HLG v. RFSG

• Decision Date: 11 March 2016
• Docket Number: No. S–15–0182.,S–15–0182.
• Citation: 368 P.3d 902
• Parties: In the Matter of the PATERNITY OF HLG, minor child JN, Appellant (Respondent), v. RFSG, Appellee (Petitioner).
• Court: Wyoming Supreme Court

368 P.3d 902

In the Matter of the PATERNITY OF HLG, minor child JN, Appellant (Respondent),

v.RFSG, Appellee (Petitioner).

No. S–15–0182.

Supreme Court of Wyoming.

March 11, 2016.

Representing Appellant: Guy P. Cleveland of Cleveland Law, Cheyenne, Wyoming.

Representing Appellee: Jason E. Ochs of Ochs Law Firm, P.C., Casper, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ

, Justice.

[¶ 1] JN (Mother) appeals from the district court's order granting RFSG (Father) custody of their son, HLG (the child). She claims the district court abused its discretion by refusing to allow the child's therapist to give opinion testimony at the custody hearing. We conclude the district court properly applied the rules of civil procedure and, therefore, affirm.

ISSUE

[¶ 2] The issue in this case is:

Whether the district court abused its discretion by refusing to allow the child's therapist to give opinion testimony because Mother did not comply with her discovery obligations.

FACTS

[¶ 3] The child was born to Mother and Father in 2008. The parents were not married, but the family lived together until January 2010. After the parties' separation, the child lived with Mother and, although there was no order on visitation or custody, Father regularly visited the child for a time. The State filed a petition to establish support for the child, and the district court entered an order requiring Father to pay child support in January 2011. He consistently paid child support but did not visit the child after Christmas 2010.

[¶ 4] In February 2013, Mother, who had since married, filed a petition for adoption of the child by her husband. Father contested the petition, and the district court denied the adoption. Father filed a petition to establish paternity and visitation in March 2013. While the matter was pending, the district court granted Father temporary visitation with the child. For several months, Mother did not comply with the temporary visitation order. Father filed two motions for order to show cause, and the district court found Mother in contempt of court. Eventually, regular visitation between Father and the child was established.

[¶ 5] In December 2013, Father amended his petition to seek custody of the child. The district court held a trial on Father's petition in April 2015. Mother called the child's counselor, Cindy Parrish, to testify at trial. The counselor testified about her observations during therapy sessions with the child. However, when Mother's attorney asked the counselor about her opinion on a drawing the child made during counseling, Father objected. The district court sustained the objection, ruling that Mother had not disclosed the counselor's opinion prior to trial as required by the Wyoming Rules of Civil Procedure.

[¶ 6] After the trial, the district court granted custody of the child to Father, subject to Mother's visitation rights. Mother appealed.

STANDARD OF REVIEW

[¶ 7] We review the district court's interpretation of the rules of civil procedure de novo. Dishman v. First Interstate Bank, 2015 WY 154, ¶ 13, 362 P.3d 360, 365 (Wyo.2015)

; Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo.2015). The district court's decision on the admissibility of evidence is reviewed under the abuse of discretion standard. CL v. ML, 2015 WY 80, ¶ 15, 351 P.3d 272, 277 (Wyo.2015).

A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. The appellant bears the burden of showing an abuse of discretion.

Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo.2015)

, quoting Glenn v. Union Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo.2011). See also CL, ¶ 15, 351 P.3d at 277. Likewise, the district court has discretion in selecting an appropriate sanction for discovery violations, and we interfere with its decision only when the district court abused its discretion. Roemmich v. Roemmich, 2010 WY 115, ¶ 22, 238 P.3d 89, 95 (Wyo.2010) ; Ruwart v. Wagner, 880 P.2d 586, 592 (Wyo.1994).

DISCUSSION

[¶ 8] In her W.R.C.P. 26

pretrial disclosure, Mother listed Cindy Parrish as a "will call" witness but did not designate her as an expert. Mother described Ms. Parrish's expected testimony as follows:

Mrs. Parrish is [the child's] counselor/therapist. Mrs. Parrish is expected to testify relative to all matters at issue that are within her personal knowledge. Mrs. Parrish is expected to testify in detail regarding [Father's] refusal to be involved in [the child's] therapy.

