Lisa M. Paterson Potter v. Scott D. Paterson

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 5, 2014 Session

LISA M. PATERSON POTTER v. SCOTT D. PATERSON

Appeal from the Chancery Court for Johnson County
No. 6182 G. Richard Johnson, Chancellor

No. E2013-01569-COA-R3-CV-FILED-MAY 28, 2014

This post-divorce case involves the application of Supreme Court Rule 40A, which governs
the appointment, role and duties of a guardian ad litem. The guardian ad litem in this case,
Janice Russell, was appointed on November 7, 2008. She filed a motion requesting the court
to hold her ward’s father, appellant Scott D. Paterson (“father”), in contempt. After father
filed a response pointing out that Rule 40A, § 9(a)(4) did not authorize a guardian ad litem
to file a contempt motion, the trial court, in response, entered an order on March 17, 2010,
appointing Ms. Russell “attorney ad litem.” Subsequently, Rule 40A, § 9 was amended to
allow a guardian ad litem to “take any action that may be taken by an attorney representing
a party pursuant to the Rules of Civil Procedure.” After the amendment took effect, Russell
referred to herself in her filings as “guardian ad litem.” The trial court followed suit in its
final order. On January 20, 2011, the trial court entered an order that disposed of all matters
relating to custody of the child. More than a year later, father filed a petition to modify his
child support. On May 16, 2013, the guardian ad litem filed a “motion for emergency
hearing and motion for contempt.” On May 20, 2013, the trial court conducted a hearing,
after which it entered an order holding father in contempt on four counts, sentencing him to
40 days in jail, suspending all of his parenting time, and reducing contact with his daughter
to one telephone call per week. Father appeals. We hold that, pursuant to Supreme Court
Rule 40A, § 5, the guardian ad litem’s appointment terminated when, with the passage of
time, the court’s order disposing of the custody matters became final. Hence, the guardian
ad litem had no authority to file her motion for “emergency hearing” and for contempt. We
reverse the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Perry L. Stout, Mountain City, Tennessee, for the appellant, Scott D. Paterson.

Lisa M. Paterson Potter, Mountain City, Tennessee, appellee, pro se.

Janice A. Russell, Mountain City, Tennessee, Guardian ad Litem for minor, Lauren M.
Paterson.

OPINION

I.

Father and Lisa M. Paterson Potter (“mother”) were divorced by order of a Maryland
court in 2006. They have been litigating ever since over custody, visitation, and support of
their daughter, Lauren. On November 7, 2008, the trial court entered an order finding that
mother’s move from North Carolina to Tennessee was a material and substantial change in
circumstances, but that it was in the child’s best interest to remain in mother’s custody. The
trial court modified father’s visitation in accordance with the permanent parenting plan that
was entered contemporaneously with the order. The order appointed Russell “as the
Guardian ad Litem to serve in the best interests of the minor child.”

On July 9, 2009, father filed a petition to modify child support and the parenting plan,
alleging that he had bought a house in Virginia near the residence of mother and the child
and was thereby able to spend more time with the child, and that his income had significantly
decreased since the entry of the court’s order adopting the parenting plan. On January 27,
2010, the guardian ad litem filed a motion requesting the court to hold father in contempt for
failing on three occasions to timely return the child after his visitation, as required by the
parenting plan. Father filed a response asserting that the guardian ad litem lacked authority
to file a motion for contempt, relying on Supreme Court Rule 40A, § 9(a)(4), which
provided, at that time, as follows:

(a) A guardian ad litem appointed in a custody proceeding is
entitled to:

* * *

(4) attend all legal proceedings in the case, but a guardian ad
litem may not take any action that may be taken only by an
attorney representing a party, including making opening and
closing statements, examining witnesses in court, and engaging

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 in formal discovery pursuant to the Tennessee Rules of Civil
Procedure.

The trial court entered an order on March 17, 2010, stating in pertinent part as
follows:

Tennessee Rules of Civil Procedure [regarding] GAL’s are
insufficient to protect the minor child’s best interest given the
restrictions and limitations on the actions of the Guardian ad
Litem. Therefore, Janice Russell is hereby released and excused
as Guardian ad Litem for the minor child. Instead, Ms. Russell
shall be appointed as Attorney ad Litem for the minor child.

On April 8, 2010, father, acting pro se, filed a “motion for emergency relief” asking the trial
court to modify the parenting plan and decrease his child support. On April 19, 2010, mother
filed a petition requesting that father be held in criminal contempt. The trial court entered
an order on June 24, 2010, stating in pertinent part:

Father has not proven a material and substantial change in
circumstances since the entry of the Permanent Parenting Plan
to allow for modification of the visitation schedule. In addition,
Father has not proven a significant variance in his income to
allow for a modification of his child support. Therefore, any
and all relief requested under any and all pleadings for
modification of visitation and child support is hereby expressly
denied.

