Anderson v. Anderson

• Decision Date: 11 May 1999
• Docket Number: Record No. 0691-98-2.
• Citation: 514 S.E.2d 369,29 Va. App. 673
• Court: Virginia Court of Appeals
• Parties: Daniel Lawson ANDERSON v. Cheryl Kerner ANDERSON.

514 S.E.2d 369

29 Va. App. 673

Daniel Lawson ANDERSON v. Cheryl Kerner ANDERSON.

Record No. 0691-98-2.

Court of Appeals of Virginia, Richmond.

May 11, 1999.

Lawrence D. Diehl, Hopewell (Susanne L. Shilling; Shilling & Associates, Richmond, on brief), for appellant.

Julie M. Cillo (Phoebe P. Hall, on brief), Midlothian, for appellee.

Present: WILLIS, ELDER and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

In this appeal, Daniel Lawson Anderson ("husband") argues the trial court erred by: 1) excluding the testimony of Dr. Arnold Stolberg under the confidentiality provisions of Code § 8.01-581.22; 2) failing to grant him joint legal custody of the parties' child, Elyse; 3) denying his request for additional holiday visitation; 4) classifying two IRA funds as marital property; 5) failing to order or address the issue of the division of tangible personal property in its equitable distribution award; and 6) failing to award him an equitable distribution exceeding one-half of the marital property. Wife alleges cross-error, contending the trial court erred in finding that husband did not waste marital funds in an IRA account with Crestar Bank. Both parties ask for an award of attorneys' fees incurred on appeal; husband also asks for costs. For the reasons stated below, we reverse in part and affirm in part.

I. BACKGROUND

We review the evidence in the light most favorable to wife, the party prevailing below and grant all reasonable inferences fairly deducible therefrom. See Gamer v. Gamer, 16 Va.App. 335, 340, 429 S.E.2d 618, 622 (1993)

.

The parties married on October 20, 1984 and had one child, Elyse, born November 7, 1989. The parties separated on January 31, 1996. Wife filed a bill of complaint for divorce on February 9, 1996, charging cruelty and constructive desertion. Husband's cross-bill alleged desertion.

The trial court entered preliminary orders regarding custody, child support, and the preservation of the parties' assets on February 23, May 16, and November 7, 1996, and February 13, 1997, respectively.

On May 28, 1997, the trial court issued a letter opinion granting wife a no-fault divorce. It also awarded her sole legal custody of Elyse with visitation to husband based on an existing schedule; ruled that husband's American Funds and Crestar IRA accounts were marital property; found that husband did not meet his burden of tracing as to the funds in these accounts; found that husband used marital funds in the Crestar account for legitimate post-separation expenses; and awarded an equal division of marital property. Upon motions to reconsider its initial ruling, the court issued a second letter opinion on October 13, 1997, again holding that the American Funds and Crestar IRA accounts were marital property and that husband had failed to satisfy his burden of proof on the retracing issue. The court entered a final decree of divorce, incorporating its previous findings, on February 26, 1998.

II. EXCLUSION OF DR. STOLBERG'S TESTIMONY

Husband argues the trial court erred by excluding the testimony of Dr. Arnold Stolberg pursuant to the confidentiality provisions of Code § 8.01-581.22, having concluded that he acted as a mediator in the custody dispute between the parties.¹ We agree and reverse on that ground.

Shortly after their separation in January 1996, the parties agreed to meet with Dr. Stolberg, a licensed clinical psychologist. Dr. Stolberg subsequently prepared a report, recommending the court award joint legal and physical custody of Elyse to the parties based on information gathered over the course of the parties' sessions. Although husband sent this report to the court, the report was not admitted into evidence. When husband proposed to have Dr. Stolberg testify with respect to his findings, wife objected, contending Dr. Stolberg acted as a mediator between the parties and was thus precluded from testifying under the confidentiality provisions of Code § 8.01-581.22.

