McBride-Kramer v. Kramer

• Decision Date: 24 January 2019
• Docket Number: S-18-0096
• Parties: Sarah MCBRIDE-KRAMER, Appellant (Plaintiff), v. Samuel B. KRAMER, Appellee (Defendant).
• Court: Wyoming Supreme Court

433 P.3d 529

Sarah MCBRIDE-KRAMER, Appellant (Plaintiff),

v.Samuel B. KRAMER, Appellee (Defendant).

S-18-0096

Supreme Court of Wyoming.

January 24, 2019

Representing Appellant: Eric F. Phillips, Eric F. Phillips Law Office, Rock Springs, Wyoming.

Representing Appellee: Farrah L. Spencer and Monica J. Vozakis of Long Reimer Winegar Beppler LLP, Evanston, Wyoming.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

[¶1] Following a bench trial, the district court awarded the appellee, Samuel B. Kramer (Father), primary physical custody, and the appellant, Sarah McBride-Kramer (Mother) visitation, of the couple’s daughter (the child). Mother appeals the order, arguing the district court abused its discretion when it refused to allow her to call one of the child’s counselors, who had not been previously designated as a witness, to testify at trial. We affirm.

ISSUE

[¶2] Mother identified two issues on appeal; however, they involve the same ruling. Therefore, we distill Mother’s issues to one:

Whether the district court abused its discretion when it refused to allow an undesignated witness to testify at trial.

FACTS

[¶3] Father and Mother were married on October 4, 2008, and the child was born in 2012. Toward the end of the marriage, Mother became convinced that Father was either sexually abusing the child or grooming her for future sexual abuse. Father denied abusing the child, but Mother’s concerns eventually led to her leaving the family home and moving with the child to Mother’s parents' home in Utah. Mother filed for divorce on February 24, 2016.

[¶4] Between the time Mother filed for divorce and the trial, the child was treated by seven counselors, the focus being whether the child was sexually abused. The child also was examined by emergency room staff who were informed of Mother’s suspicions of sexual abuse. Mother reported the suspected abuse to the Utah and Wyoming Department of Family Services and twice to law enforcement. As part of both criminal and juvenile investigations, the child underwent two separate forensic examinations. It appears Mother’s reports went unsubstantiated because a criminal or juvenile action was not filed against Father.

[¶5] Mother refused to allow Father any unsupervised visitation with the child after they moved to Utah. On May 3, 2016, Father filed a motion to establish temporary visitation. The district court held a hearing on that motion, considered the arguments of the parties, and ordered an unsupervised visitation schedule for Father. Mother, however, refused to abide by the terms of the order and insisted on a "transition period" for Father’s visitation. Mother was present during each visit, usually staying overnight in Father’s home with the child. She often arrived with the child several hours late for Father’s visitation, and almost always took the child home early. Other times, she simply would not bring the child for visitation, claiming the child was ill or did not want to visit Father. On February 25, 2017, Mother called the Evanston Police Department to "keep the peace" when she arrived with the child four to five hours late. Mother asked the police officer to grant her permission to decline the visit because Father would act rudely to the child. The officer informed Mother that she needed to comply with the visitation order.

[¶6] Father continuously requested that visitation occur in accord with the district court’s order. However, the first overnight visit without Mother did not take place until March 10, 2017. On that day, Mother arrived at Father’s house over three hours late, and again requested that law enforcement intercede. She explained "she was upset that her daughter had to go for [an] overnight visitation that she did not think she was ready for." The visit took place and Father’s unsupervised visitation continued to take place thereafter.

[¶7] On October 29, 2017, Mother picked the child up from her visit with Father and again alleged that Father had abused the child. Father was interviewed for a third time, and the child underwent a third forensic interview. Because this additional investigation was ongoing, on November 17, 2017, Mother requested to continue the custody trial set for November 29 and 30, 2017. The district court observed that the claims in this investigation seemed to be more of the same claims that had been investigated before, denied Mother’s request for a continuance, and the trial proceeded as scheduled. The record does not indicate this investigation ever resulted in any juvenile or criminal action.