* * *

This Honorable Court makes a specific finding that Father is
defiant of authority, fails to follow orders of the court, is
arrogant, confrontational, and believes that this Court’s orders
are subject to change by his will. This Honorable Court finds
Father to be in contempt but hereby takes under advisement
what penalties and sanctions should be issued against Father.

On September 21, 2010, Russell filed two motions wherein she referred to herself as
“Attorney Ad Litem”: (1) a motion “to be allowed in camera review of the psychological
evaluation written reports” of mother, father, and the child; and (2) a motion “to modify the
parenting plan . . . for the express purpose of allowing the minor child to use the cell phone

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that has been provided to her by her father . . . for the purpose of [father’s] two (2) weekly
telephone calls to the minor child.” The trial court granted these two motions by order
entered January 20, 2011.

More than a year later, on February 3, 2012, father, then represented by counsel, filed
a motion to adjust his child support. Several hearings on father’s child support were set in
2012, with the matter being continued each time for various reasons. On March 28, 2013,
the trial court entered an order granting a continuance to allow mother time to hire an
attorney. Russell did not participate in the 2012 child support hearings.

On May 16, 2013, Russell filed a “motion for emergency hearing and motion for
contempt” alleging that father had subjected the child to emotional abuse and medical neglect
and had violated the permanent parenting plan. In her motion, Russell referred to herself as
the “Guardian ad Litem.” Four days later, on May 20, 2013, the trial court heard the guardian
ad litem’s motion. There is no transcript of that hearing. The trial court entered an order on
June 21, 2013,1 holding father in contempt on four counts: (1) “failure to comply with this
Court’s orders about not talking in a negative and/or derogatory manner regarding the child’s
mother”; (2) failure “to comply with and/or follow this Court’s order with regard to parenting
time”; (3) “fail[ure] to obtain emergency medical treatment while the minor child was in his
sole care”; and (4) allowing health insurance coverage for the child to lapse, in violation of
the parenting plan order that required him to maintain such insurance for the child. The trial
court sentenced father to ten days in jail for each instance of contempt. Father has apparently
served the 40 days in jail. Additionally, despite the fact that no one had requested a change
in visitation, the trial court, sua sponte, found and ordered as follows:

The Court finds that the [father] is unfit at this time to have
parenting time with the minor child and does HEREBY
SUSPEND all of [father’s] parenting [time] pending further
Order of this Court. The Court restrains the [father] from
having other individuals contact the minor child on his behalf.
The Court orders that the [father’s] only contact with the minor
child be a telephone call placed to the child’s cell phone on
Tuesday evenings at 8:00 p.m.

1
Ms. Russell argues in her brief that we should not consider father’s challenge to her authority to file
her “emergency” motion. She cites Tenn. R. App. P. 36(a) as authority for her position. Even assuming,
without deciding, that her position, i.e., that father failed to take the necessary action to prevent or nullify
the harmful effect of the entry of the June 21, 2013, order, we would point out that Rule 36(a) only says we
are not requir[ed] to grant relief in such cases. It does not say that we are prevented from doing so. The
issue is too important to ignore. Hence, we have chosen to consider it.

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Father timely filed a notice of appeal.

II.

The dispositive issue on this appeal is whether the guardian ad litem had authority and
standing under Supreme Court Rule 40A to file her motion for emergency hearing and for
contempt. Father raises several other issues in his brief. There is no transcript or statement
of the evidence. We cannot address father’s other issues, all of which pertain to factual
matters, because father has failed to provide a record that allows for meaningful appellate
review. See generally Williams v. Williams, 286 S.W.3d 290, 297 (Tenn. Ct. App. 2008)
(“The party raising an issue on appeal is obligated to give the appellate court a record that
is sufficient for an appropriate review of the issue raised”); Word v. Word, 937 S.W.2d 931,
933 (Tenn. Ct. App. 1996) (“A party raising issues on appeal is responsible for furnishing
the appellate court with a record that will enable that court to reach the issues raised.”). In
any event, these other issues are moot because, as we will show, the guardian ad litem lacked
authority to file the motion because, pursuant to Rule 40A, her appointment had ended.

III.

