W.E.F. v. C.J.F., s. 54917

• Decision Date: 12 June 1990
• Docket Number: Nos. 54917,54919,s. 54917
• Citation: 793 S.W.2d 446
• Parties: In re the Marriage of W.E.F., Respondent/Cross-Appellant, v. C.J.F., Appellant/Cross-Respondent.
• Court: Missouri Court of Appeals

Page 446

793 S.W.2d 446

In re the Marriage of W.E.F., Respondent/Cross-Appellant, v. C.J.F., Appellant/Cross-Respondent.

Nos. 54917, 54919.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 12, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 8, 1990.

Application to Transfer Denied Sept. 11, 1990.

Theodore S. Schechter, Bruce Elliot Friedman and Cynthia Ann Sobel, Clayton, for appellant/cross-respondent.

Chester Arthur Love, Jr., Daniel P. Card, II, Bryan L. Hettenbach, and Allan F. Steward, Clayton, for respondent/cross-appellant.

GRIMM, Judge.

A dissolution case. ¹ Wife's brief contains seven points relied on. Through different points, she basically complains that the trial court erroneously awarded primary custody of the children to husband, abused its discretion in the division of property, failed to award interest on installment payments, and awarded her an inadequate amount for attorney fees.

Husband filed a cross-appeal. His brief contains five points relied on. His complaints concern the valuation of assets and the allocation of debts, as well as the amount awarded wife for attorney fees. We modify the judgment by awarding interest on installment payments and reducing the value of two notes. As modified, the judgment is affirmed.

The parties were married on January 1, 1976. They have two daughters; one now ten, the other almost seven years of age. The trial court found that the parties separated on August 14, 1986. The next day, husband filed a petition for dissolution. In due time, wife filed her answer and cross-petition for dissolution.

Wife's Appeal

I. Late Disclosure of Experts

For her first point, wife alleges the trial court erred in overruling her motion to exclude husband's experts and in permitting them to testify. She contends that their disclosure a week prior to trial caused her to suffer substantial prejudice in that she was unable to respond to two witnesses testimony on the custody issue. Further, she was "compelled to incur substantial additional costs in attorneys fees and in expert witness fees." She suggests that the appropriate relief would be a new trial on the custody issue and an award of attorney fees and expert witness fees.

Wife propounded interrogatories on September 18, 1986, including one asking the identification of each expert witness expected to be called at trial. Husband responded, "Not yet determined; will be supplied."

On March 2, 1987, the case was given a number one setting for the week of May 11, 1987. On May 4, 5, and 8, husband notified wife of his experts by hand-delivered letters. ² Twenty-one experts were identified; four pertained to child custody, the other seventeen to financial aspects.

Trial began on May 11. Before hearing testimony, the trial court took up "motions that have been filed over the weekend and this morning." Among those motions was wife's motion to strike the experts endorsed the previous week, with the further request that they not be allowed to testify. Following a lengthy discussion, the court overruled the motion.

A trial court has broad discretion in the admission or exclusion of testimony when it is challenged on the basis that it was not properly disclosed by answers to interrogatories. McClanahan v. Deere & Company, 648 S.W.2d 222, 230 (Mo.App.S.D.1983). On review, an appellate court determines whether the trial court has abused its discretion in either admitting or rejecting the testimony. If such discretion was abused, we must determine if the trial court erred by either imposing, or refusing to impose, sanctions. See State ex rel. Missouri Highway & Transp. Comm'n v. Pully, 737 S.W.2d 241, 246 (Mo.App.W.D.1987). "The object of sanctions should be to prevent the party who fails to comply with the rule from profiting by [its] own violation." Missouri State Park Bd. v. McDaniel, 473 S.W.2d 774, 776 (Mo.App.S.D.1971) (quoting Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.W.2d 110, 115 (1963)).

A.

We consider first the property valuation experts. None of husband's property valuation experts testified before May 18. On that day, wife's attorney renewed his motion to exclude the expert witnesses disclosed to him the week of May 4. He brought the case of Ellis v. Union Elec. Co., 729 S.W.2d 71 (Mo.App.E.D.1987) to the court's attention, noting that the slip opinion was handed down May 12.

The transcript contains 32 pages of discussion concerning wife's motion and the effect of Ellis on the proceedings. At the 26th page of these discussions, when little agreement was being reached as to how to proceed, the trial court said: "I'm just going to recess this trial till [all of the valuation expert's depositions] get done." The judge commented that he did not think there was a "choice in view of Ellis."