[¶8] On the morning of the first day of trial, Mother requested that Heather Wyler, a counselor who had been treating the child since December 2016, be allowed to testify. Although Mother had listed other therapists who treated the child as potential witnesses at trial, Mother never listed Ms. Wyler as a potential witness in any capacity in her pretrial disclosures. Mother argued Ms. Wyler had obtained important and useful information from the child within the prior month, and that information had been provided to Father through two separate letters. Father objected to Ms. Wyler’s testimony, stating that while he had received the letters, he did not have any of the child’s treatment records from Ms. Wyler. The district court pointed out that it had ordered Mother’s expert witnesses be designated by March 31, 2017, Mother had not designated Ms. Wyler at that time, and the order specifically stated that "[e]xpert witnesses not designated will be prohibited from testifying, absent consent of the Court for good cause shown." The court then explained that Mother’s request for a continuance and the information Ms. Wyler would apparently testify about were simply a rehash of Mother’s allegations of sexual abuse that had not been substantiated to date and did not constitute "good cause."

[¶9] During the trial, the court heard testimony from Mother, Father, Mother’s parents, Father’s brother, and a psychologist Mother had consulted about the child. Mother testified extensively about her concern that Father had either sexually abused or was going to sexually abuse the child. Father testified that he never abused the child and Mother’s allegations were unfounded. Dr. Goldsmith, a psychologist that Mother had consulted with and designated as an expert, was called as a witness by Father. Dr. Goldsmith explained that the child could appear anxious around Father because she had been repeatedly asked questions about her father and abuse by many different people. Dr. Goldsmith expressed concern about the number of times the child had been examined for sexual abuse, explaining those exams also carry the risk of trauma to the child.

[¶10] The court also heard extensive testimony from both parties about Mother’s unwillingness to comply with the temporary visitation order and the difficulties Father encountered in spending time with the child. After considering the testimony, the district court determined Father had not sexually abused the child, although it acknowledged that Mother believed otherwise. The court carefully considered each factor listed in Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2017).¹ The court found that both parents love and are capable of caring and providing for the child. Mother’s behavior towards Father and her continual interference with visitation, however, weighed heavily against Mother in the analysis. The court expressed concern that nothing would stop Mother from believing that Father abused the child, and that belief will prevent Mother from effectively communicating with Father or allowing and respecting Father’s time with the child. For these reasons, the district court granted Father primary custody of the child and Mother visitation. Mother timely appealed the order.

STANDARD OF REVIEW

[¶11] Mother challenges the district court’s decision to preclude Ms. Wyler’s testimony at trial as a sanction for Mother’s failure to designate Ms. Wyler as an expert witness as required by the court’s scheduling order under Wyoming Rule of Civil Procedure 16. "[T]he law is clear that district courts have broad discretion to impose sanctions under the Wyoming Rules of Civil Procedure." Brown v. Brown , 2016 WY 120, ¶ 11, 385 P.3d 321, 324 (Wyo. 2016). Therefore, we review the court’s decision to impose sanctions for an abuse of discretion. Id .

"A court abuses its discretion when it acts in a manner which exceeds the bounds of reason under the circumstances. The party who is attacking the trial court’s ruling has the burden to establish an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did."

Three Way, Inc. v. Burton Enters., Inc. , 2008 WY 18, ¶ 16, 177 P.3d 219, 225 (Wyo. 2008) (quoting Doenz v. Sheridan County Bd. of County Comm'rs , 949 P.2d 464, 465 (1997) ).

[¶12] When considering whether a district court abused its discretion in prohibiting witness testimony after a Rule 16 violation, the following factors are relevant to the court’s determination:

(1) whether allowing the evidence would incurably surprise or prejudice the opposing party;

(2) whether excluding the evidence would incurably prejudice the party seeking to introduce it;

(3) whether the party seeking to introduce the testimony failed to comply with the evidentiary rules inadvertently or willfully;

(4) the impact of allowing the proposed testimony on the orderliness and efficiency of the trial; and

(5) the impact of excluding the proposed testimony on the completeness of the information before the court or jury.

Fetzer v. J.D. Dayley & Sons, Inc ., 2004 WY 64, ¶ 14, 91 P.3d 152, 158 (Wyo. 2004).

DISCUSSION

[¶13] In her issue statement, Mother challenges the district court’s decision not to allow Ms. Wyler to testify at trial about information obtained during her most recent counseling sessions with the child: "The District Court abused its discretion when it refused to allow expert witness testimony regarding...