This appeal requires the interpretation and application of Supreme Court Rule 40A.
“The interpretation of a rule is a question of law, which we review de novo.” Lockett v. Bd.
of Prof’l Responsibility, 380 S.W.3d 19, 25 (Tenn. 2012). “When interpreting the Rules of
the Tennessee Supreme Court, we apply the traditional rules of statutory construction.” Id.
The Supreme Court has stated that “[i]n construing the rules of this Court . . . our goal is to
ascertain and give effect to this Court’s intent in adopting its rules.” Thomas v. Oldfield, 279
S.W.3d 259, 261 (Tenn. 2009).

IV.

The initial appointment of the guardian ad litem occurred on November 7, 2008. At
that time, Supreme Court Rule 40A had not yet been adopted. It was adopted as a
provisional rule on February 17, 2009, effective May 1, 2009 through April 30, 2010;
extended several times; and amended and made permanent effective September 1, 2011. On
January 27, 2010, the guardian ad litem filed her first motion for contempt against father.
At that time, Rule 40A, § 9(a)(4) provided that “a guardian ad litem appointed in a custody
proceeding . . . may not take any action that may be taken only by an attorney representing
a party.” In its order of May 17, 2010, the trial court expressed its dissatisfaction with this
limitation, stating that the rules “are insufficient to protect the minor child’s best interest
given the restrictions and limitations on the actions of the Guardian ad Litem.” The trial

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court “released and excused” Russell as guardian ad litem and appointed her “Attorney ad
Litem for the minor child” instead.

When the trial court made its attorney ad litem appointment, there was no express
authority in Tennessee, by statute, rule, or otherwise, providing for the appointment of an
attorney ad litem in a custody proceeding. Tenn. Code Ann. § 34-1-125 does provide for the
appointment of an attorney ad litem in a conservatorship proceeding.

There are a few appellate opinions that discuss the appointment of an attorney ad litem
in a divorce or custody matter. In Toms v. Toms, 209 S.W.3d 76 (Tenn. Ct. App. 2005), the
Supreme Court granted an interlocutory appeal, and the following occurred:

Shortly after the grant of the interlocutory appeal by the supreme
court, the Guardian ad Litem filed a motion requesting the trial
court to appoint an attorney ad litem to assist the Guardian ad
Litem during the course of the interlocutory appeal. That
motion was granted and attorney Marc E. Reisman was
appointed attorney ad litem for the purpose of representing the
Guardian ad Litem before the Tennessee Supreme Court.

Id., 209 S.W.3d at 78. The Toms Court, addressing the issue of “[w]hether or not an attorney
ad litem may be appointed to represent a guardian ad litem who herself is an attorney,” id.
at 79, stated the following:

It is argued in the appellant brief that there is no statutory
authority under the divorce statutes for the appointment of an
attorney ad litem to represent a guardian ad litem who is also an
attorney.

* * *

[T]he statutes governing divorce do not specifically address the
appointment of an attorney ad litem. The appellant brief cites no
authority to support their argument that the trial court lacked
authority to appoint an attorney ad litem, other than to argue the
lack of statutory authority.

In her treatise, Professor Richards discusses the roles of a
guardian ad litem and an attorney ad litem as follows:

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 In a custody dispute, the attorney representing
each of the competing adults must zealously
represent the interests of that client. The interests
of the adults are not always consistent with the
best interests of the child. The court, however is
empowered to appoint a representative for the
child in the form of a guardian ad litem or an
attorney ad litem. The guardian ad litem may be
an attorney or a specially trained non-lawyer such
as the Court–Appointed Special Advocates
(CASA).2 The role of the guardian ad litem,
whether attorney or non-attorney, should be the
same—to protect the child’s interest and to gather
and present facts for the court’s consideration.
The role of the attorney ad litem, however, should
be that of any other attorney—to represent and
advocate the child’s interests before the court,
including the calling and cross-examining of
witnesses, etc. The guardian ad litem may testify,
the attorney ad litem should not. The guardian ad
litem is guided by the child’s best interest,
irrespective of the child’s wishes; the attorney ad
litem should advocate the wishes of the client,
assuming the child is sufficiently mature to make
such a decision. Unfortunately, Tennessee does
not have a statute that clarifies the different roles
of the guardian ad litem and the attorney ad litem.
Consequently, the roles have been blurred,
especially when an attorney is appointed as a
guardian ad litem.

Janet L. Richards, Richards on Tennessee Family Law § 8–7 (2d
ed. 2004). The respective roles were also addressed by the

2
Under the amended version of Supreme Court Rule 40A currently in effect, “guardian ad litem” is
defined as “a licensed attorney appointed by the court to represent the best interests of a child or children
in a custody proceeding.” Supreme Court Rule 40A, § 1(c) (emphasis added). Thus, at present, a guardian
ad litem appointed by the court must be a licensed attorney. The principles regarding the respective roles
of guardians ad litem vis-a-vis attorneys ad litem, as discussed in Toms, however, remain generally
unchanged.

