Owensby v. Lepper

• Court: Indiana Appellate Court
• Writing for the Court: FRIEDLANDER; The facts favorable to the judgment are that Owensby gave birth to the parties' only child; HOFFMAN; SULLIVAN
• Citation: Owensby v. Lepper, 666 N.E.2d 1251 (Ind. App. 1996)
• Decision Date: 10 June 1996
• Docket Number: No. 49A02-9501-CV-48,49A02-9501-CV-48
• Parties: Patricia Ann (Lepper) OWENSBY, Appellant-Defendant, v. Kevin Joseph LEPPER, Appellee-Plaintiff.

Page 1251

666 N.E.2d 1251

Patricia Ann (Lepper) OWENSBY, Appellant-Defendant, v. Kevin Joseph LEPPER, Appellee-Plaintiff.

No. 49A02-9501-CV-48.

Court of Appeals of Indiana.

June 10, 1996.

Rehearing Denied Sept. 20, 1996.

Christopher C. Zoeller, Zoeller & Zoeller, Indianapolis, for Appellant.

Maxine T. Bennett, Rucker Bennett & Kertis, Indianapolis, for Appellee.

OPINION.

FRIEDLANDER, Judge.

Patricia Anne (Lepper) Owensby challenges the trial court's order in favor of her former husband, Kevin Joseph Lepper, granting custody of the parties' minor son to Lepper and awarding Lepper five percent of Owensby's military pension.

We affirm in part and reverse in part.

The facts favorable to the judgment are that Owensby gave birth to the parties' only child, J.L., on May 9, 1989. In November, 1989, Owensby and Lepper were married. Approximately two years later, on May 31, 1991, Owensby filed a petition for dissolution of marriage in the Superior Court of Marion County. A final hearing was held on June 21, 1994, after which the court entered its findings of fact and conclusions of law granting Lepper custody of J.L. and awarding Lepper five percent of Owensby's military pension. Owensby and Lepper present five issues for review:

1. Did the trial court err when it admitted a report of the Criminal Investigation Division of the United States Army over Owensby's objection?

2. Did the trial court err when it sustained Lepper's objection to a psychologist's report offered by the court-appointed special advocate (CASA) and Owensby?

3. Was the trial court's decision to award Lepper custody clearly erroneous?

4. Did the trial court err when it included Owensby's unvested military pension in its distribution of the parties' marital assets?

5. Should Owensby be required to pay costs incurred by Lepper in supplementing the record on appeal?

1.

Owensby contends the trial court improperly admitted Lepper's Exhibit Z into evidence. The exhibit consisted of documents compiled by the Criminal Investigations Division of the United States Army during its investigation of Owensby for the offenses of wrongful possession of marijuana wrongful use and distribution of marijuana, larceny and obstruction of justice. The admissibility of evidence is within the sound discretion of the trial court. Prange v. Martin, 629 N.E.2d 915 (Ind.Ct.App.1994), trans. denied. We will reverse a trial court's decision to admit evidence for an abuse of discretion only when it is clearly erroneous and against the logic and effect of the facts and circumstances of the case or the reasonable inferences to be drawn therefrom. Simon v. Clark, 660 N.E.2d 634 (Ind.Ct.App.1996).

At trial, Owensby objected to the admission of Exhibit Z on the basis that it was not properly authenticated. Although Owensby's precise argument on appeal is somewhat unclear, we conclude that her challenge is based upon the fact that the evidence constitutes inadmissible hearsay. To preserve an error for review on appeal, the specific objection relied upon on appeal must have been stated in the trial court as the basis for the objection. Darlage v. Drummond, 576 N.E.2d 1303, 1309-1310 (Ind.Ct.App.1991). Although Owensby's counsel referred to the contents of Exhibit Z as hearsay, the substance of her objection at trial was that the documents were not properly authenticated. She has therefore waived her hearsay objection. Likewise, Owensby has waived her argument regarding authentication, inasmuch as she failed to raise the contention in her appellant brief. Failure of a party to raise an issue on appeal results in waiver of that issue. Malone v. Malone, 659 N.E.2d 636 (Ind.Ct.App.1995).

Even assuming Owensby did not waive her argument, and that the exhibit was improperly admitted, the error was harmless. Ind.Rules of Procedure, Trial Rule 61. We reject Owensby's assertions that the exhibit was "central to the court's ultimate decision regarding [J.L.'s] custody", Appellant's Brief at 36, inasmuch as Exhibit Z was cumulative of other evidence of record supporting the trial court's decision to award custody to Lepper. See Issue 3, infra; Pruitt v. State, 622 N.E.2d 469 (Ind.1993).

