Padula-Wilson v. Wilson
| Decision Date | 14 April 2015 |
| Docket Number | Record No. 1203-14-2 |
| Court | Virginia Court of Appeals |
| Parties | AMANDA C. PADULA-WILSON v. MICHAEL G. WILSON |
UNPUBLISHED
Present: Judges Humphreys, Petty and Decker
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Amanda C. Padula-Wilson (Parental Rights Law Center, on briefs), for appellant.
Michael G. Wilson (Anne Brakke Campfield; Barnes & Diehl, P.C., on brief), for appellee.
Amanda C. Padula-Wilson (the mother) appeals a final custody order of the circuit court. She argues that the court erred by admitting certain expert testimony, by precluding her expert witness from testifying, by depriving her of due process, by finding no abuse by the father, and by abdicating its judicial responsibility. Michael G. Wilson (the father) asks this Court to award him attorney's fees and costs incurred on appeal. For the reasons that follow, we affirm in part, reverse and remand in part, and deny the father's request for attorney's fees and costs.
The parties married in 1999. They had three children, who were twelve (A.W.), eight (C.W.), and four (A.G.W.) years old at the time of the parties' separation in 2012. On January 3, 2013, the parties agreed to a pendente lite order governing custody and visitation. Pursuant to that order, the father was allowed supervised visitation with the children. The order did notspecify primary custody of the children, but by implication allowed the children to continue living with the mother. On August 12, 2013, the circuit court issued a letter opinion awarding primary physical custody of the children to the father and visitation to the mother.
At a hearing on August 20, 2013, the father presented evidence that the mother was "psychotic" and had experienced a "break from reality." The circuit court entered an order on that day retaining pendente lite physical custody with the father. It also directed the mother to seek mental health treatment and barred her from visitation with the children.
The mother filed a motion to change custody, and the circuit court heard the motion on December 6 and December 30, 2013. The court issued a letter opinion on January 27, 2014, retaining primary physical custody with the father and allowing the mother supervised visitation.
The mother again made a motion requesting a change in custody. The circuit court heard her motion on May 8, 2014. The court issued a letter opinion on May 16, 2014, affirming the earlier decision to award the father sole physical and legal custody of the children. The court provided that the mother would "continue to have visitation based on the recommendations of" one of the psychologists involved with the case.
The court issued a final custody order on June 20, 2014. The order incorporated the findings made in its previous letter opinions. It awarded the father sole legal and physical custody of the children and allowed the mother supervised visitation.
On appeal of the circuit court's final custody order, the mother asks this Court to reverse and remand the case for a new hearing. She argues that the circuit court erred by: (A) admitting certain expert testimony, (B) excluding her expert's testimony, (C) depriving her of her constitutional rights, (D) failing to find that the father abused the children, and (E) abdicating itsjudicial responsibility. The father contends that the circuit court did not err and asks for an award of attorney's fees and cost incurred on appeal.
The mother argues that the circuit court abused its discretion by admitting the expert testimony of Jill Gasper, Michelle Nelson, Laura Wert, and Cara Campanella. She suggests that the circuit court impermissibly allowed witnesses to testify to conclusions of law by making recommendations on custody arrangements. She also contends that Nelson's testimony and report contained inadmissible hearsay. Further, the mother alleges that Campanella testified beyond the scope of her expertise. Finally, she suggests that the father did not timely identify Gasper, Campanella, and Wert as witnesses.1
A circuit court's decision to admit expert testimony rests within the sound discretion of that court. Farrell v. Warren Cnty. Dep't of Soc. Servs., 59 Va. App. 375, 429, 719 S.E.2d 329, 355-56 (2012). However, a ruling that is "plainly wrong . . . amounts to an abuse of discretion." Condo. Servs. v. First Owners' Ass'n of Forty Six Hundred Condo., Inc., 281 Va. 561, 575, 709 S.E.2d 163, 172 (2011). This Court reviews a decision admitting expert evidence in the context of the particular circumstances of the case. See Farrell, 59 Va. App. at 429-31, 719 S.E.2d at 356-57. We review the challenges under these well-established legal principles.