Wife filed a brief setting forth her position on the issue.² In her brief, wife proffered that Dr. Stolberg suggested the parties use him to "mediate their parenting arrangements, advising them that he had worked out his own personal custody arrangements in mediation and that it was a good way to resolve things." Wife also stated that Dr. Stolberg "worked with [the parties] to help them work out an agreement as to how they would parent their child as separated parents, and [wife] relied on him as a neutral mediator during this process." The only other evidence wife offered to show that Dr. Stolberg acted as a mediator were documents describing him as such, including: 1) a letter from husband suggesting they make "use of Dr. Stolberg to mediate non-monetary issues between [them]"; 2) a billing statement provided by husband that describes Dr. Stolberg's services as "Child Counseling/Psychological Evaluation/Divorce Mediation"; and 3) a proposed order prepared by husband's counsel that describes the parties' meetings with Dr. Stolberg as "mediation."³ Eventually, wife discontinued the sessions because she felt Dr. Stolberg was "pressing her to agree to matters she did not feel were in her child's best interest...."

Husband's written proffer filed with the court reflects discussions held with Dr. Stolberg respecting his role in the case. Dr. Stolberg explained that he is a licensed psychotherapist who does psychotherapy, not mediation. According to husband, wife was first to consult Dr. Stolberg, a specialist in counseling children of divorcing parents, for the purpose of providing counseling to the parties' child. Dr. Stolberg asked to interview both parents in support of his counseling goals for the child. Over a period of eight months, the parties attended twenty-eight sessions with Dr. Stolberg, either individually or together. Some of the sessions were held with the child and one of the parents in attendance. Dr. Stolberg indicated that "what he does is to teach parents how to work together to promote their child's development and to minimize problems that already exist and that his work is exclusively focused around remediation of problems and prevention of future problems." He characterized mediation as "directed to equity and fairness in the resolution of disputes" and distinguished it as a process in which the psychological adjustment of the parties is not a consideration. According to Dr. Stolberg, the parties were aware that he was not mediating their disputes "at all times in their meetings with him."

Barbara Hulburt, an expert in mediation, filed a letter with the court in response to a request made by husband's attorney in which she discussed the differences between mediation, as defined by the Code of Virginia, and therapy. Hulburt wrote:

[a] mediator serves only as facilitator, that is, that the mediator is in charge of the process and the parties in control of the subject matter[, that] mediation is characterized by a limited number of meetings instead of an on-going relationship[, and that] mediation is defined through a series of discre[te] stages which make up a very specific process.... [F]undamentally, ... a mediator is a process expert. The parties to the dispute do not seek the mediator out because of any substantive expertise — in fact, it would be inappropriate for a mediator to offer any opinion with respect to the "best" outcome of the mediation.

As a general principle, evidence that tends to prove a matter which is properly at issue in a case is generally admissible. Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 896 (1983) ("Any fact, however remote, that tends to establish the probability or improbability of a fact in issue is admissible."). See Charles E. Friend, The Law of Evidence in Virginia § 11.2 (4th ed.1993). Such evidence "should be excluded only when its probative value is outweighed by policy considerations which make its use undesirable in the particular case." Farley v. Commonwealth, 20 Va.App. 495, 498, 458 S.E.2d 310, 311 (1995). See Friend, supra at § 11.2. Responsibility for evaluating whether the probative value of evidence is outweighed by policy considerations mitigating against admissibility rests within the discretion of the trial court. See Farley, 20 Va.App. at 498,

458 S.E.2d at 311-12. The party seeking to establish the existence of a privileged communication carries the burden of proof. See Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988) (stating that the proponent of an attorney-client privilege has the burden of proving "that an attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived"); Robertson v. Commonwealth, 181 Va. 520, 540, 25 S.E.2d 352, 360 (1943) (finding that the party seeking to avoid production of a document on the ground that it is a privileged communication has the burden of establishing his contention).

We find that wife did not satisfy her burden of proving the communications with Dr. Stolberg were privileged because the evidence fails to support the trial court's conclusion that Dr. Stolberg acted as a mediator in the dispute between the parties on the issues of custody and visitation. The only evidence wife presented on the issue of Dr. Stolberg's role was her understanding of that role and the characterization she or others had placed on it. Absent from wife's case was substantive evidence from which the trial court could conclude that Dr. Stolberg used a facilitative, rather than a therapeutic, problem solving methodology. See Code § 8.01-581.21 (defining "mediation" as a process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of a controversy). Wife's description of Dr. Stolberg as a mediator cannot substitute for evidence that he, in fact, acted as a mediator in the parties' custody dispute. See Edwards, 235 Va. at 509,

370 S.E.2d at 301.

Furthermore, husband's...