Mother provided Father with the records from Ms. Parrish's counseling sessions with the child, but did not provide a report or a summary of her opinions.

[¶ 9] Ms. Parrish testified at trial that she was a licensed counselor who specialized in children's therapy. She explained that she began seeing the child at Mother's request because he had developed problems with urine and bowel control and was demonstrating compulsive behaviors such as chewing on his clothing. Mother attributed the child's problems to visitation with Father.

[¶ 10] Ms. Parrish described her counseling sessions with the child and explained that, during one session, she had the child complete an exercise with smiley and frown faces for each home. Ms. Parrish testified that the child consistently "speaks real positive [sic] about his time with his mom," and crossed out the frown face associated with Mother's house, presumably leaving the smiley face. Ms. Parrish then stated the child's response was "the opposite with dad." "He ... didn't say anything good about the dad's house and crossed out the smiley face" and shared "that he does not like being there."

[¶ 11] A little later in her testimony, Ms. Parrish described the child's drawings of Mother's and Father's houses. She stated the child drew Mother's house in yellow and Father's house in green and brown. Ms. Parrish testified she asked the child about his "wish" with regard to the houses and he said that he wished to stay at Mother's house forever and not see Father. Mother's attorney then asked Ms. Parrish, "[W]hat do you make of this sort of drawing with a six-year-old, when he's expressing these things to you?" Father's counsel objected to the question as calling for a "nondisclosed opinion."

[¶ 12] The district court asked Mother's attorney if Ms. Parrish's opinion had been disclosed in discovery. The attorney responded that all of the therapy records had been produced to Father's attorney and Ms. Parrish's witness designation was general. She also stated that Ms. Parrish was not an expert "in the sense that she's been retained by my office. She's a treating physician, but that doesn't preclude her from, after working with this child for almost a year, having, in her professional experience, some ... opinion about the services she's providing[.]"

[¶ 13] The district court sustained Father's objection to Ms. Parrish's opinion testimony, explaining:

... I believe that this witness—and her designation says that she can testify about things she has knowledge of. These are the records and the counseling sessions that she's conducted with the child.

But as far as any opinions that she's come to as a result of that work, I don't believe those were disclosed. And so I'll sustain the objection....

[¶ 14] Mother claims that Ms. Parrish was a lay witness and could properly testify to her opinions under W.R.E. 701

:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

In determining whether a witness's testimony is a proper lay opinion under Rule 701

, we have stated:

Lay opinion testimony is intended "only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events."

Tucker v. State, 2010 WY 162, ¶ 20, 245 P.3d 301, 307 (Wyo.2010)

, quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir.2001). Thus, Rule 701 does not allow a witness without specialized knowledge, experience or education to "offer opinion testimony ‘where the subject in question lies outside the realm of common experience and requires special skill or knowledge.’ " Kemper Architects, P.C. v. McFall, Konkel & Kimball Consulting Engineers, Inc., 843 P.2d 1178, 1190 (Wyo.1992)

, quoting 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 376 at 419 (Supp.1992); W.R.E. 702. See also Carroll v. Bergen, 2002 WY 166, ¶ 21, 57 P.3d 1209, 1217 (Wyo.2002). Lay witness testimony is, therefore, limited to opinions based upon common experience. See id.

[¶ 15] Under W.R.E. 702

, only expert witnesses may give opinions on matters of specialized knowledge. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Thus, "[i]f a witness's testimony draws on experience beyond the ken of the average person, that witness must meet the qualification requirements of Rule 702

." Tucker, ¶ 21, 245 P.3d at 307. See also Carroll, ¶¶ 21–22, 57 P.3d at 1217.

[¶ 16] Mother seems to argue that, because she did not specifically offer or tender Ms. Parrish as an expert witness, the counselor could testify about her opinions as a lay witness under Rule 701

. A witness's opinion is not categorized as lay simply because the proponent does not designate the witness as an expert or offer the witness as an expert at trial.¹ As the cases discussed above instruct, it is...