2.

Owensby contends the trial court erroneously sustained Lepper's objection to a clinical psychologist's report ordered by the court and offered by the CASA and Owensby at the custody hearing. The record shows that the court, in a February 2, 1994 decree, ordered Dr. Richard Lawlor, at his discretion, to either update an earlier report he had compiled concerning J.L.'s half-sister in a matter unrelated to the custody dispute, or to conduct a new evaluation. Record at 277. After taking the issue under advisement, the trial court stated:

At the trial, the Court took under advisement the admissibility of a written report by Dr. Richard Lawlor, a clinical psychologist. In an earlier order, the Court had directed that Dr. Lawlor update a previous ... report which had essentially involved [J.C.], Wife's daughter by a prior relationship. The first report is referenced in one of the [Marion County Domestic Relations Counseling Bureau] evaluations. Without interviewing Husband, and without a request from the Court, Dr. Lawlor submitted the report directly to the Court, ex parte, just prior to trial. The Court then granted the Husband's Motion to Strike the report. The Wife offered the report as an exhibit at trial, over Husband's objection that the report did not constitute an exception to the hearsay rule under the new Indiana Rules of Evidence. The report does not comport [sic] to be a physical or mental evaluation of the parties, and is not then a Trial Rule 35 report, and Dr. Lawlor did not comply with the specific requirements of I.C. 31-1-11.5-22(c), the report is not one anticipated by I.C. 31-1-11.5-22. The report is hearsay and cross-examination is impossible, and Dr. Lawlor's report is not admissible, however relevant.

Finding of Fact 13, Record at 319-320. Owensby contends the evaluation was admissible as a report issued pursuant to Ind.Code Ann. § 31-1-11.5-22 (West Supp.1995) which states, in relevant part:

(a) In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by:

(1) the court social service agency;

(2) the staff of the juvenile court;

(3) the local probation department or the county office of family and children;

(4) a private agency employed by the court for the purpose; or

(5) a guardian ad litem or court appointed special advocate appointed for the child by the court under section 28 of this chapter.

(b) In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian; but the child's consent must be obtained if he is of sufficient age and capable of forming rational and independent judgments. If the requirements of subsection (c) are fulfilled, the investigator's report may be received in evidence at the hearing, and it shall not be excluded on the grounds that it is hearsay or otherwise incompetent.

We conclude that IC § 31-1-11.5-22 does not apply to the facts of the present case. As stated in finding of fact number thirteen, the court ordered the report upon its own motion prior to its reception of the evidence. Furthermore, although Dr. Lawlor's report is one that an investigator appointed by the court pursuant to the statute is entitled to rely upon (IC § 31-1-11.5-22(b)), it is not the type of comprehensive report anticipated by the statute.

Despite the inapplicability of IC § 31-1-11.5-22 to the facts of this case, we conclude the evaluation was admissible under IC § 31-1-11.5-21(e) (West Supp.1995), which states that in custody disputes:

The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination of any professional personnel consulted by the court.

In the present case, Dr. Lawlor submitted a written report to the court in conformance with the statute. Lepper contends that, despite its statutory compliance, the evaluation constitutes inadmissible hearsay that was not properly authenticated at trial.

Hearsay is an out-of-court statement made by a declarant offered to prove the truth of the matter asserted therein. Indiana Rule of Evidence 802. Hearsay rests on the credibility of an out-of-court declarant who is unavailable for cross-examination and hearsay statements are therefore generally inadmissible. Mundy v. Angelicchio, 623 N.E.2d 456 (Ind.Ct.App.1993). To obviate concerns over hearsay when a court utilizes IC § 31-1-11.5-21(e), the legislature inserted a provision in the statute permitting counsel to call for cross-examination of any professional consulted by the court. Despite this express provision, Lepper did not call for the cross-examination of Dr. Lawlor but instead moved to strike the document. The court granted Lepper's motion on the basis that the submission of the document was an improper ex parte communication. We conclude that the trial court inappropriately struck the evaluation, inasmuch as it was not an improper ex parte communication, but was submitted to the court pursuant to the court's February 2, 1994 order and IC § 31-1-11.5-21(e). Lepper could have challenged the report, as set forth in IC § 31-1-11.5-22(e), by calling for...