Tracy v. Dennie

PAUL E. DANIELSON, Justice. | Appellant Grady Tracy appeals from the order of the Saline County Circuit Court awarding custody of the parties’ minor child, M.T., to appellee Theresa Den-nie. His sole point on appeal is that the circuit court erred in its admission of the attorney ad litem’s report. We affirm the circuit court’s order. The instant appeal arises from a paternity action, filed December 22, 2009, by Ms. Dennie. In it, she contended that Mr. Tracy was the natural father of M.T. and requested custody of the child, with Mr. Tracy having visitation. She also sought child support, both retroactive and future. Mr. Tracy answered the petition, admitting that he was the child’s natural father, and counterclaimed for a finding of paternity and custody. On January 14, 2010, Mr. Tracy filed his motion for the appointment of an attorney ad litem “to facilitate the case at hand and to further protect the rights of the child.” The | ^circuit court granted the motion and appointed Sherry Burnett as M.T.’s attorney ad litem. Just prior to the final hearing in the matter, during an in-chambers conference, Mr. Tracy objected to the circuit court’s receipt of the ad litem’s written report. Subsequent to that conference, the circuit court brought up Mr. Tracy’s objection at the hearing. The following colloquy then took place: CIRCUIT COURT: The primary issue we discussed in chambers is the appropriateness of the Court receiving a written report from the ad litem. [Mr. Tracy] objected to my receiving and reviewing the report prior to— prior to having a hearing, and we discussed the matter of Administrative Rule 15, issues related to [an] ad litem’s responsibilities in a custody case. And there was — I think everybody agrees there’s no controlling case law on point in Arkansas or anywhere else that I know, other than — I guess that would be controlling because, potentially, there could be a United States Supreme Court case on it, but there is not as far as we know. I have reviewed the Rule. There is — it is open to interpretation. I interpret it to mean that the ad litem shall — has obviously the regular attorney responsibilities, duties, and privileges, but also has — has—is required by the Rule to act additionally as an investigator, as an advocate, not only for the child’s best interest, but also— well, not for what the child wants, but also what is in the child’s best interest, which may be different, and is directed by this Rule to make recommendations to the Court for services and also to make recommendations whether or not the child agrees with that, and including going beyond privilege. I say all of that to — I’m going to try to sum that up more specifically than that. If the attorney ad litem was merely required to be an aggressive advocate for the child, then the Rule would not be necessary because every attorney is required to do that once they become an attorney, once they’re appointed to be an attorney for a person or to act as an attorney for a person; they are supposed to be an aggressive advocate. If that’s all that the ad litem is supposed to do, then there would be no need to have the Administrative Rule given all of these additional things and responsibilities that go beyond the ordinary Lattorney/client relationship. Therefore, based on that and also on my knowledge from being in private practice and also as a judge that it is common practice in Arkansas for attorneys ad litem to submit written recommendations, including findings of fact which ordinarily might be considered hearsay, then I have in fact denied — or I guess overruled the objection of [Mr. Tracy] and have received the written report which I will make, at this point, an exhibit. [[Image here]] If you want to make any more of a record, [Mr. Tracy], you may do so now. (Petitioner’s Exhibit 1 received into evidence.) COUNSEL FOR MR. TRACY: Thank you, Your Honor. I object to the report as hearsay. While it is true that the attorney ad litem is an advocate for the best interest of the child, not in the traditional sense of what a client/attorney relationship would be, Administrative Order 15, Section 5 does require her to present evidence and facts to the Court that would support her recommendation, and that the Rules of Evidence still apply as to hearsay and otherwise. That being said and accepted, if that were accepted, then she’s also in violation of the Professional Rules of Conduct 3.7 because she is both advocating and serving as a witness. The Court has prohibited attorneys testifying on behalf of their own clients. Even affidavits attached to motions or briefs that are — where the affiant is the attorney are hearsay and not admissible. CIRCUIT COURT: Okay, I hear your objection. It is noted. I overrule it. I believe Ms. Burnett is not in violation of the model rules and is in compliance with the Administrative Order. And P-1 will be received and is hereby received over [Mr. Tracy’s] objection. At the conclusion of the hearing, the circuit court left custody with Ms. Dennie and awarded Mr. Tracy standard visitation. An order memorializing the circuit court’s ruling was entered, [ 4and Mr. Tracy filed a timely notice of appeal. For his sole point on appeal, Mr. Tracy argues that the circuit court erred in admitting the attorney ad litem’s report into evidence, as it contained hearsay and violated the Arkansas Rules of Professional Conduct. He contends that instead of admitting the ad litem’s report, the ad litem should be permitted to present evidence, including the calling of witnesses, to allow for cross-examination and to permit the fact-finder the ability to determine the credibility of the witnesses. He concludes that though Arkansas Supreme Court Administrative Order No. 15 requires some adherence to the Arkansas Rules of Civil Procedure and the Arkansas Rules of Professional Conduct, the rules should not be compromised more than is necessary to allow attorneys ad litem to perform their duties.1 Ms. Dennie responds that the attorney ad litem in the instant case acted in accordance with Ark. Sup.Ct. Admin. Order No. 15, which she asserts provides internal safeguards to protect the reliability of an ad litem’s report. She avers that an attorney, acting independently in the capacity of an ad litem, is in a position to accurately report the inconsistent and consistent statements of individuals interviewed. She claims that such a report is reliable and trustworthy, but that if suspect, is susceptible to impeachment by reasonable and available means by either party. The attorney ad litem also responds, countering that, as an advocate for the child’s best | ¿interest, an attorney ad litem may present oral and written arguments. She further contends that an ad-litem report is not hearsay, because such a report is not presented for the truth of the matter asserted, but even if it was, such a report falls within the reports exception of Arkansas Rule of Evidence 803(8) and is also admissible under Arkansas Rule of Evidence 802. She urges that even if it was error for the circuit court to admit her report, Mr. Tracy was not prejudiced because there was plenty of evidence from which the circuit court could conclude that it was in M.T.’s best interest to remain in Ms. Dennie’s custody. Finally, she maintains, any discussion regarding Rule 8.7 of the Rules of Professional Conduct is irrelevant because she was not called as a witness. Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). At issue here is whether the circuit court abused its discretion in overruling Mr. Tracy’s objections to the admission of the attorney ad litem’s report on two grounds: hearsay and a violation of the Rules of Professional Conduct. We hold that the circuit court did not abuse its discretion. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” and it is not admissible except as provided by law or our rules. Ark. R. Evid. 801(c), 802 (2011). A statement is an oral or written assertion. See Ark. R. Evid. 801(a)(1). Here, a review of the attorney ad litem’s report indeed reveals many statements made by persons other than the ad litem, including Mr. Tracy, Ms. Dennie, Mr. Tracy’s father, and Mr. Tracy’s wife, which led to the ad litem’s recommendation on custody. However, to the extent that these | (¡statements or the recommendation itself could be considered hearsay, we hold that they were clearly admissible. As already noted, even hearsay is admissible, if provided by law or by our rules. See Ark. R. Evid. 802. Our Administrative Order No. 15(V) sets forth the standards of practice for attorneys ad li-tem in domestic-relations cases when custody is an issue. It specifically directs, in pertinent part, that the attorney ad litem shall conduct an independent investigation consisting of review of all relevant documents and records. The ad litem shall interview the child, parents, and others having relevant knowledge to assist in representation.... b.An attorney ad litem shall determine the best interest of a child by considering such custody criteria as: (1)Moral fitness factors: integrity, character, compassion, sobriety, religious training and practice, a newly acquired partner regarding the preceding elements; (2) Stability factors: emotional stability, work stability, financial stability, residence and school stability, health, partner stability; (3) Love and affection factors: attention given, discipline, attitude toward education, social attitude, attitude toward access of the other party to the child, and attitude toward cooperation with the other party regarding the child’s needs; (4) Other relevant information regarding the child such as stated preference, age, sex, health, testing and evaluation, child care arrangements; and regarding the home such as its location, size, and family composition. c. An attorney ad litem shall appear at all hearings to represent the best interest of the child. All relevant facts should be presented to the court and if the child’s wishes differ from the ad litem’s determination of the child’s best interest, the ad litem shall communicate the child’s wishes to the court, as well as the recommendations of the ad litem. d. An attorney ad litem shall file appropriate pleadings on behalf of the child, call witnesses, participate fully in examination of witnesses, present relevant evidence, and advocate for timely hearings. [[Image here]] f. An attorney ad litem shall make recommendations to the court for specific and appropriate services for the child and the child’s family. All recommendations shall likewise be communicated to the attorneys for the parties, or if a party is pro se, then to the party. Ark. Sup.Ct. Admin. Order No. 15(V) (2011). Because this court requires that an attorney 17ad litem present all relevant facts, communicate the child’s wishes, and shall make a recommendation to the circuit court, each of these must necessarily be deemed admissible pursuant to this court’s order such that the circuit court can take them into its consideration. To hold otherwise would be simply illogical. Because the report’s contents and recommendation were admissible by law or our rules, even if hearsay, we cannot say that the circuit court abused its discretion in admitting the attorney ad litem’s report into evidence over Mr. Tracy’s hearsay objection. We turn then to Mr. Tracy’s claim that the admission of the report violated Rule 3.7 of the Arkansas Rules of Professional Conduct, which provides: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (8) disqualification of the lawyer would work substantial hardship on the client. (b) Reserved. Ark. R. Prof'l Conduct 3.7 (2011). Pursuant to Order No. 15(V), an attorney ad litem is, in fact, an advocate; however, the plain language of the order makes clear that he or she is an advocate for the best interest of the child, not necessarily for the child himself, whose wishes might differ from what the ad litem considers to be in the child’s best interest. See Ark. Sup.Ct. Admin. Order No. 15(V)(c). Be that as it may, our rules of professional conduct clearly preclude an attorney from being an advocate where he or she is likely to be a necessary witness. See Weigel v. Farmers Ins. Co., 356 Ark. 617, 158 S.W.3d 147 (2004). Here, however, the record does not reflect that the attorney ad litem testified as a | ¿witness, nor can we say she was likely to be a necessary witness. This is especially true where our order specifically contemplates that an attorney ad litem will directly communicate the relevant facts, the child’s wishes, and his or her recommendation to the circuit court. Moreover, it is clearly within a party’s ability, here, Mr. Tracy’s ability, to dispute the attorney ad litem’s recommendation, such as by calling witnesses or through the arguments of counsel. Because it is not otherwise apparent that an attorney ad litem in a custody dispute is “likely to be a necessary witness,” we cannot say that the admission of an ad litem’s report is violative of Ark. R. Profl Conduct 3.7. Accordingly, we cannot say that the circuit court abused its discretion in overruling Mr. Tracy’s objection on this basis and in admitting the attorney ad litem’s report. For all of the foregoing reasons, we affirm. BROWN, BAKER, and GOODSON, JJ., concur. Footnotes [1] On several occasions, Mr. Tracy asserts to this court that his "rights” or "due process rights” were violated; however, a review of the objections raised by Mr. Tracy to the circuit court reveals no allegations of a due-process violation. Arguments not raised below, even constitutional ones, are waived on appeal. See Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643.