The mother contends that the circuit court improperly allowed Cara Campanella, Dr. Michelle Nelson, and Dr. Laura Wert to testify to conclusions of law when they stated their recommendations for visitations.
Campanella, a counselor, testified about the therapy she provided to A.W. and A.G.W. When asked whether she had an opinion regarding visitation between A.W. and the mother, Campanella answered that it was "difficult" to make a recommendation because she had not observed A.W. interact with the mother. She did, however, recommend that A.W. have some one-on-one visitation with the mother. Campanella noted that she did not advise against the mother also having combined visitation with all three children. Campanella additionally testified that she had recommended to the father that visitation occur in a "therapeutic setting."
Nelson, a clinical psychologist, testified about her evaluation of the mother and the mother's relationship with the children. Dr. Nelson opined that the children "absolutely need contact with their mother." She specified that she believed "therapeutic or supervised individual visitation with the children" would be beneficial to the family. Nelson explained that the mother's relationship with each child would progress at a unique pace and concluded that the visitation schedule would ideally allow for increased visitation as the parent-child relationships improved.
Dr. Wert, also a clinical psychologist, testified about her therapy sessions with C.W. She explained that if supervised visitation with the mother went well, visitation could be increased. Wert also recommended that any phone contact between C.W. and the mother be supervised.
Code § 8.01-401.3(B) provides that although under certain circumstances an expert may testify as to an opinion, "in no event shall such witness be permitted to express any opinion which constitutes a conclusion of law." See also Rule 2:704(a) (). The mother contends that the witnesses' recommendations regarding custody and visitation were conclusions of law, because the circuit court's ultimate custody and visitation determinations were part of the final judgment.
The circuit court was required to determine custody and visitation arrangements. Code § 20-124.2. The law provides that "the court may order an independent mental health or psychological evaluation to assist the court in its determination of the best interests of the child." Code § 20-124.2(D). The Code includes a list of factors that lower courts are required to consider in determining custody and visitation arrangements. Code § 20-124.3. Determinations of custody and visitation based upon the statutory factors are clearly legal conclusions. However, the challenged testimony does not suggest that the experts based their recommendations on the statutorily required factors. The recommendations from the mental health experts who testified were professional determinations, not legal conclusions. Accord M.E.D. v. J.P.M., 3 Va. App. 391, 407, 350 S.E.2d 215, 225 (1986) (). Therefore, we hold that the circuit court did not abuse its discretion in allowing the witnesses to provide their custody and visitation recommendations.
The mother contends that Dr. Nelson's report and testimony improperly relied on inadmissible hearsay from Dr. Bowers. The father argues that the bases for Nelson's conclusions were properly admitted into evidence. He alternatively suggests that any error was harmless because any inappropriate references to Bowers' evaluation did not affect the decision.
Nelson documented her psychological evaluation of the mother in a twenty-nine-page report. She considered numerous materials for the purpose of her examination, including apsychological evaluation by Dr. Bowers. Nelson's report included a written summary from Bowers stating that the mother "seem[ed] obsessed with her children and it [was] very difficult for her to put this entire situation in a context that allows both [her] and her husband to be co-parents with a respect for the role they must play together and as individuals." Nelson wrote in the report that she shared Bowers' concerns about the mother's "narcissistic personality features."
The mother objected to the admission of portions of Nelson's report that relied on statements by other mental health professionals, contending that they were hearsay. The circuit court admitted the report into evidence. In addition, Nelson testified about her evaluation of the mother and the mother's relationship with her children. Nelson stated during direct examination that "[t]he psychological testing that was done by both myself and Dr. Bowers, as well as my observations and information from Dr. Bowers, indicate that [the mother] ha[d] issues with what I would call narcissism." She specifically noted that the mother consistently believed that she was correct and as a result...
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