Miller v. Miller

• Decision Date: 30 June 1992
• Docket Number: 91-CA-2210,Nos. 91-CA-2209,s. 91-CA-2209
• Citation: 602 So.2d 330
• Parties: Judith Anne Koby MILLER v. Kenneth Victor MILLER. Kenneth Victor MILLER v. Judith Anne KOBY, wife of Kenneth Victor Miller. 602 So.2d 330
• Court: Court of Appeal of Louisiana — District of US

Page 330

602 So.2d 330

Judith Anne Koby MILLER v. Kenneth Victor MILLER.

Kenneth Victor MILLER v. Judith Anne KOBY, wife of Kenneth Victor Miller.

Nos. 91-CA-2209, 91-CA-2210.

602 So.2d 330

Court of Appeal of Louisiana Fourth Circuit.

June 30, 1992.

Richard L. Ducote, Fine & Associates, New Orleans, for appellant.

Steven R. Scheckman, New Orleans, for appellee.

Before LOBRANO, PLOTKIN and LANDRIEU, JJ.

PLOTKIN, Judge.

Appellant Judith Miller seeks review of three aspects of a trial court judgment in this domestic dispute. First, she challenges the ruling which granted her ex-husband, appellee Kenneth Miller, visitation with the children of the marriage--Jordan, now 9, and Hannah, now 5. Second, she appeals the trial court's finding that the two parties were mutually at fault in causing the break-up of the marriage. Third, she contests the trial court's decision to maintain jurisdiction over the case in Louisiana under the Uniform Child Custody Jurisdiction Act (UCCJA). We affirm the trial court judgment in all respects.

FACTS:

On October 20, 1987, Ms. Miller filed a petition for separation, alleging physical abuse by Mr. Miller. The trial court initially entered a consent judgment on April 15, 1988 granting the parties joint custody of the two minor children. The consent judgment named Ms. Miller domiciliary parent and included a child support award.

On May 11, 1988, Mr. Miller filed a Petition for Divorce, citing separation without reconciliation for more than a year. In answering the petition, Ms. Miller alleged that Mr. Miller had sexually abused Hannah; Ms. Miller also sought permanent alimony. At the same time, she filed a Petition for Domestic Abuse Assistance, accusing Mr. Miller of sexually abusing Hannah and of physically abusing her. That petition resulted in a restraining order preventing Mr. Miller from visiting with his children and an order awarding Ms. Miller "temporary sole custody" of the children. The two cases were consolidated on June 12, 1989.

On July 13, 1989, Mr. Miller filed an answer and reconventional demand to the Petition for Domestic Abuse Assistance, denying Ms. Miller's accusation concerning his alleged sexual abuse of Hannah and requesting that his custody and visitation rights be reinstated. Mr. Miller also requested a court-ordered examination of all parties. A judgment of divorce was granted to Mr. Miller on December 5, 1989.

On December 12, 1989, the court reinstated limited supervised visitation rights to Mr. Miller, conditioned on his agreement to submit to therapy. Then, on December 23, 1989, Mr. Miller was awarded certain supervised visitation over the Christmas holidays.

On February 16, 1990, Ms. Miller filed a "Petition for Sole Custody and Termination of Visitation Custody" in Indiana, where she had moved without court permission after receiving the temporary sole custody order. In her petition filed in the Indiana court, Ms. Miller again alleged that Mr. Miller had sexually abused his daughter. The Indiana court declined jurisdiction and dismissed Ms. Miller's action on May 14, 1990, stating that it was "most inadequately informed" about the cause of action pending before Civil District Court here in Louisiana and noting that the same matters were at issue in both cases.

On April 27, 1990, Ms. Miller filed a motion to terminate Mr. Miller's visitation rights in the Louisiana court, requesting findings of fact. On June 1, 1990, the trial court appointed Valerie Wolf, B.C.S.W., as Mr. Miller's therapist, and issued an order holding Ms. Miller's attorney, Richard Ducote, in contempt of court for interfering with the court's prior visitation order. On June 1, 1990, the court appointed Alan Klein, Ph.D. to evaluate all parties pursuant to the motion filed by Mr. Miller. On October 1, 1990, Ms. Miller filed a rule for alimony and modification of child support.

