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v. S.G. (12/8/00) sp-5340
R.M. v. S.G. (12/8/00) sp-5340
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
R.M., )
) Supreme Court No. S-9163
Appellant, )
) Superior Court No.
v. ) 3PA-97-725 CI
)
S.G., ) O P I N I O N
)
Appellee. ) [No. 5340 - December 8, 2000]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. Phyllis A. Shepherd, Law Office of Phyllis A. Shepherd,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
During a visit with their father, Scott Grenville's [Fn.
1] three daughters complained of abuse in the household of the
custodial parent, Rose Marlowe, and her new husband, Michael
Marlowe. Scott sought and received a domestic violence restraining
order and moved for custody of the girls. The superior court set
a custody modification hearing and appointed a child custody
investigator. The court held the hearing, admitted the custody
investigator's report, and determined that the circumstances
justified modification of custody, awarding custody to Scott, and
requiring that Rose's visitation with her daughters be supervised.
Rose appeals. Because we find that the trial court's factual
findings were not clearly erroneous and its legal conclusions were
correctly reached, we affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
Rose Marlowe and Scott Grenville ended their nine-year
marriage in 1997. The terms of their dissolution reflected the
parties' agreement that Rose have full physical and legal custody
of their three daughters. During the marriage Rose and her mother
provided primary care to the children, while Scott frequently
worked nights as a manager at a fast food restaurant.
Shortly after the dissolution, Rose remarried. Rose did
not tell Scott of her remarriage for several months.
The parties failed to agree on a specific visitation
schedule in their dissolution, but resolved to work things out
amicably. Accordingly, in the summer of 1998, Rose permitted Scott
to take the children to Arizona for an extended visit with Scott's
relatives. During the visit the children made allegations that
physical abuse occurred in Michael and Rose's household.
Scott subsequently sought and received a domestic
violence restraining order. The order granted him temporary
custody, allowed Rose to have supervised visitation with the
children, and barred Michael's presence during visitation. A
hearing was scheduled to review the order, but was postponed when
Rose consolidated the domestic violence and dissolution cases. She
asked for the return of the children to her custody in Alaska.
Scott then sought full custody of the children, claiming that
Rose's remarriage and Michael's alleged abuse constituted a
material change in circumstances.
Superior Court Judge Beverly W. Cutler ordered the
children returned to Alaska and appointed a custody investigator,
Dr. Melinda Glass. Dr. Glass conducted a thorough investigation
and issued a sixty-two page report. She recommended awarding Scott
full custody with Rose receiving short periods of supervised
visitation.
In the custody hearing, the superior court considered
extensive evidence, including Dr. Glass's testimony and report.
The court found a substantial change in circumstances resulting
from Michael's extreme physical discipline of the children. The
court considered evidence that Michael had spanked the children
with objects including a belt, a metal spoon, and a spatula, and
that one child had been spanked hard enough to cause bleeding. The
court concluded that Michael had engaged in unacceptable corporal
punishment. The court found Rose to be a capable physical
custodian. But it also found that Rose condoned her husband's
behavior. As a result, the court found, the children validly
feared that their mother would not protect them from Michael. In
light of the children's preferences, the evidence of inappropriate
physical punishment by Michael, and the finding of Rose's inability
to foster a loving relationship between the children and Scott, the
court concluded that Scott's custody would serve the children's
best interests. The court also found that Rose's visitation should
be supervised. Rose appeals.
III. STANDARD OF REVIEW
"Courts typically review discovery orders under the abuse
of discretion standard." [Fn. 2] And "[t]he standard of review of
a trial court's decision to admit evidence is abuse of discretion."
[Fn. 3]
We "will reverse a trial court's resolution of custody
issues only if this court is convinced that the record shows an
abuse of discretion or if controlling factual findings are clearly
erroneous." [Fn. 4]
IV. DISCUSSION
A. Procedural Issues
Rose raises three procedural challenges to the superior
court's decision. First, she claims that by failing to order the
custody investigator to release the raw data from Scott's
psychological tests the court foreclosed Rose's opportunity to
challenge the investigator's conclusions. Second, Rose argues that
she was unable to adequately cross-examine the custody investigator
because the court did not allow her to depose Dr. Glass without
paying a substantial fee in advance. Finally, Rose argues that the
court admitted hearsay statements through the custody
investigator's report.
