                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    March 15, 2005 Session

       RICKY GENE CAMPBELL v. WANDA SUZANNE CAMPBELL

                   An Appeal from the Chancery Court for Fayette County
                      No. 13161PP Dewey C. Whitenton, Chancellor



                     No. W2004-01608-COA-R3-CV - Filed July 25, 2005


This is a child custody dispute involving the appointment of a guardian ad litem. The parties agreed
to the appointment of a guardian ad litem. After an investigation, the guardian ad litem
recommended that primary custody be awarded to the father. The mother filed a motion to remove
the guardian ad litem. The trial court did not do so. After a bench trial, the father was designated
the primary residential parent. The mother asserts that the guardian ad litem appointed by the trial
court appeared biased towards the father because the guardian ad litem knew the father’s sister. The
mother now appeals. We affirm, finding no abuse of discretion in the trial court’s decision not to
remove the guardian ad litem.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Barry J. McWhirter, for the appellant, Wanda Suzanne Campbell.

Steven C. Grubb, for the appellee, Ricky Gene Campbell.

                                             OPINION

       Ricky Gene Campbell (“Father”) and Wanda Suzanne Campbell (“Mother”) were married
for approximately seventeen years. The had one child, a son, Charles, born on January 28, 1992.

       After Father petitioned for divorce, a dispute between the parties arose over custody of their
son. Prior to the trial, the parties agreed to the appointment of a guardian ad litem for the parties’
son. The trial court appointed William Rhea (“Rhea”) to serve as guardian ad litem.

        During the marriage, the family lived in a rural setting in Fayette County, Tennessee. After
the parties separated, Mother moved to Shelby County. Apparently, the parties initially had a
parenting arrangement in which the son spent three days with one parent and three days with the
other parent, while continuing to attend school in Fayette County. To accommodate the son’s desire
for less travel time and more stability, the schedule was changed prior to trial, to have Charles spend
weekdays with Father in Fayette County and weekends with Mother. The guardian ad litem issued
his report to the trial court in November 2002, apparently recommending that Charles spend most
of his residential time with Father in Fayette County.1

       On October 10, 2003, Mother filed a motion asking the trial court to remove Rhea as the
guardian ad litem. In the motion, Mother alleged that she had just discovered that Rhea was “an old
family friend” of Father’s sister, Charlene Byars (“Byars”). The record does not include a ruling
on the motion at that time, but Rhea was not removed as guardian ad litem.

        On February 20, 2004, a bench trial was held. The trial court heard testimony from both
parties, Rhea as guardian ad litem, and finally testimony from Charles.

        At trial, Rhea testified that he recommended that the son reside with Father during the school
week and with Mother on the weekends. Rhea explained that he had met privately with Charles a
number of times, and that Charles’ desires were consistent. He loved both of his parents, but wanted
to remain primarily in Fayette County, where he was comfortable in school and had numerous
friends. Rhea said that Charles “definitely expressed to me the fact that he liked this new more
consistent schedule [spending weekdays at Father’s home] better than the three-day-on and three-
day-off, I think was just wearing him out.” Rhea also noted that Father had family support in Fayette
County, in particular from Father’s sister, Byars, who lived very close to Father. When asked about
Byars, Rhea stated that “Ms. Byars a contemporary of my parents. . . . She’s a very sweet lady. I
don’t know her that well. . . . I just know of her and know of her husband. But I do know of her and
know her reputation as excellent.”

         Charles’ testimony was consistent with Rhea’s description of Charles’ preferences. He said
that he loved both of his parents, but that he wanted to be primarily in Fayette County and wanted
to stay in school in Fayette County. He said that, on some weekends, he wanted to be able to visit
with his friends in Fayette County. He asked the trial judge to implement a schedule in which he
resided with Mother in Shelby County every other weekend, with the balance of the time with Father
in Fayette County.

        After hearing all of the testimony, the trial court declared the parties divorced and adopted
a parenting plan consistent with Rhea’s recommendation, designating Father as primary residential
parent with the parties’ son residing with Mother three weekends out of four. On May 20, 2004, the
trial court entered a final decree of divorce incorporating the parenting plan. On June 25, 2004,
Mother filed her notice of appeal. On November 19, 2004, the trial court entered a written order
denying Mother’s motion to remove the guardian ad litem, and making the order effective nunc pro
tunc to November 2003. Mother now appeals.



       1
           The report of the guardian ad litem is not included in the appellate record.

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         On appeal, Mother asserts that after Rhea was appointed guardian ad litem, Mother
discovered “that Mr. Rhea’s parents were friends with Father’s sister, Charlene Byars.” The
guardian ad litem noted that the sister, Byars, provided family support for Father, and Mother argues
that this indicates that the connection “compromised his ability to serve as an impartial guardian ad
litem.” Mother asserts that this Court should adopt an “appearance of impropriety” standard which
would preclude the appointment of a guardian if the guardian’s relationship with a related party
would create the appearance of bias in favor of either parent. Mother maintains that the
circumstances of this case create the appearance of impropriety because Rhea testified during the
trial that his knowledge of Father’s sister was a consideration in making his recommendation in the
case.

        Because this case was tried by the trial court sitting without a jury, we review the trial court’s
factual findings de novo accompanied by a presumption of correctness unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996). The trial court’s legal conclusions are reviewed de novo without a presumption
of correctness. Campbell, 919 S.W.2d at 35.

        Generally, the appointment of a guardian ad litem is a matter within the discretion of the trial
court. In Gann v. Burton, 511 S.W.2d 244 (Tenn. 1974), the Tennessee Supreme Court recognized
that “the appointment of a guardian ad litem is within the sound discretion of the trial judge and
requires the trial judge to appoint the guardian ad litem whenever justice requires. . . . and this Court
will not overrule the trial judge’s decision unless there is an abuse of discretion.” Id. at 246-247.
The removal of the guardian ad litem would fall within the trial court’s discretion as well. In re
Adoption of DPM, E2002-02809-COA-R3-CV, 2003 WL 22415357, *2 (Tenn. Ct. App. Oct. 23,
2003). The abuse of discretion standard “requires us to consider (1) whether the decision has a
sufficient evidentiary foundation, (2) whether the court correctly identified and properly applied the
appropriate legal principles, and (3) whether the decision is within the range of acceptable
alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

       In this case, assuming arguendo the application of the “appearance of impropriety” standard
urged by Mother, the attenuated connection between the guardian ad litem and Father’s sister creates
no such appearance. The trial court’s comments and ruling do not even allude to Father’s sister.
Moreover, the record contains ample evidence supporting the trial court’s decision, even if no
consideration is given to Father’s family support. We find no error in the trial court’s denial of
Mother’s motion to remove the guardian ad litem or in the trial court’s designation of Father as
primary custodial parent.




                                                   -3-
     The decision of the trial court is affirmed. Costs are to be taxed to Appellant Wanda Suzanne
Campbell, and her surety, for which execution may issue, if necessary.




                                                     ___________________________________
                                                     HOLLY M. KIRBY, JUDGE




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