nor opposed to [the request],
but I don’t just call in guardian ad litems just [be]cause one party or the
other want it. I first determine if there’s a need for [the guardian] which
is what I will do through this hearing and then if I think I need [the
guardian] . . . then I’ll order it, but I don’t . . . let the attorneys drive the
bus on a guardian ad litem.
Both parties testified during the hearing regarding their troubled marriage and mental
health issues. At the end of the hearing, the trial court concluded that both Barrett and
Bryan had “some mental health issues,” but that Bryan’s issues were situational
whereas Barrett’s were chronic. The court specifically called into question Barrett’s
judgment and decision-making. The court awarded Bryan primary physical custody
and Barrett visitation pending the final decree. Barrett then renewed her request for
the appointment of a guardian ad litem, and the court responded, “I just don’t see
where this is a case where these parties, either one of them, need to spend the money
on it. I just don’t see, I don’t see the need for it.”
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In February 2023, the trial court entered the final divorce decree, which
awarded primary physical custody to Bryan. Barrett sought leave to appeal the trial
court’s guardian ad litem ruling, asserting that the trial court abused its discretion in
refusing to appoint a guardian. We granted Barrett’s application for discretionary
appeal, Barrett v. Bryan, Case No. A23D0263 (granted March 27, 2023), and this
appeal followed.
1. The appointment of a guardian ad litem in a domestic relations case is
governed by Uniform Superior Court Rule 24.9 (1), which provides:
The Guardian ad Litem (“GAL”) is appointed to assist in a domestic
relations case by the superior court judge assigned to hear that particular
case, or otherwise having the responsibility to hear such case. The
appointing judge has the discretion to appoint any person as a GAL so
long as the person so selected has been trained as a GAL or is otherwise
familiar with the role, duties, and responsibilities as determined by the
judge. The GAL may be selected through an intermediary.
There appear to be no cases discussing the extent to which a party is entitled to a
guardian ad litem under this rule. However, Barrett does not assert in her appellate
brief that the rule requires a trial court to appoint a guardian ad litem. Indeed, the main
case upon which Barrett relies is Padilla v. Melendez, 228 Ga. App. 460, 462-463 (2)
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(491 SE2d 905) (1997), which specifically recognized a trial court’s discretion in
appointing a guardian ad litem in a domestic relations case, and Barrett acknowledges
that “this Court should review the trial court’s ruling on an ‘abuse of discretion’
standard.” That being said, because this Court has not addressed a trial court’s
obligation under Uniform Superior Court Rule 24.9 and because Padilla and another
1997 case addressing a similar issue1 both relied on OCGA § 29-4-7,2 which was
repealed in 2005,3 we take this opportunity to re-emphasize a trial court’s duty with
respect to appointing a guardian ad litem in a domestic relations case.
It is well settled that
[w]hen child custody is an issue between parents, the trial court has very
broad discretion, looking always to the best interest of the child. When
the trial court has exercised that discretion, this court will not interfere
1
Dee v. Sweet, 224 Ga. App. 285, 287-288 (1) (480 SE2d 316) (1997) (construing
former OCGA § 29-4-7 to conclude that trial court did not abuse its discretion in
refusing to appoint a guardian ad litem where the evidence failed to demonstrate that
the parent’s interests were adverse to those of her children).
2
OCGA § 29-4-7 provided that “[w]hen a minor is interested in any litigation
pending in any court in this state and he has no guardian or his interest is adverse to
that of his guardian, such court may appoint a guardian ad litem for the minor. . . .”
(Emphasis supplied.)
3
See Ga. L. 2004, p. 161, § 1.
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unless the evidence shows a clear abuse of discretion, and where there is
any evidence to support the trial court’s finding, this court will not find
there was an abuse of discretion.
(Citation and punctuation omitted.) Terrell v. Terrell, 294 Ga. 208, 210 (751 SE2d 415)
(2013). We conclude that this standard applies to a trial court’s decision whether to
appoint a guardian ad litem for the child under Uniform Superior Court Rule 24.9.
Notwithstanding the fact that OCGA § 29-4-7 was repealed, we reiterate that the
responsibility of the trial court in determining whether to appoint a guardian ad litem
for the child is to consider the best interest of the child — including indications of
potential danger to such child and whether the interests of the child are likely to be
adequately protected by its natural guardian. See Terrell, 294 Ga. at 210; Padilla, 228
Ga. App. at 463 (2). Once a trial court has exercised its discretion to consider these
factors, the court may appoint a guardian ad litem under Uniform Superior Court Rule
24.9, but the court is not required to do so. The trial court is merely required to
exercise its discretion in determining whether a guardian ad litem should be
appointed, and our review of that decision is under an abuse of discretion standard.
See Terrell, 294 Ga. at 210; see also Padilla, 228 Ga. App. at 462-463 (2) (noting that
trial court failed to properly exercise its discretion when it summarily denied a request
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for a guardian ad litem without hearing evidence or arguments). This conclusion is
consistent with our former law as well as current law addressing the appointment of
a guardian ad litem in domestic relations cases involving adoptions. See OCGA § 19-8-
17 (c) (“If at any time it appears to the court that the interests of the child may conflict
with those of any petitioner, the court may, in its discretion, appoint a guardian ad litem
to represent the child and the cost thereof shall be a charge upon the funds of the
county.”) (emphasis supplied).
Turning to the merits of Barrett’s claims, we find that the trial court properly
exercised its discretion in determining that a guardian ad litem was not necessary in
the present action.