1. Release of custody investigator's psychological
testing data
Both prior to and during the modification hearing, Rose
sought access to raw data from the custody investigator's
psychological tests of Scott Grenville. Dr. Glass, citing the
ethical obligations of her profession, refused to release the data
to anyone but a qualified mental health care professional. For the
same reason, Dr. Glass required Scott Grenville's permission to
release his test data. Although Rose sought to compel discovery
and release of the data, the court did not rule on Rose's motion
because Scott indicated that he would consent to release the data
directly to Rose's expert, Dr. Bruce Smith. Scott soon changed his
mind and informed Rose, by letter, that he would not consent to
release the data after all. Rose never obtained a printed record
of the information she sought, although Dr. Glass disclosed some of
the data underlying Scott's test results in her hearing testimony.
Rose argues that her inadequate access to Scott's
psychological test data unfairly deprived her of the opportunity to
have her own expert analyze the data and offer an opinion.
However, she did not take reasonable steps to remedy her situation
once she learned of Scott's refusal to release the data. Upon
learning that Scott would not authorize the data's release to her
expert, Rose could have renewed her motion to compel its
production. She also could have requested a continuance in order
to have time to seek independent evaluation of the data. She did
neither, [Fn. 5] but instead moved to exclude from evidence Dr.
Glass's entire testimony and report. The superior court correctly
refused to grant this extreme and inappropriate remedy.
We have discussed appropriate sanctions for inadequate
discovery responses in cases interpreting Alaska Civil Rule 37.
Rule 37 limits a court's power to "make an order that has the
effect of establishing or dismissing a claim or defense or
determining a central issue in the litigation." [Fn. 6] It also
promotes narrowly tailored sanctions by requiring courts to
consider "whether a lesser sanction would adequately protect the
opposing party and deter other discovery violations." [Fn. 7] Rule
37 is "the principal source of sanctions for inadequate discovery
responses." [Fn. 8] Its principles are appropriately applied
where, as here, a party reneges on an oral commitment to provide
evidence.
We have repeatedly interpreted Rule 37 to preclude
extreme remedies for relatively minor discovery violations. [Fn. 9]
For example, in Wasserman v. Bartholomew, [Fn. 10] we reviewed a
trial court's exclusion of the testimony of a non-party witness who
had refused to disclose information sought by a party. We held
that exclusion of testimony is not an appropriate or effective
sanction for a recalcitrant non-party witness. [Fn. 11] This
conclusion is even more compelling where an expert witness
appropriately refuses to release raw test data absent the test
subject's consent or a court order. When Scott informed Rose that
he would not release the test data, Rose could have requested that
the superior court order its release to Rose's chosen expert.
Depriving the court of the ability to consider the custody
investigator's entire report and testimony as a sanction for
Scott's misbehavior would frustrate the purpose of Rule 37, which
is "to effectuate the discovery process" and "to ensure that an
individual may have a just determination of his case upon the
merits." [Fn. 12] In Wasserman we held that, "[b]ecause [the
witness] was not a party, and because the defendants did not seek
an order to compel her deposition testimony," the trial court
abused its discretion by excluding the witness's testimony. [Fn.
13] Total exclusion of Dr. Glass as a witness similarly would not
have been appropriate here. The superior court correctly refused
to grant this extreme remedy, and cannot be held responsible for
Rose's failure to seek more reasonable relief.
Rose has presented no basis for us to conclude that a
less extreme sanction than the proposed exclusion of Dr. Glass's
testimony and report would have been ineffective. [Fn. 14] Once
Rose learned that the court declined to exclude Dr. Glass's
testimony, she should have sought a more narrowly tailored remedy
by moving to compel production of the data and moving for a
continuance to provide her own expert time to analyze the data.
Even if the trial court could have fashioned such a
remedy of its own accord, compelling release of the test data would
probably not have affected the modification hearing's outcome. As
Judge Cutler pointed out, a "huge amount of information" concerning
the welfare of the children was available to both the court and the
parties. In Dr. Glass's sixty-two-page report, discussion of
Scott's test results occupies only three paragraphs -- and the
picture that these paragraphs paint of Scott is not a favorable
one. The trial court recognized the relative insignificance of the
disputed data by stating that it would not attribute much weight to
the raw numbers. As the trial court's findings make clear, the
behavior of the parties, not psychological profiling, persuaded the
court to modify the custody award. The court found that Michael
engaged in unacceptable corporal punishment, that the children felt
unprotected by Rose, and that the children were suffering emotional
damage as a result. These findings alone adequately support the
superior court's conclusions; conflicting expert interpretations of
the raw psychological test data would not have been likely to alter
this outcome.
2. Payment for deposition of the custody investigator
Rose also alleges that the superior court abused its
discretion by requiring that she pay Dr. Glass's $1,200 fee before
deposing the custody investigator. Rose had agreed to pay the
custody investigator up to $600 for deposition time, but objected
to paying an additional $600 for time Dr. Glass spent reviewing her
notes prior to deposition. The court ruled that if Rose wished to
conduct a deposition of Dr. Glass -- which the court believed was
unnecessary to fair resolution of the issues and which went beyond
the parties' original division-of-payment agreement for the custody
investigator -- Rose would have to pay Dr. Glass in advance. The
high cost, Rose contends, effectively deprived her of the
opportunity to take Dr. Glass's deposition.
