LaMoria v. LaMoria

• Decision Date: 19 July 2000
• Docket Number: No. 99-359.,99-359.
• Citation: 762 A.2d 1233
• Parties: Dianne LaMORIA v. Raymond LaMORIA.
• Court: Vermont Supreme Court

762 A.2d 1233

Dianne LaMORIA v. Raymond LaMORIA.

No. 99-359.

Supreme Court of Vermont.

July 19, 2000.

Motion for Reargument Denied September 1, 2000.

Present: DOOLEY, MORSE, JOHNSON, SKOGLUND and GIBSON (Ret.), Specially Assigned, JJ.

ENTRY ORDER

Mother Dianne LaMoria appeals from the denial of several discovery motions and a motion for modification of custody and visitation. She also alleges that the court erred by: (1) refusing to permit depositions of Lisa Casey, Shayna LaMoria, and Douglas Andrews; (2) refusing to order a forensic family evaluation; (3) failing to consider evidence of father's parenting abilities in the original order awarding him sole parental rights and responsibilities; (4) improperly delegating authority over parent-child contact to a counselor; (5) failing to rule on her Daubert challenge to the counselor's admission as an expert; (6) extending the relief-from-abuse order; (7) making findings that are not supported by the evidence; and (8) improperly modifying custody in a relief-from-abuse (RFA) petition. We affirm.

Mother and father, Raymond LaMoria, divorced in 1993 and shared joint legal and physical rights and responsibilities for their only daughter, Shayna, born in 1990. In the words of the court, "[a] complete breakdown in the parties' relationship ... occurred" in the years 1993 to 1996. During that time mother made several allegations to the Department of Social and Rehabilitation Services (SRS) that father was sexually assaulting Shayna. Each accusation was investigated and found by SRS to be unsubstantiated. Father believed that Shayna was suffering emotional harm because mother had pushed Shayna to make these allegations and because Shayna was a witness to the breakdown of mother and father's relationship in these years. Therefore, in 1996, father moved for sole legal and physical parental rights. After hearing evidence over many days, the Rutland Family Court modified the divorce order and granted father sole legal and physical responsibility for Shayna. The court also granted mother supervised visitation with Shayna for one hour a week. Mother never appealed this order, dated December 23, 1996.

In May 1996, father requested a RFA order based on mother's violent behavior toward him. As in the custody proceeding, the court heard numerous days of testimony over a long period of time. In January 1997, the court granted a final RFA order, which has been extended several times at father's request. Most recently, father requested an extension, and this request was heard along with mother's motions for discovery and modification of custody and visitation. In the order dated July 15, 1999, in which the court found no changed circumstances to permit modification, the court extended the RFA order based on the evidence that issues between mother and father were still "contentious" and unresolved. On appeal to this Court, mother objects to the extension.

In July 1997, mother moved to modify the December order granting father sole custody of Shayna and to modify the visitation set out in that order. She requested discovery pursuant to V.R.F.P. 4(g)(2)(A) & 5 (depositions not on issues of support, maintenance, or property division may be taken only for good cause shown, and court may order home study). The request for a forensic family evaluation was denied in an order dated January 29, 1998, which mother did not appeal. The court denied her motions for deposition, and, as threshold matter, found no change in circumstances sufficient to permit reconsideration of the custody and visitation decisions. Mother appeals. A number of mother's claims of error must be dismissed at the outset because they have not been properly preserved. See Miller v. A.N. Deringer, Inc., 146 Vt. 59, 60, 498 A.2d 501, 502 (1985) ("Judgments from which timely appeals are not taken are conclusive upon the parties.") Thus, as mother did not appeal the January 1998 denial of her request for a home study under V.R.F.P. 5, she cannot raise it now, two years later. Similarly, the family court had previously denied mother's motion to depose Douglas Andrews on August 20, 1998, and mother did not appeal. We will not entertain mother's repeated motions for this deposition. Additionally, mother here claims that Judge Valente erred in failing to make findings regarding father's ability to parent. As mother did not appeal Valente's December 23, 1996 decision we cannot review the findings embodied in that order. Finally, mother argues that the December 23, 1996 order modified custody through a RFA petition and the court lacked authority to do so. Mother's failure to timely appeal that order forecloses this claim now.

Turning to the remaining issues on appeal, we first address the discovery motions the denial of which mother appeals. "Discovery rulings are within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse or withholding of that discretion." Lamare v. North Country Animal League, 170 Vt. ___, ___, 743 A.2d 598, 604 (1999). Further, discovery such as mother sought is granted in family cases only for "good cause shown." V.R.F.P. 4(g)(2)(A). The court concluded that mother had not shown good cause for deposing Lisa Casey, father's girlfriend, because the issues involving Ms. Casey predated the December 23, 1996 order that mother did not appeal. Therefore, mother was attempting to reopen those issues, despite her failure to appeal, by deposing Ms. Casey about matters resolved by that order. There was no abuse of discretion in denying this deposition. The other discovery mother requested was the deposition of Shayna LaMoria. The court denied this motion on the grounds that her testimony was available through other means, such as through her therapist or father, and that the detriment to Shayna outweighed any probative value of the testimony. The court properly noted that V.R.F.P. 7(e) provides a balancing test to evaluate a request to have a child as a witness. The court concluded that mother had not made a showing to overcome the presumption against such testimony embodied in the rule. See Reporter's Notes V.R.F.P. 7 ("The statute recognizes that the act of testifying for or against one parent, and requests by a parent for such...