Trial of the matter was held on December 17 and 18, 1990. On December 28, 1990, the trial court issued a judgment granting Ms. Miller sole custody of the minor children and denying her request for an increase in child support and for permanent alimony. Finally, on February 14, 1991, the trial court entered a judgment granting Mr. Miller six months of supervised visitation, followed by unsupervised, then unsupervised overnight visitation. The trial judge also ordered all parties to seek psychotherapy and found both Mr. and Ms. Miller at fault in the breakup of the marriage. Furthermore, the trial court maintained jurisdiction over the case in Louisiana under the UCCJA. In her brief reasons for judgment, the trial judge stated that she "does not believe that Hannah Miller was molested by her father."

MOLESTATION ALLEGATIONS:

Ms. Miller seeks reversal of the judgment which reinstated Mr. Miller's visitation rights, claiming that the trial judge was manifestly erroneous in concluding that Hannah had not been molested by her father.

At trial, the judge heard the testimony of both Mr. and Ms. Miller, as well as expert testimony from the court-appointed psychologist, Dr. Klein, and from Mr. Miller's court-appointed therapist, Ms. Wolf. Deposition testimony from two of Hannah's therapists, Linda Connor and Dr. Dan Linkenhoker, was also presented. Both Dr. Klein and Ms. Wolf testified that they did not believe that Mr. Miller had sexually abused Hannah, while both Ms. Connor and Dr. Linkenhoker stated by deposition that they believed that Hannah had in fact been molested by her father.

In Louisiana, a trial court's findings of fact based on decisions to credit the testimony of one witness or of one set of witnesses over the testimony of another are entitled to "great deference" since "only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In fact, a factfinder's decision on credibility issues "can virtually never be manifestly erroneous or clearly wrong." Id. at 845. The same rule applies in cases involving "two permissible views of the evidence." Id. at 844. When the record reveals conflicts in testimony, but also "furnishes a reasonable factual basis for the trier of fact's finding," a trial court judgment may not be reversed "even though the appellate court may feel its own evaluations and inferences are as reasonable." Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). In the absence of a finding of manifest error, appellate courts are bound to affirm the decision of the factfinder. Rosell, 549 So.2d at 844.

In reviewing contrasting expert testimony, the trier of fact has the responsibility "to determine which evidence is the most credible." Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1111 (La.1990). In the instant case, the trial judge concluded that the opinions of the court-appointed expert witnesses were more credible than the opinions of Ms. Miller's expert witnesses. After reviewing the entire record, we find no manifest error in that decision.

Ms. Miller argues in brief that the above rules giving deference to the trial court's decision on this issue should not apply in this case. In support of this position, she cites Schwartz v. Bourgeois, 422 So.2d 1176 (La.App. 4th Cir.1982), writ denied 429 So.2d 153 (La.1983), in which this court refused to apply the manifest error rule to a trial court decision based solely on pleadings and depositions. However, the trial court's decision in the instant case is based on a combination of live witnesses and deposition testimony. In fact, the testimony which the trial court chose to believe was all live testimony. Additionally, the Louisiana Supreme Court specifically referred to expert deposition testimony in Sistler, saying that the rule that great deference is to be accorded to the trial court's factual findings is based on both the allocation of functions between the three tiers of this state's court system and "the trial court's opportunity to evaluate live witnesses or to evaluate a mixture of deposition and live testimony." Thus, the exception to the manifest error rule established in Schwartz does not apply.

Ms. Miller also contests the trial court's decision to credit the testimony of Mr. Miller's therapist and the court-ordered psychologist over the testimony of Hannah's therapist, arguing that the testimony of a treating therapist is entitled to greater weight than that of a psychologist who examined Hannah only for purposes of litigation. Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986, 990 (La.App. 4th Cir.1990). However, Ms. Miller's argument ignores the fact that Ms. Wolf is Mr. Miller's therapist and thus is entitled to greater weight than her witnesses under the exact same rule she cites to give her own witnesses more credibility. In fact, the record reveals unequivocally that neither Dr. Linkenhoker nor Ms. Conner examined Mr. Miller at any length. Dr. Linkenhoker admitted in his deposition that further information about Mr. Miller would have been helpful to him. Additionally, both of Ms. Miller's witnesses admitted that their evaluation of Hannah were performed a considerable period of time after the alleged incident, and indicated that they would have been more reliable had they been done sooner.

In the face of such conflicting interests, this court is bound by the...