MMOE v. MJE

• Decision Date: 13 November 1992
• Docket Number: No. C-91-12,C-91-12
• Citation: 841 P.2d 820
• Parties: MMOE, a/k/a PO, Appellant (Defendant), v. MJE, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 820

841 P.2d 820

MMOE, a/k/a PO, Appellant (Defendant), v. MJE, Appellee (Plaintiff).

No. C-91-12.

Supreme Court of Wyoming.

Nov. 13, 1992.

John M. Daly and Wendy M. Martin, Gillette, for appellant.

Michael A. Maycock of Maycock Law Offices, P.C., Gillette, for appellee.

Jack Sundquist, Gillette, Guardian Ad Litem.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

MACY, Chief Justice.

Appellant MMOE (the mother) appeals from the trial court's denial of her petition for custody of her son due to alleged sexual abuse by Appellee MJE (the father). The lower court found that sufficient evidence did not exist to support the mother's allegations of sexual abuse and ordered that custody of the son remain in the father with supervised visitation rights in the mother.

We affirm.

The mother presents the following issues for our consideration:

I. The District Court erred in its application of WRE 706.

(a) The Court failed to enter an order to show cause why an expert should not be appointed.

(b) The Court failed to inform [the] expert of his duties in writing and to file in writing with the clerk or in the alternative to have [a] conference in which all parties had an opportunity to participate.

(c) The Court's expert failed to follow what written instructions were given by the Court Order.

(d) The Court's expert failed to advise the parties of his findings.

II. The District Court abused its discretion when it found that Dr. Ned Tranel, the court-appointed expert, was qualified to give[ ] an opinion as to whether the minor child ... was sexually abused.

(a) Dr. Tranel did not possess scientific, technical, or other specialized knowledge of child sexual abuse that could assist the trier [of] fact.

(b) Dr. Tranel did not possess the knowledge, skill, experience, training or education to be a qualified expert in the field of child sexual abuse.

(c) The facts and data relied upon by Dr. Tranel in making his conclusions were not of the kind reasonably relied upon by the experts in the field of child sexual abuse in forming opinions or inferences upon the subject.

III. The Court erred in failing to admit the depositions of the San Diego experts pursuant to Rule 32 W.R.C.P.

The mother and the father married in 1982, and their son was born in January 1984. The parties were divorced pursuant to a divorce decree entered on October 16, 1985, and amended on November 17, 1985. The court awarded the primary custody of the son to the mother and extensive visitation rights to the father. In 1988, the mother petitioned the court to suspend or terminate the father's visitation rights because he allegedly sexually abused his son. The father denied the allegation and counterclaimed for custody of the son. Following a two-day trial, the court found that the mother's allegations of sexual abuse were "totally without merit." The court further found that the mother's refusal to accept the fact that her allegations were unfounded damaged the father's relationship with his son and warranted awarding custody of the son to the father. The court's order granted the same visitation schedule to the mother which the father previously enjoyed, including summer vacations.

The son spent the summer of 1990 with his mother but visited his father over the July 21-22 weekend. Upon returning from his weekend visit, the son allegedly complained to his mother that he had been sexually abused by his father and paternal grandmother. In a graphic representation of the alleged abuse, the son drew a picture of his father sodomizing him and his paternal grandmother "putting [a] knife up [his cousin] Ryan's butt." On July 25th, the mother and her son flew to San Diego, California, where Amy Markin, a licensed clinical social worker, and Cynthia Kuelbs, M.D., interviewed and examined the son at the San Diego Children's Hospital and Health Center for possible sexual abuse.

Following her return from San Diego, the mother obtained a temporary restraining order, prohibiting any further contact between the father and the son. The restraining order was supported by the mother's signed affidavit, as well as Amy Markin's unsigned affidavit. On August 14, 1990, the father moved to dissolve the temporary restraining order, in part, because Ms. Markin did not sign her affidavit and because Dr. Kuelbs did not submit an affidavit. The court held a hearing on the father's motion and allowed the restraining order to continue, subject to the conditions that the mother file a petition to modify the father's visitation rights and that she also produce Ms. Markin's and Dr. Kuelbs' signed affidavits by August 29th. The mother filed the motion to modify the father's visitation rights but failed to obtain the required signed affidavits. The mother's failure to obtain the affidavits prompted the court to lift the restraining order on August 31st.

On September 4, 1990, the mother again sought a temporary restraining order. Because of conflicting evidence concerning the alleged abuse, the court denied the mother's request for a temporary restraining order in a hearing held on September 17th. In that same hearing, the court directed that the son be placed in the temporary custody of the Department of Public Assistance and Social Services (n/k/a the Campbell County Department of Family Services); appointed a guardian ad litem for the son; and, of particular significance to this appeal, ordered both parties to undergo rehabilitative counseling with Ned Tranel, Ph.D., a clinical psychologist.

In a subsequent hearing, both parties expressed concern over the lack of clarity in what duties the court expected Dr. Tranel to perform. The judge attempted to alleviate the confusion by stating:

[T]he child[ ] needs some counseling to try and straighten his life out and to get him on a track that leads to a healthy upbringing. The Court believes that that could best be accomplished by Doctor Ned Tranel. And I have had a lot of confidence in Doctor Ned Tranel. I think it goes without saying that before he can start the rehabilitative efforts that he is going to have to do some type of evaluation. And I guess I didn't clarify that enough. I thought counsel would understand that that was going to be part of the process. However, apparently, there is some confusion. I will see if I can't clarify that so that everybody knows where we are going.

Doctor Tranel certainly would be able to do some evaluations on this child and I believe that he would do those in a controlled setting. And I will also ask that included in that be the interactional assessment. ¹ And, also, I will allow counsel to submit to Doctor Tranel, before he starts his work on [the son], their suggestions or recommendations as to any type of testing that they would like to see done by Doctor Tranel on [the son].

Counsel for both parties, as well as the guardian ad litem, had the opportunity to seek additional clarification of Dr. Tranel's role. None of the parties present registered any objection to Dr. Tranel's role, nor did they request that the court limit his duties.

Dr. Tranel completed his report assessing the parties during the first week of February 1991. The report described the son's behavioral pattern as not being consistent with that of a sexually abused child and concluded that the son's parenting needs would be met most effectively through continued custody with his father. The trial commenced on February 19th and lasted for nineteen days spread out over a three-month period. In those nineteen days, the trial judge heard testimony from over fifty witnesses and examined over five hundred exhibits. After considering the voluminous testimony and exhibits, the trial judge found that the mother failed to prove that a substantial change in the circumstances occurred or that the father sexually abused his son.

I

The mother's first contention is that the district court failed to comply with W.R.E. 706 when it appointed Dr. Tranel. W.R.E. 706(a) provides:

(a) Appointment.--The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.

The mother views the lower court's appointment of Dr. Tranel as violating almost every procedural requirement contained in W.R.E. 706. Specifically, the mother claims that the court failed to enter an order to show cause and failed to inform Dr. Tranel of his duties in writing or at a conference in which the parties would have had an opportunity to participate; that, once appointed, Dr. Tranel failed to follow the court's limited instructions; and that the doctor failed to advise the parties of his findings.

As a threshold matter, it is not entirely clear whether W.R.E. 706 even applies to this case. Apparently, the trial judge determined in a September 17, 1990, hearing that Dr. Tranel should provide some assistance in this case. The record does not contain a transcript of that hearing, but the court's order stemming from that hearing required both parties to make arrangements for rehabilitative counseling with Dr. Tranel and to follow his recommendations. Thus, it would appear that initially Dr. Tranel's role was merely that of a counselor, not a court...