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 Texas Court of Appeals in City of Houston v. Woods, 138
S.W.3d 574 (Tex. Ct. App. 2004), wherein the court stated:

Guardian[s] ad litem[] and attorney[s] ad litem[]
serve different roles in the representation of
minors. duPont v. Southern Nat’l Bank, 771
F.2d 874, 882 (5th Cir.1985). A guardian ad
litem is not an attorney for the child, but an
officer appointed by the court to assist in properly
protecting the child’s interests. [Jocson v. Crabb,
133 S.W.3d 268, 271 (Tex. 2004); American
Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d
491, 493 n. 2 (Tex. 1995) ]. An attorney ad litem,
on the other hand, performs the same services as
any other attorney – giving advice, doing
research, and conducting litigation. duPont, 771
F.2d at 882.

Id. at 582.

While the motion filed by the guardian ad litem sought to
appoint an attorney ad litem to assist the guardian ad litem
during the course of the appeal, in reality the attorney ad litem’s
function was to serve as the legal advocate for the minor
children. We believe that it was within the discretion of the trial
court to appoint an attorney ad litem and do not find that the trial
court abused its discretion in ordering the appointment.

Toms, 209 S.W.3d at 80-81 (footnote and emphasis added); see also Keisling v. Keisling,
196 S.W.3d 703, 728-29 (Tenn. Ct. App. 2005) (addressing reasonableness of guardian ad
litem’s fee award; citing Richards on Tennessee Family Law for “brief overview of the
differing roles” where first trial judge asked guardian ad litem “to perform the duties of a
guardian ad litem” and second trial judge asked her “to perform the duties of an attorney ad
litem”).

In Andrews v. Andrews, 344 S.W.3d 321, 329 (Tenn. Ct. App. 2010), the trial court
appointed a guardian ad litem in a divorce case involving a custody battle, and then the
following took place:

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 By May 2007, the conflict between Wife and the GAL [guardian
ad litem] had escalated to the point that the GAL filed a motion
for the appointment of an attorney ad litem (“AAL”). The
motion was granted and the trial court entered an order
appointing the AAL. The order, however, had no parameters for
the authority of the AAL or even any description of the AAL’s
role; the order simply stated that the AAL was “appointed for
any purpose.” As things turned out, the AAL advocated and
filed pleadings on behalf of the GAL. When the AAL filed
pleadings, such as discovery requests served on Wife, these
drew objections from Wife, to which the AAL responded with
motions to compel. These exchanges provoked further efforts
by Wife to terminate the GAL, as well as a complaint against the
GAL with the Board of Professional Responsibility. And so on.

(Footnote omitted.) The trial court in Andrews observed that the relationship between the
guardian ad litem and the mother “was so strained that a prior judge found it necessary to
appoint an attorney ad litem to represent the [GAL].” Id. at 334. Regarding the appointment
of the attorney ad litem, the Andrews Court cited with approval the trial court’s
determination that,

The AAL assumed a role not contemplated by the law. There is
no authority for a GAL in a divorce case to have a lawyer
represent her in the trial court. The pleadings filed in this case
clearly show that the AAL, after appointment, represented the
GAL. [The AAL] did not perform the role contemplated for an
AAL and there was no issue in this case that called for an AAL.

Id. at 339 (ellipses in original omitted). The issue in Andrews was, again, the reasonableness
of the fees awarded to the attorney ad litem and the guardian ad litem.

In the present case, we have been cited to no precedent, nor have we found any,
whereby a trial court changed its appointment of the same person from “guardian ad litem”
to “attorney ad litem” in an attempt to circumvent the limitations of a guardian ad litem’s
authority under a Supreme Court rule. At the time of the trial court’s appointment of Russell
as attorney ad litem, Supreme Court Rule 40A provided in pertinent part as follows:

Section 1. Definitions

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(a) “Custody proceeding” means a court proceeding, other than
an abuse or neglect proceeding, in which legal or physical
custody of, access to, or visitation or parenting time with a child
is at issue, including but not limited to divorce, paternity,
domestic violence, contested adoptions, and contested private
guardianship cases.

* * *

(c) “Guardian Ad Litem” means a person appointed to represent
the best interests of a child or children in a custody proceeding.

Section 2. Applicability

This Rule applies to all custody proceedings in Tennessee,
regardless of the court in which the proceedings are filed, and to
all custody proceedings pending on or after the effective date of
this Rule.

