Opinion
No. M2005-01688-COA-R3-CV.
April 26, 2006 Session, January 9, 2007 Session.
Filed April 9, 2008.
Appeal from the Chancery Court for Sumner County; No. 2002D-208; Tom E. Gray, Chancellor.
Judgment of the Chancery Court Affirmed.
Karla C. Hewitt, Nashville, Tennessee, (on appeal) for the appellant, Tamara Y. Smith.
Robert G. Ingrum, Gallatin, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Barry D. Smith.
William C. Koch, JR., P.J., M.S., delivered the opinion of the court, in which Patricia J. Cottrell, J., joined. Jerry Scott, SR. J., filed a separate dissenting opinion.
OPINION
This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties' request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist's report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney's fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist's reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court's designation of the father as the primary residential parent and that the trial court did not err by denying the mother's request for attorney's fees.
I.
Barry D. Smith and Tamara Y. Smith began dating in late 1994. Both of them had been married before, and Mr. Smith had two children from his previous marriage. Their only child, a daughter, was born in January 1996. Despite their stormy relationship, the parties were married in December 1999. Mr. Smith continued to work at his concrete business, while Ms. Smith stayed at home to serve as their daughter's primary caregiver.
The parties separated in May 2002, and one week later, Mr. Smith filed a complaint in the Chancery Court for Sumner County seeking a divorce on the grounds of inappropriate marital conduct and irreconcilable differences. In December 2002, Ms. Smith filed an answer and a counterclaim seeking a divorce on the grounds of inappropriate marital conduct and irreconcilable differences. Both parties requested the trial court to designate them as their child's primary residential parent. Each party leveled accusations of misconduct and psychological instability at the other. Of particular concern, Ms. Smith accused Mr. Smith of physically abusing her and the parties' child and also asserted that Mr. Smith had sexually abused their child.
On February 28, 2003, the parties prepared and filed an agreed order establishing supervised visitation for Mr. Smith and the parties' child. The order mandated psychological examinations for the parties and their child and psychosexual evaluations of both Mr. Smith and Ms. Smith. The parties left it to the trial court to select an expert to conduct these evaluations. Accordingly, they included a blank line in their agreed order where the trial court could insert the name of the expert. After talking with several mental health professionals, the trial court appointed Dr. Victor Pestrak, a licensed clinical psychologist, to conduct the examinations. The trial court filed the agreed order containing Dr. Pestrak's name on March 26, 2003.
Dr. Pestrak conducted his evaluations in May and June of 2003. Both parties received copies of his reports, and copies were also filed under seal with the trial court. Dr. Pestrak's reports stated that he "[did] not find any claims of sexual abuse to hold up to even modest scrutiny when data from all three parties [was] examined." The reports also noted that the child "is suffering and the evidence strongly suggests it [is] not due to any sexual abuse. Rather, it lines up with what we see when a conscious or unconscious effort is made by one parent [the mother] to alienate the child from the other parent." Dr. Pestrak determined that the child should be involved in counseling to aid her in processing her parents' divorce, and he concluded that "there is no evidence from these evaluations that any parental visitation needs to be supervised."
Neither party attempted to interview or depose Dr. Pestrak after receiving copies of the reports that had been filed under seal. As the litigation proceeded, Ms. Smith changed attorneys twice, and the trial court conducted several hearings in response to Mr. Smith's requests for increased visitation. The trial court, without objection from the parties or their lawyers, relied upon Dr. Pestrak's reports in its ruling on these visitation matters.
When the case was finally set for trial, Mr. Smith's lawyer informed Ms. Smith's lawyer that he intended to rely on Dr. Pestrak's reports as part of this case. Ms. Smith's lawyer did not notice Dr. Pestrak for a deposition, obtain a subpoena to require Dr. Pestrak to testify in person, or seek a continuance. However, during the trial, which took place over the course of four days in March and April 2005, Ms. Smith's lawyer objected to the introduction and use of Dr. Pestrak's reports on the grounds that they were hearsay, that Dr. Pestrak's appointment did not comply with Tenn. R. Evid. 706, and that he had not been able to cross-examine Dr. Pestrak. The trial court overruled Ms. Smith's objections and admitted Dr. Pestrak's 2003 reports.
On April 26, 2005, the trial court handed down a partial judgment from the bench. The court determined that both parties were guilty of inappropriate marital conduct and declared them divorced. The court divided the marital estate and denied Ms. Smith's request for alimony and attorney's fees. The trial court reserved judgment on a determination of custody, and on June 8, 2005, the court filed a memorandum opinion designating Mr. Smith as the primary residential parent. The trial court filed its final decree of divorce on June 14, 2005. Ms. Smith has appealed.
