Barth v. Barth, 92-3015
| Decision Date | 28 October 1993 |
| Docket Number | No. 92-3015,92-3015 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the marriage of Thomas BARTH, Petitioner-Appellant, v. Mary S. BARTH, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
EICH.
Thomas and Mary Barth are divorced and have two minor children. Thomas appeals from an order granting Mary's motion to transfer sole legal custody of the children to her. The issues are whether the trial court erred: (1) in permitting a social worker to testify as to the children's emotional health without having personally examined them; and (2) in ruling that Mary had established that it was in the children's best interest to transfer custody to her. We affirm.
The Barths were married in 1982 and lived in Janesville. They separated in 1986 and agreed that Mary would move out of the family home and the children would remain with Thomas. They divorced in 1988 and Thomas was granted sole legal custody of the children.
In making the original custody determination, the trial court made detailed findings of fact, noting that both parents were fit and that the custody issue was "a very close case." The court concluded, however, that, on the recommendation of the guardian ad litem and its own review of the evidence, the children would benefit from the "continuity and security of their present home" and that the children were "happy and content with their living arrangement."
Thomas eventually moved to Milwaukee, taking the children with him. In 1991, Mary filed a motion for a change of custody pursuant to sec. 767.325(1)(b), Stats., 1 and the trial court--a different judge presiding--granted the motion, concluding that the children were "suffering emotional harm" in the existing custodial arrangement as a result of intervening changes in the parents' lives.
Thomas argues first that the trial court erred in allowing social worker Anita Kropf to testify as to the children's emotional health because her testimony was not based on personal knowledge or reliable information. Noting that Kropf admitted that she never saw the children and that she based her testimony solely on information provided by Mary, Thomas asserts that Kropf's testimony was not admissible under sec. 907.03, Stats. 2 We conclude that the trial court erred in admitting the testimony, but that the error was harmless.
Admission of expert testimony is committed to the trial court's discretion. Brain v. Mann, 129 Wis.2d 447, 458, 385 N.W.2d 227, 232 (Ct.App.1986). Generally, we will affirm a discretionary determination if the record establishes that the court considered the facts of record and reasoned its way to a rational, legally sound conclusion. Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct.App.1991). Where, however, a discretionary determination is based on an erroneous view of the law, the court exceeds its discretion. State ex rel. North v. Goetz, 116 Wis.2d 239, 245, 342 N.W.2d 747, 750 (Ct.App.1983). We think that is the case here.
Under sec. 907.03, Stats., an expert may base opinion testimony on inadmissible information if that information is of a type reasonably relied upon by experts in the field. In re T.L.S., 125 Wis.2d 399, 402, 373 N.W.2d 55, 56 (Ct.App.1985). The rule is justified on the ground that "an expert ... is competent to judge the reliability of statements made to him [or her] by other investigators or technicians." 1 MCCORMICK ON EVIDENCE § 15, at 64-65 (J. Strong 4th ed.1992). We thus, at times, permit experts to rely on inadmissible information as long as that information evinces "trustworth[iness]"--such as hospital records or reports prepared by professionals in the field. T.L.S., 125 Wis.2d at 402, 373 N.W.2d at 56. 3
At the custody change hearing which is the subject of this appeal, Kropf testified on Mary's behalf and was asked to describe any symptoms exhibited by the children indicating that they were in an abusive situation. Thomas objected, and despite Kropf's acknowledgment that she had never seen the children, the trial court allowed her to "describe what she feels the situation might be from the history that Mrs. Barth has given her." She proceeded to testify that the children were in a "high risk" situation in Thomas's care and that their current behavior was symptomatic of future dysfunction.
Under such circumstances, we conclude that the trial court erred in permitting Kropf to testify with regard to the children's mental health. Her testimony was not based on personal knowledge or observation because she had never seen the children. Moreover, she based her testimony solely on information provided by Mary, who had an obvious stake in the proceedings. We conclude that such information does not evince the degree of trustworthiness required under the "reasonably relied upon" standard in sec. 907.03, Stats. 4
Evidentiary error does not necessarily require reversal, however. We will not reverse or order a new trial on the ground of improper admission of evidence unless the error has affected a party's substantial rights. Heggy v. Grutzner, 156 Wis.2d 186, 196, 456 N.W.2d 845, 850 (Ct.App.1990) (citing sec. 805.18(2), Stats. 5 In determining the necessity for reversal in such situations, we weigh the effect of the inadmissible evidence against the totality of the credible evidence supporting the court's decision, Tim Torres Enters., Inc. v. Linscott, 142 Wis.2d 56, 78, 416 N.W.2d 670, 679 (Ct.App.1987); we will reverse only when we are satisfied that there is a "reasonable possibility" that the error contributed to the outcome of the proceeding. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). 6
Thomas argues that Kropf's testimony prejudiced him because she was the only witness, aside from Mary, who testified that he should not have custody of the children. He maintains that absent Kropf's testimony, Mary would have failed to show a substantial change in circumstances or that transferring custody was in the children's best interest. We disagree.
In addition to Kropf, Marilyn Mutchie, the older child's grade school teacher, testified with regard to the child's fragile emotional health. She stated that although the child was performing well academically, she was emotionally "ready to crack." Mutchie also stated that the child "is so eager to please everyone on earth" and often "overreacts with tears and stress."
Dale Herrick, a clinical therapist who counseled the children for four months, testified that the older child believes that "there's something wrong with her as a person because she can't make [the] people ... around her ... happy." Herrick also testified that during the counseling sessions, he at times "felt more stress with [Thomas]." He noticed that when the children were around their father, they expressed "[m]ore anxiety" and "watch[ed] for cues on how they should respond."
Thus, even without Kropf's testimony, Mutchie, Herrick, and other witnesses provided an evidentiary basis for the trial court's decision to transfer custody. Moreover, the court expressly noted that it was "not going to place a lot of weight on [Kropf's] opinions in regard to the children, because she's never seen [them]." We conclude, therefore, that there is no reasonable likelihood of a different result in the proceeding had Kropf's testimony been disallowed. Any error was thus harmless under the Dyess test.
Thomas next argues that Mary failed to present sufficient evidence to rebut the presumption that continuing the current custody arrangement was in the minor children's best interest. We reject the argument.
Like the admission of evidence, modification of a custody order is within the trial court's discretion. Licary v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374 (Ct.App.1992). The limited scope of our review of discretionary rulings is well settled.
Generally, "[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision." Indeed, "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary determinations."
To determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision. And if that explanation indicates that the court looked to and "considered the facts of the case and reasoned its way to a conclusion that is (a) one a reasonable judge could reach and (b) consistent with applicable law, we will affirm the decision even if it is not one with which we ourselves would agree." Steinbach v. Gustafson, 177 Wis.2d 178, 185-86, 502 N.W.2d 156, 159 (Ct. App.1993) (citations omitted).
Thomas first challenges the trial court's determination that there had been a substantial change of the parties' and the children's circumstances. Whether a change of circumstances is substantial is ordinarily a question of law. Harris v. Harris, 141 Wis.2d 569, 574, 415 N.W.2d 586, 589 (Ct.App.1987). However, where a trial court's legal conclusion is intertwined with its factual findings, we give weight to the trial court's decision. Id. And because the term "substantial change of circumstances" "focuses on the facts" and requires the court to "compare[ ] the facts ... on which the prior order was based ... [to] the present facts," Licary, 168 Wis.2d at 692, 484 N.W.2d at 374, we give weight to the trial court's determination that a substantial change of circumstances occurred.
Thomas challenges the trial court's finding on the basis that, in his view, it...
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