The trial court then had a brief recess. Following that recess, the court put on the record "what we've concluded." They agreed that one more witness would be heard that morning. That afternoon, the deposition of Dr. Monteleone, husband's child custody witness, would be taken. Further, husband agreed not to use two other custody witnesses, Dr. Ed Dodson and a Dr. Singer. The attorneys anticipated that they would conclude the custody portion of the case the following week.

The court would then take a week's recess to allow the taking of the valuation experts' depositions. All of the attorneys agreed with this procedure. This procedure was established with the understanding that wife's original objections were not being waived.

We do not condone the actions of husband's attorney in failing to timely advise wife's attorney of the names of his expert witnesses. Rule 56.01 requires that information be "seasonably" given. Common courtesy among counsel requires the same thing. As all trial attorneys know, the trial of a case is hard work. Attorneys should not have to take discovery depositions at night and on weekends during trial, especially when compliance with the rules could prevent that hardship.

In Ellis, this court said "untimely disclosure or nondisclosure is so offensive to the underlying purpose and intent of discovery rules that prejudice may be inferred unless, under the circumstances of a particular case, such an inference is dissipated." Id. at 75.

Here the inference is dissipated. As one would expect, the parties' property valuation testimony sharply conflicted. The trial court accepted wife's evidence on the issue of value. Thus, husband did not profit by his late disclosure of the property valuation experts. And, wife did not sustain any prejudice from their testimony.

B.

We turn now to the child custody experts, Dr. James Monteleone and Dr. Sandra Dodson. At the hearing on wife's initial motion to strike, husband's attorney pointed out that Dr. Dodson testified at the pendente lite hearing. Also, wife's attorney had cross-examined Dr. Dodson and had a copy of her testimony.

Dr. Dodson testified on May 14. Her testimony takes up 76 pages in the transcript. Although she is a pediatrician, she was not the children's pediatrician. Rather, she and her husband were friends of husband and wife. They saw husband and wife socially approximately once or twice a month. On about half of these occasions, they would also see the parties' children.

Our reading of her testimony indicates that the great majority of it was "lay" testimony. Occasionally, however, husband's attorney did ask for an opinion based on a reasonable degree of medical certainty. We find any inference of prejudice dissipated because; (1) wife's attorney had cross-examined her during the prior PDL hearing, (2) he had a transcript of her prior PDL testimony, (3) the trial court's findings neither refer to her by name or any of the evidence she gave, and (4) in after-trial motions, the judge commented that he considered her "more of a buddy [of husband] than a doctor."

Dr. Monteleone was husband's other expert custody witness. The trial court did not abuse its discretion in allowing him to testify because the court ordered that his deposition be taken before he was allowed to testify. Further, the trial court found him to be "a vociferous, patent [husband] partisan," whose testimony was "not credible." As a result, wife sustained no prejudice from his testimony. Wife's first point is denied.

II. Custody of Children

In her second point, wife alleges trial court error in failing to reopen the case with respect to the issue of custody. She states that "the mental health and emotional status of the parties and of the children was and is a substantial issue in this case." She contends she was denied a fair trial; because the court erred in (1) denying her motion for psychiatric/psychological examination of husband, (2) excluding the testimony of Dr. Moisy Shopper, and (3) failing to strike the testimony of Drs. Dodson and Monteleone for untimely disclosure.

A.

Preliminarily, we note that § 452.375.2, RSMo Supp.1989 directs the trial court to "determine custody in accordance with the best interests of the child." The court is further directed to consider "all factors," including eight specific factors. The fifth specific factor concerns the "mental and physical health of all individuals involved."

It will be recalled that trial began on May 11. On June 15, which was the seventeenth day of trial, the guardian ad litem called Dr. Shopper as a witness. Dr. Shopper, a psychiatrist, testified that he initially saw husband on June 2, 1986. He then saw husband four more times. At the doctor's request, husband and wife met with him together once. He then saw wife three times, followed by eight more visits with husband.

When the doctor was asked about his visits with husband, husband objected, asserting his patient/physician privilege. The trial court, relying on State ex rel. Husgen v. Stussie, 617 S.W.2d 414 (Mo.App.E.D.1981), sustained the objection. During a colloquy, the trial judge said "I haven't heard mental...