2. In her first enumeration of error, Barrett asserts that the trial court abused
its discretion in refusing to appoint a guardian ad litem “in the face of recent,
uncontroverted evidence of [Bryan’s] compromised mental health which could have
resulted in serious harm to the parties’ then-four-year-old child.” However, in the
argument section of her appellate brief regarding this enumeration, Barrett never
mentions the appointment of a guardian. Instead, she appears to assert that the
evidence was insufficient to support the trial court’s award of physical custody to
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Bryan. Because Barrett did not raise a sufficiency argument in her enumeration of
error or her application for discretionary appeal, this enumeration presents nothing
for our review. See Cousin v. Tubbs, 358 Ga. App. 722, 726 (2) (856 SE2d 56) (2021)
(“[E]numerations may not be enlarged by brief on appeal to cover issues not
contained in the original enumeration.”) (citation and punctuation omitted); see also
Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013) (“The issues on appeal
are limited by the errors enumerated in the application for discretionary appeal.”)
(citation and punctuation omitted).
To the extent that Barrett’s argument may be generously construed as asserting
that a guardian ad litem appointment was required given the factual circumstances in
this case, we find no merit in this argument. Here, the trial court stated that it would
determine the need for a guardian ad litem appointment after hearing the evidence
during the temporary hearing. Once both parties testified regarding their troubled
marriage and mental health issues, the court exercised its discretion and determined
that a guardian ad litem was not needed. Barrett has not met her burden of
demonstrating error through her brief, generalized statements that the trial court
abused its discretion in so finding. See Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d
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24) (2014) (“It is [the appellant]’s burden, as the party challenging the ruling below,
to affirmatively show error from the record on appeal.”); Terrell, 294 Ga. at 210.
3. In related enumerations of error, both of which rely on Padilla, Barrett argues
that the trial court erred in refusing to appoint a guardian ad litem based on the
monetary cost to the parties and its declaration that the court was “the sole authority
on child custody.” While the trial court did mention, following the temporary hearing,
that it did not see the need for either party to “spend the money on” a guardian ad
litem and that the court would be “making the custody evaluations and . . . not
pawning that off on any guardian ad litem,” we do not read the trial court’s statements
as inappropriate or as the court’s sole reasons for refusing Barrett’s request for a
guardian ad litem.
First of all, the record does not support Barrett’s statement in her appellate
brief that “[t]he only reason provided by the trial court for its three separate denials
of [her] three separate requests was the financial costs to the parties.” To the
contrary, the trial court’s initial order denying Barrett’s request for a guardian ad
litem noted only that Barrett failed to include any reasons in her motion justifying the
request. The order did not mention any financial costs to the parties. Thereafter, prior
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to the temporary hearing, Barrett renewed her motion, and the trial judge openly
stated that he would determine after the hearing if he believed a guardian ad litem was
necessary. Again, the trial court never mentioned any financial costs to the parties.
Then, following the hearing, the trial judge stated that he did not “see the need” for
a guardian: “I just don’t see where this is a case where these parties, either one of
them, need to spend the money on it. I just don’t see, I don’t see the need for it.”
While the trial court mentioned financial costs to the parties at this point, there is no
indication in the record that cost was the court’s sole driving force, as opposed to one
factor, behind its refusal to appoint a guardian.
Second, Barrett also misconstrues the trial court’s statement regarding custody
evaluations. Barrett states in her appellate brief that the trial court “declar[ed] itself
the sole authority on child custody and, apparently, the mental health of the parties.”
The transcript does not support Barrett’s statement. Following the temporary
hearing, Barrett’s counsel asked about a custody evaluation with Dr. Tillitski in
Macon, to which the trial judge responded: “I have a lot of respect for Dr. Tillitski,
but this Court is making the custody evaluations and I’m not pawning that off on any
guardian ad litem, any psychiatrist, anybody else[.]” The trial judge did not indicate
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that he would “fulfill the role of a guardian ad litem,” as argued by Barrett. Rather,
the trial court was simply reminding the parties that it is the court’s duty to make the
ultimate custody determination in the case. See Weaver v. Weaver, 238 Ga. 101, 103
(2) (230 SE2d 886) (1976) (concluding that it is the duty of the court to make a
custody determination in the best interests of the children), superceded by statute on
other grounds, Davidson v. Davidson, 243 Ga. 848, 849 (1) (257 SE2d 269) (1979); Pate
v. Sadlock, 345 Ga. App. 591, 597 (3) (814 SE2d 760) (2018) (holding that a court
cannot delegate decisions regarding custody or visitation to an expert).
Barrett has not met her burden of demonstrating that the trial court abused its
discretion in refusing to appoint a guardian ad litem on these grounds. See Tolbert, 296
Ga. at 363 (3); Terrell, 294 Ga. at 210. Here, unlike in Padilla, the trial court exercised
discretion in denying Barrett’s request for a guardian ad litem. 228 Ga. App. at 462-
463 (2). The trial court said it would decide whether a guardian was needed after
hearing evidence at the custody hearing, and, after hearing that evidence, the court
determined a guardian ad litem was not needed. Under these circumstances, it cannot
be said that the trial court abused its discretion. See, e.g., Eagle Jets, LLC v. Atlanta
Jet, Inc., 347 Ga. App. 567, 576 (2) (c) (820 SE2d 197) (2018) (“An abuse of
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discretion occurs where a ruling is unsupported by any evidence of record or where
that ruling misstates or misapplies the relevant law.”) (citation and punctuation
omitted). The ruling of the trial court is affirmed.4
Judgment affirmed. Mercier, C. J., and Miller, P. J., concur.
4
Bryan’s motion for attorney’s fees and expenses of litigation for a frivolous
appeal, however, is denied.
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