Alaska Rule of Civil Procedure 26(b)(4)(C) provides
guidelines for payment of experts, [Fn. 15] stating that "[u]nless
manifest injustice would result . . . the court shall require that
the party seeking discovery pay the expert a reasonable fee for
time spent in responding to discovery." Rose has neither argued
nor demonstrated that the $1,200 fee constituted a "manifest
injustice." Thus, we conclude that the superior court did not
abuse its discretion in requiring payment.
3. Admission of facts contained in the custody
investigator's report
Rose contends that the superior court inappropriately
admitted and considered hearsay in Dr. Glass's report.
Specifically, she argues that while Dr. Glass legitimately relied
upon the children's statements in forming her expert opinion, the
court erred in considering these statements for the truth of the
matters asserted. Yet Rose did not object to the admission of Dr.
Glass's report or the hearsay statements it contained at the time
it was proffered and admitted. [Fn. 16] In fact, she raised this
objection for the first time in her closing argument to the
superior court. And although Rose argues that hearsay statements
offered by her own witnesses were unfairly excluded, Judge Cutler
repeatedly indicated that she excluded that testimony in part
because "the court's just going to rely on Dr. Glass to have heard
everybody's statements about what the girls said and so forth."
Even upon these expressions of the court's intent to rely upon the
children's statements in Dr. Glass's report for the truth of the
matters asserted, Rose never objected.
Alaska Rule of Evidence 103 requires a "timely objection
or motion to strike . . . stating the specific ground of
objection." [Fn. 17] Because Rose did not properly raise her
objection below, she has waived it on appeal. [Fn. 18] "Ordinarily
an issue which was not raised in the trial court will not be
treated on appeal." [Fn. 19]
B. Modification of Primary Custody
Rose challenges the superior court's decision to modify
custody. She argues that the evidence does not support the
conclusions required by AS 25.20.110(a) prior to modification: that
circumstances have changed and that modification is in the best
interests of the child.
Rose's brief raises five specific challenges to the
superior court's interpretation of evidence. In two instances, she
questions the trial court's determinations of witness credibility.
First, she argues that because Dr. Glass had too little experience
the court should not have relied on her conclusions. Second, she
contends that the court should have given greater weight to the
Marlowes' own testimony that they no longer used corporal
punishment. But the superior court considered the credibility of
all of the witnesses, and made explicit findings as to the
credibility of Rose's and Michael's testimony. We defer to the
trial court's determination of witness credibility; the trial court
appropriately decides what weight to afford witness testimony. [Fn.
20]
Rose also challenges the trial court's factual findings.
She argues that evidence does not support the court's conclusion
that Rose acted to alienate Scott. She also argues that the record
inadequately supported the court's conclusions that Michael
inflicted corporal punishment. Both of these allegations implicate
a core competence of the trial court as finder of fact. Absent a
showing of clear error, we will not reverse the superior court on
these grounds. [Fn. 21] Here, the court cited ample evidence in
support of its conclusions, including the testimony of the
children's grandmother, Michael's own testimony, Dr. Glass's
report, and previous investigations by the Division of Family &
Youth Services. We find no error in the superior court's
assessment of the evidence.
Finally, Rose claims that the court "simply ignored"
evidence of Scott's poor parenting. In fact, the court referred
twice in its findings to improvements in Scott's parenting skills,
and cited this change as one reason for granting him custody. This
suggests that the court did not ignore Scott's earlier problems,
but rather weighed the evidence to conclude that the best interests
of the children would be served if he had custody. This conclusion
was well supported and not clearly erroneous. [Fn. 22] We reject
Rose's challenge and affirm the superior court.
C. Supervised Visitation
Rose also challenges the trial court's order that Rose's
visitation with her children be supervised. We have stated that
"while unrestricted visitation is the norm, supervised visitation
can be required when the court makes findings which specify why
unsupervised visitation is contrary to the best interests of the
child." [Fn. 23] In this case the superior court made specific
findings about the relationship between Rose and her children. It
relied on those findings to determine that supervised visitation
was appropriate. The court found that Rose's new husband engaged
in inappropriate discipline of the children, Rose condoned
Michael's conduct, the children felt unprotected by Rose from
Michael's conduct, and Rose continued to be in a "state of denial"
about what has happened to her children. In its holding on
supervised visitation, the court emphasized that because of the
emotional damage Rose had caused, she would have to rebuild her
relationship with her children. The court recommended a flexible
plan for later expanded visitation.
