IN RE MARRIAGE OF ALLEN

• Decision Date: 24 September 2004
• Docket Number: No. 91,676.,91,676.
• Citation: 97 P.3d 1060,33 Kan.App.2d 109
• Parties: IN THE MATTER OF THE MARRIAGE OF SHERRI A. ALLEN, n/k/a CLARK, Appellant, and ERIC A. ALLEN, Appellee.
• Court: Kansas Court of Appeals

33 Kan.App.2d 109

97 P.3d 1060

IN THE MATTER OF THE MARRIAGE OF SHERRI A. ALLEN, n/k/a CLARK, Appellant, and ERIC A. ALLEN, Appellee.

No. 91,676.

Court of Appeals of Kansas.

Opinion filed September 24, 2004.

Darrell Smith, of Olathe, for appellant.

Jennifer Anne Passiglia, of Taylor, Krusor & Passiglia, LLP, of Winfield, for appellee.

Before MARQUARDT, P.J., HILL and McANANY, JJ.

Petition for review denied 278 Kan. 845 (2005).

HILL, J.:

In this case we are asked to determine if the district court, in a custody dispute, had the authority to prevent a divorced mother from forcing her minor daughter to testify in open court and choose one parent over the other. The district court released the child from her subpoena and did not force her to testify. We find no abuse of discretion and affirm.

CASE HISTORY

Sherri A. Allen, n/k/a Clark, and Eric A. Allen, parents of two girls, B.A. and K.A., were divorced in March 1998. Initially, the children resided with their mother. In September 2002, the girls began to live with their father after allegations made by Sherri against Eric proved unsubstantiated. Eric had made a motion to change custody, arguing that Sherri's repeated and unreasonable denial and interference with his parenting time was a material change of circumstance compelling a change of custody. The court agreed.

After moving to Texas, Sherri moved the court to modify residential custody. The matter was set to be heard on October 30, 2003. She served a subpoena upon her 12-year-old daughter, B.A., directing her to appear before the court and testify, hoping that she would say that she wanted to live with her mom.

At the hearing on the motion to modify, Sherri argued that B.A. was available and should be called as a witness because "a lot" of the evidence she wished to present needed to come through B.A. Eric, opposed to calling B.A. to testify, requested the court to disqualify her as a witness because there was a reasonable basis to believe that she would be psychologically traumatized as a result of testifying, based on B.A.'s statements to her therapist. Eric proffered that B.A. was already undergoing psychological distress at the prospect of testifying.

The judge made the following statement in determining that B.A. should not be called as a witness:

"All right. Well, my consideration in this case, as in all custody cases, is the best interest of the child. And on this, specifically, it's the best interest of [B.A.]. But beyond that, I would state for the record, previously this morning Mr. Smith was given opportunity to visit with [B.A.]. And she indicated at that time to him, as reported back to me, she did not wish to testify. You add to that the evidence of the relationship that has been presented on the record and gone into great extent [sic] today by the petitioner. I feel, along with the psychological effects, that it will not be in [B.A.'s] best interest to testify. I don't think that her testimony would be a great assistance to the Court in deciding this case. And for that reason, I'm going to deny the respondent's request—or petitioner's request."

Despite the fact that B.A. was not called to the stand, Sherri presented evidence through letters and her own testimony that B.A. wished to reside with Sherri rather than with Eric and his wife.

B.A.'s therapist testified later at the hearing that B.A. was upset to the point of tears regarding the prospect of testifying in front of her parents and others. She said that it would not be healthy or appropriate for the child to make a decision about which parent should have primary residential custody. The therapist stated that B.A. had met her downstairs in the courthouse and told her that she could not testify and could not make the decision.

At the close of the hearing, the court asked the parties to submit proposed parenting plans for its consideration. On November 14, 2003, the court ruled it was in the best interest of the children to deny Sherri's requested change in custody. The court ordered that the children would continue to make their primary physical residence with their father and that Sherri would have parenting time on extended weekends, specific holidays, part of summer break, and as agreed by the parties.

NO ERROR IN REFUSING TO FORCE CHILD TO TESTIFY

Sherri argues that the district court lacked statutory authority to refuse her request to call B.A. as a witness, saying that B.A. was not disqualified. By arguing so, she ignores one of the reasons given by the district court in refusing to force B.A. to testify, and that is the relevancy of her testimony. The court took into account in its ruling not only the psychological effects on B.A. but that her testimony would not be of great assistance to the court.

Relevancy of evidence and its admission or exclusion is a matter that we review with an abuse of discretion standard. See Moore v. Associated Material & Supply Co., 263 Kan. 226, 244, 948 P.2d 652 (1997).

The district court refused to call B.A. as a witness because she was upset at the possibility of having to choose between her parents on the stand in open court and her testimony was not necessary because there were sufficient evidentiary alternatives to her live testimony that had already been admitted through exhibits and testimony. Eric did not dispute Sherri's contention that B.A. had, at least on occasion, expressed a desire to reside with her mother.

In child custody matters, the testimony of the child in open court would not usually benefit the judge because...