II. THE ADMISSIBILITY OF DR. PESTRAK'S REPORTS
Ms. Smith renews her arguments that Dr. Pestrak's reports were inadmissible because they were not made under oath and because Dr. Pestrak was not called to testify at trial. Mr. Smith asserts that Ms. Smith waived her opportunity to object to the use of the reports by failing to object when the trial court used them to make interlocutory visitation decisions, by failing to depose Dr. Pestrak, and by failing to subpoena him at trial. Under the facts of this case, we have determined that Ms. Smith failed to question the admissibility of Dr. Pestrak's reports in a timely manner and, therefore, that the trial court did not err by admitting Dr. Pestrak's reports into evidence.
A.
Decisions regarding the admissibility of evidence lie within the discretion of the trial court. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). Therefore, unless the trial court abuses its discretion, appellate courts will not overturn a trial court's rulings on evidentiary matters. State v. Lewis, 235 S.W.3d at 141. The abuse of discretion standard is a review-constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court's decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.Ct.App. 1999). Appellate courts do not have the latitude to substitute their discretion for that of the trial court. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App. 2000). Thus, a trial court's discretionary decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
Discretionary decisions must, however, take the applicable law and the relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). Accordingly, a trial court will be found to have abused its discretion only when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn.Ct.App. 1999). A trial court, by definition, abuses its discretion when it makes an error of law. Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn.Ct.App. 2002).
B.
Ms. Smith relies upon Dover v. Dover, 821 S.W.2d 593 (Tenn.Ct.App. 1991) to support her claim that the trial court erred by admitting and considering Dr. Pestrak's reports over her objection. She asserts that Dover v. Dover stands for the proposition that the report of an expert appointed by a court in accordance with Tenn. R. Evid. 706 can only be admitted and considered if it is submitted under oath and if the parties have had an opportunity either to depose the expert or to subpoena the expert to testify at trial. We have determined that Dover v. Dover does not support Ms. Smith's argument for three reasons.
First, the circumstances in this case are not the same as those in Dover v. Dover. It appears that in Dover v. Dover, unlike this case, the trial court did not provide the parties with a copy of the expert's report prior to the hearing. Thus, with no knowledge of the substance of the expert's report until the day of the hearing, the parties had little recourse other than to object to the introduction of the report.
In this case, however, the parties knew in late March 2003 that Dr. Pestrak had been appointed to conduct the evaluations that they had requested. In addition, they knew by no later than mid-2003 that Dr. Pestrak had completed his evaluations and had submitted his reports to the trial court, and they also knew what his recommendations were because Dr. Pestrak had provided them with copies of the reports. Finally, the trial court and the parties had used these reports, without objection, to address visitation issues that arose prior to the beginning of the trial on March 10, 2005.
Second, we have concluded this court's interpretation of Tenn. R. Evid. 706 in Dover v. Dover was too rigid. The plain language of Tenn. R. Evid. 706 does not state that the only way that a court-appointed expert's opinions may be received into evidence is to call the court-appointed expert as a witness at trial. In this regard, Tenn. R. Evid. 706(a) states that "the [court-appointed] witness's deposition may be taken by any party" and that the "witness shall be subject to examination by each party." It does not say that a court-appointed expert must be deposed or must be cross-examined at trial before the court may consider the expert's opinions.
Dr. Pestrak's identity and the substance of his reports were known by the parties since mid-2003. Either party could have deposed him any time during the eighteen months between the time his reports were filed and the beginning of the trial. He was certainly subject to cross-examination during that time. Had either party desired to cross-examine him on the stand at trial, they could very easily have subpoenaed him to appear personally at trial. Accordingly, we find that the trial court complied with all requirements of Tenn. R. Evid. 706.
The trial court disclosed Dr. Pestrak's identity and spelled out his duties in its March 23, 2006 order as required by Tenn. R. Evid. 706(a) (c). The parties were advised of Dr. Pestrak's findings as required by Tenn. R. Evid. 706(a) when they received copies of his reports in mid-2003. Dr. Pestrak was also available to be deposed and cross-examined beginning in mid-2003 had either party desired to depose or to cross-examine him.
Third, no party in this case has argued, either explicitly or implicitly, that Dr. Pestrak is unqualified or that his methodology, as reflected in his reports to the court, is suspect. There is no objective basis in the record to assume that the conclusions in his reports are suspect. It is clear from this series of events that, at the very least, Ms. Smith waived her right to object to the reports to the extent that they were used as envisioned by the agreed order, i.e., to help determine whether there was adequate evidence that the child had been sexually abused by Mr. Smith. The trial court relied upon the reports as an evidentiary basis for increasing Mr. Smith's visitation with the child during the pendency of the litigation.