Section 3. Guardian ad Litem Appointments

(a) Consistent with Tennessee Code Annotated section
36-4-132, in a custody proceeding the court may appoint a
guardian ad litem when the court finds that the child’s best
interests are not adequately protected by the parties and that
separate representation of the child’s best interests is necessary.
Such an appointment may be made at any stage of the
proceeding.

(b) Courts should not routinely appoint guardians ad litem in
custody proceedings. Rather, the court’s discretion to appoint
guardians ad litem shall be exercised sparingly. In most
instances, the child’s best interests will be adequately protected
by the parties.

* * *

Section 4. Appointment Order

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(a) Appointment of a guardian ad litem shall be by written order
of the court.
(b) In plain language understandable to non-lawyers, the order
shall set forth:
(1) the reasons for the appointment, focusing upon the factors
listed in Section 3(c) of this Rule;
(2) the specific duties to be performed by the guardian ad litem
in the case;
(3) the deadlines for completion of these duties to the extent
appropriate;
(4) the duration of the appointment; and
(5) the terms of compensation consistent with Section 11 of this
Rule.
(c) The court shall provide in the appointment order as much
detail and clarity as possible concerning the guardian ad litem’s
duties. Providing such specificity will assist the parties in
understanding the guardian ad litem’s role and will enable the
court to exercise effective oversight of the guardian ad litem’s
role.

* * *

Section 5. Duration of Appointment

Appointment of a guardian ad litem continues in effect only for
the duration provided in the appointment order or any
subsequent order. If no order specifies the duration of the
appointment, the appointment shall terminate automatically
when the trial court order or judgment disposing of the custody
proceeding becomes final.

Section 6. Role of Guardian ad Litem

(a) The role of the guardian ad litem is to represent the child’s
best interests by gathering facts and presenting facts for the
court’s consideration subject to the Tennessee Rules of
Evidence.
(b) The guardian ad litem shall not function as a special master
for the court or perform any other adjudicative responsibilities.

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 (c) The guardian ad litem shall represent the child’s best
interests and not the child’s wishes or preferences.

(Emphasis added; bold font in original.)

Rule 40A, § 9 was amended and made permanent effective September 1, 2011. The
amended rule provides that “[a] guardian ad litem appointed in a custody proceeding is
entitled to all rights and privileges according [sic] to an attorney representing a party,” and
allows a guardian ad litem to “take any action that may be taken by an attorney representing
a party pursuant to the Rules of Civil Procedure.” After the amendment became effective,
Russell referred to herself in her pleadings, and in her appellate brief, as “guardian ad litem.”
The trial court’s final order also designates her as “guardian ad litem.” Throughout the
course of the proceedings below, there is no indication that either the trial court or Russell
considered her role to be other than the traditional role of a guardian ad litem – to represent
the best interests of the child in a custody proceeding. There is no reason why the child
would have needed an attorney ad litem, as opposed to a guardian ad litem, in this case. The
child was 5 years old at the time of the initial appointment and 7 when the court made its
attorney ad litem appointment. She was too young to be “calling the shots” in a legal
proceeding, but she may have needed an advocate to protect her best interest. Under these
circumstances, we are of the opinion that Supreme Court Rule 40A was continually
applicable to Russell’s appointment.

Neither of the trial court’s appointment orders specified the duration of the
appointment. According to Rule 40A, § 5, “if no order specifies the duration of the
appointment, the appointment shall terminate automatically when the trial court order or
judgment disposing of the custody proceeding becomes final.” (Emphasis added.) In the
present case, the trial court’s order entered on January 20, 2011, fully disposed of any
remaining custody-related issues. Rule 40A, § 1(a) defines “custody proceeding” as “a court
proceeding, other than an abuse or neglect proceeding, in which legal or physical custody of,
access to, or visitation or parenting time with a child is at issue.” Father filed a petition to
decrease his child support payments on February 3, 2012, but his petition raised no issue
bearing on custody, visitation, or parenting time. Furthermore, there is nothing in the record
suggesting that the guardian ad litem participated in the hearings on the child support matter.
On May 16, 2013, nearly 16 months after the trial court’s order disposing of the custody
proceeding, the guardian ad litem filed the “motion for emergency hearing and motion for
contempt” that is central to this appeal. We are of the opinion that the guardian ad litem’s
appointment terminated automatically under Rule 40A, § 5, after the January 20, 2011, order
became final. Consequently, we hold that Russell lacked authority and standing to file her
motion, and that the trial court was in error in hearing it on an “emergency” basis (only four
days later), and in granting the relief sought in the motion.

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 V.

The judgment of the trial court is reversed. Costs on appeal are assessed against
Janice Russell. This case is remanded to the trial court for collection of costs assessed in the
trial court.

_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE

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