As Rose points out in her brief, we remanded grants of
limited or supervised visitation in I.J.D. v. D.R.D. [Fn. 24] and
in J.F.E. v. J.A.S. [Fn. 25] In both of those cases, however, we
remanded because the court below failed to support its holding with
specific factual findings. [Fn. 26] By contrast, the superior
court in this case provided ample specific findings about the need
to protect the children from further emotional damage. We see no
error in those findings, and affirm the superior court's decision
to require supervised visitation. [Fn. 27]
V. CONCLUSION
The trial court did not err in its treatment of Dr.
Glass's raw data, nor did it err in requiring payment for
deposition of the custody investigator. Rose Marlowe's objection
to the hearsay contained in the custody investigator's report was
not made in a timely manner and so was waived. Neither the court's
order for modification of primary custody nor its order for
supervised visitation constituted abuse of discretion, and neither
relied on clearly erroneous controlling factual findings.
Therefore we AFFIRM the superior court.
FOOTNOTES
Footnote 1:
All party names have been replaced with pseudonyms for the
purpose of publication.
Footnote 2:
Municipality of Anchorage v. Anchorage Daily News, 794 P.2d
584, 594 n.19 (Alaska 1990) (citing Voegeli v. Lewis, 568 F.2d 89,
96 (8th Cir. 1977)).
Footnote 3:
Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska 1986).
Footnote 4:
Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982) (citing
Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977)).
Footnote 5:
Although Rose's counsel asserted at oral argument that he had
requested a continuance in the superior court, that request did not
relate to the test data. Instead, counsel made the request
"entirely" for the purpose of rebutting claims raised by the
children's grandparents.
Footnote 6:
Alaska R. Civ. P. 37(b)(3).
Footnote 7:
Alaska R. Civ. P. 37(b)(3)(D).
Footnote 8:
Wasserman v. Bartholomew, 923 P.2d 806, 811 (Alaska 1996)
(considering whether trial court excluded testimony as discovery
sanction under Rule 37, where trial court did not explicitly cite
rule).
Footnote 9:
See, e.g., Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225,
227 (Alaska 1996) (requiring consideration of "meaningful
alternative sanctions"); Underwriters at Lloyd's London v. The
Narrows, 846 P.2d 118, 121 (Alaska 1993) (requiring trial court to
conduct reasonable exploration into less drastic sanctions).
Footnote 10:
923 P.2d 806 (Alaska 1996).
Footnote 11:
Id. at 812.
Footnote 12:
Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 147 (Alaska
1971).
Footnote 13:
923 P.2d at 812.
Footnote 14:
See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1171
(Alaska 1998) (reversible error where trial court precluded expert
witness testimony as sanction for untimely submission of witness
list).
Footnote 15:
A custody investigator such as Dr. Glass is considered an
expert for purposes of this rule. See Alaska R. Civ. P. 90.6(a)
("[T]he court may appoint the court custody investigator to conduct
the investigation and provide an expert opinion."); cf.Borchgrevink
v. Borchgrevink, 941 P.2d 132, 143 n.4 (Alaska 1997)
(describing state custody investigator as an expert witness); Evans
v. Evans, 869 P.2d 478, 480 (Alaska 1994) (considering custody
investigator an expert witness). But see Lythgoe v. Guinn, 884
P.2d 1085, 1087-88 (Alaska 1994) (concluding that trial court may
grant custody investigator quasi-judicial immunity).
Footnote 16:
We do not consider Rose's broad motion in limine against
admission of Dr. Glass's entire report and testimony a hearsay
objection.
Footnote 17:
Alaska R. Evid. 103(a)(1).
Footnote 18:
See Williams v. Utility Equip., Inc., 837 P.2d 1112, 1116-17
(Alaska 1992) (holding objection waived where plaintiff failed to
make specific objections when testimony presented).
Footnote 19:
Preblich v. Zorea, 996 P.2d 730, 736 n.17 (Alaska 2000)
(quoting Padgett v. Theus, 484 P.2d 697, 700 (Alaska 1971)).
Footnote 20:
See Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).
Footnote 21:
See Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska 1982).
Footnote 22:
See id. (applying clearly erroneous standard for review of
factual findings).
Footnote 23:
Monette, 958 P.2d at 436 (quoting J.F.E. v. J.A.S., 930 P.2d
409, 409 (Alaska 1996)).
Footnote 24:
961 P.2d 425, 432 (Alaska 1998).
Footnote 25:
930 P.2d 409, 413-14 (Alaska 1996).
Footnote 26:
See I.J.D., 961 P.2d at 432; J.F.E., 930 P.2d at 414.
Footnote 27:
See Monette, 958 P.2d at 436.