Thus, in this case, unlike Dover v. Dover, the parties and the trial court had known about and had relied upon the conclusions in Dr. Pestrak's reports for approximately eighteen months before Ms. Smith objected to their use at trial. Dr. Pestrak was not a surprise witness and his conclusions were well-known to the parties. At no time prior to trial did Ms. Smith object to the continued use of Dr. Pestrak's reports, attempt to depose Dr. Pestrak, attempt to subpoena Dr. Pestrak to testify at the trial, or seek a continuance after Mr. Smith disclosed prior to trial that he intended to rely on Dr. Pestak's reports as part of his case. Parties are not entitled to complain about the prejudicial effect of a trial court's ruling when they failed to take the actions reasonably available to them to prevent or nullify the harmful effect of the ruling. Tenn. R. App. P. 36(a). Ms. Smith's inability to cross-examine Dr. Pestrak was caused by her various lawyers' failure since mid-2003 to object to Dr. Pestrak's reports, to seek to depose Dr. Pestrak, or to subpoena him to testify at trial. Accordingly, we have determined that she cannot raise this issue on appeal.
III. THE DESIGNATION OF MR. SMITH AS THE PRIMARY RESIDENTIAL PARENT
In addition to her argument that the trial court erred by admitting Dr. Pestrak's reports, Ms. Smith insists that the evidence does not support the trial court's designation of Mr. Smith as their child's primary residential parent. The record clearly shows that the trial court based its decision on all the evidence presented during the trial, not simply on Dr. Pestrak's reports. We have concluded that Ms. Smith has failed to demonstrate that the evidence preponderates against the trial court's findings of fact or that the trial court erred in its conclusions.
A.
Prescribing a child's residential schedule is one of the most important decisions confronting a trial court in a divorce case. See Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.Ct.App. 2001). Courts must strive to devise residential schedules that promote the development of the children's relationship with both parents and interfere as little as possible with post-divorce family decision-making. Tenn. Code Ann. § 36-6-401(a) (2005); see also Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32 (Tenn. 1993). The best interests of the children are paramount, while the desires of the parents are secondary. See Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986). A residential schedule should never be used to punish or reward the parents, see Turner v. Turner, 919 S.W.2d 340, 346 (Tenn.Ct.App. 1995); Long v. Long, 488 S.W.2d 729, 733 (Tenn.Ct.App. 1972), but rather should promote the children's best interests by placing them in an environment that will best serve their physical and emotional needs. Tenn. Code Ann. §§ 36-6-401(a),-404(b); see also Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983).
There are no hard and fast rules for devising a residential schedule that will best suit a child's needs. See Taylor v. Taylor, 849 S.W.2d at 327; Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.Ct.App. 1983). The inquiry is factually driven and requires the courts to carefully weigh numerous considerations. Tenn. Code Ann. § 36-6-404(b)(1) to-404(b)(16); see also Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn.Ct.App. 2004); Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn.Ct.App. 1996). Courts customarily devise residential schedules by engaging in a comparative fitness analysis that requires them to determine which of the available custodians is comparatively more fit than the other. See In re Parsons, 914 S.W.2d 889, 893 (Tenn.Ct.App. 1995). This analysis does not measure the parents against the standard of perfection, Earls v. Earls, 42 S.W.3d 877, 885 (Tenn.Ct.App. 2000). Rather, it requires the courts to determine which of the parents, in light of their present circumstances, is comparatively more fit to assume and discharge the responsibilities of being the primary residential parent.
Decisions relating to residential schedules often hinge on subtle factors, including the parents' demeanor and credibility during the divorce proceedings themselves. See Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App. 1997). Accordingly, appellate courts are reluctant to second-guess a lower court's decisions. Courts must be able to exercise broad discretion in these matters, Tenn. Code Ann. § 36-6-101(a)(2)(A)(i) (Supp. 2007), but they still must base their decisions on the proof and upon the appropriate application of the relevant principles of law. See D v. K, 917 S.W.2d 682, 685 (Tenn.Ct.App. 1995). Thus, we review these decisions de novo on the record with a presumption that the lower court's findings of fact are correct unless the evidence preponderates otherwise. Marlow v. Parkinson, 236 S.W.3d 744, 748 (Tenn.Ct.App. 2007); Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn.Ct.App. 2004).
Courts necessarily have broad discretion to fashion residential schedules that best suit the unique circumstances of each case. See Eldridge v. Eldridge, 42 S.W.3d at 85; Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). It is not our role to "tweak [these decisions] . . . in the hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d at 88. A lower court's decision regarding custody or visitation should be set aside only when it "falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Eldridge v. Eldridge, 42 S.W.3d at 88.
Unless a trial court, acting in accordance with Tenn. Code Ann. § 36-6-406 (2005) determines that the use of a permanent parenting plan is inappropriate, all final divorce decrees in cases in which there are minor children must include a permanent parenting plan. Tenn. Code Ann. § 36-6-404(a). The court must "make residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child," Tenn. Code Ann. § 36-6-404(b), using the specific factors listed in Tenn. Code Ann. § 36-6-404(b)(1) to (15), as well as "any other factors deemed relevant" in accordance with Tenn. Code Ann. § 36-6-404(b)(16).
B.
The trial court's June 8, 2005 memorandum opinion contains explicit findings of fact with regard to the relevant factors in Tenn. Code Ann. § 36-6-404(b). These findings of fact reflect that the trial court carefully considered the testimony of Ms. Smith, Mr. Smith, and the parties' child. The trial court also expressly found that portions of Ms. Smith's testimony and the child's testimony lacked credibility. Based on the evidence, the trial court concluded that neither parent was meeting their child's emotional needs and then directed that the parents and the child undergo counseling to address that shortcoming.
The trial court's conclusion that Mr. Smith had not sexually abused his daughter obviated the application of Tenn. Code Ann. § 36-6-406.
In addition, the trial court concluded that Ms. Smith had failed to present sufficient evidence to prove her accusations that Mr. Smith had sexually abused the parties' daughter. The court pointed to several specific behaviors reflecting Ms. Smith's unwillingness to promote a good relationship between Mr. Smith and the parties' child and concluded that these behaviors were unreasonable. Based on these findings, the trial court concluded that the interests of the parties' child would be best served by designating Mr. Smith as the primary residential parent.
We have thoroughly reviewed the record in this matter, especially the testimony of Ms. Smith, Mr. Smith, and the parties' child. The trial court never explicitly cited Dr. Pestrak's reports with regard to his findings and conclusions regarding the designation of a primary residential parent. This record provides no basis for concluding that the trial court's designation of Mr. Smith as the primary residential was not largely based on the testimony presented during the trial. Based on our review of the entire record, we conclude that the evidence does not preponderate against the trial court's findings as thoughtfully related in its order. Accordingly, we decline to disturb the trial court's parenting arrangement.
IV. THE DENIAL OF MS. SMITH'S REQUEST FOR ATTORNEY'S FEES
As a final matter, Ms. Smith asserts that the trial court erred by refusing to award her attorney's fees because she is economically disadvantaged in comparison to Mr. Smith. For his part, Mr. Smith contends that Ms. Smith has sufficient resources to pay her own attorney's fees and, therefore, that the trial court's decision was correct. We find that Mr. Smith has the better argument.
Civil litigants in Tennessee's courts are generally required to be responsible for their own attorney's fees in the absence of a statute or contractual provision otherwise. John Kohl Co. v. Dearborn Ewing, 977 S.W.2d 528, 534 (Tenn. 1998); Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 33 (Tenn.Ct.App. 2002). In domestic relations cases, three of the most common circumstances in which attorney's fees are appropriate include: (1) awards to economically disadvantaged spouses as spousal support, (2) awards to spouses who must return to court to enforce child support obligations, and (3) awards to spouses seeking to enforce a marital dissolution agreement when the agreement contains a provision for attorney's fees. Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn.Ct.App. 2004).
An award of attorney's fees to an economically disadvantaged spouse is usually characterized as alimony in solido. Yount v. Yount, 91 S.W.3d 777, 783 (Tenn.Ct.App. 2002); Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn.Ct.App. 2001). Accordingly, a trial court considering a request for attorney's fees must consider the factors contained in Tenn. Code Ann. § 36-5-121(i)(2005), with the most important factors being the need of the economically disadvantaged spouse and the ability of the obligor spouse to pay. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.Ct.App. 2001). Trial courts customarily will award attorney's fees as alimony when an economically disadvantaged spouse would otherwise be forced to deplete assets in order to pay attorney's fees. Koja v. Koja, 42 S.W.3d 94, 98 (Tenn.Ct.App. 2000); Palmer v. Palmer, 562 S.W.2d 833, 839 (Tenn.Ct.App. 1977). Therefore, a party need not be required to pay legal expenses out of funds and assets awarded by the trial court and intended to provide future support and income. Batson v. Batson, 769 S.W.2d 849, 862 (Tenn.Ct.App. 1988).
Awards of attorney's fees as alimony in solido are largely discretionary with the trial court. Thus, the appellate courts will ordinarily not interfere with an alimony in solido award for attorney's fees unless the trial court did not appropriately exercise its discretion based on the facts. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995); Eldridge v. Eldridge, 137 S.W.3d 1, 25 (Tenn.Ct.App. 2002). A trial court fails to exercise its discretion properly when its decision is not supported by the evidence, when it applies an incorrect legal standard, or when it reaches a decision which is against logic or reasoning that causes an injustice to the party complaining. Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005). Two of Ms. Smith's former attorneys have placed liens on her judgment totaling $16,331.70. Ms. Smith's portion of the marital estate consists of approximately $61,000 in a combination of cash and investments, in addition to a BMW vehicle valued at approximately $4,000 and what is, apparently, several thousand dollars worth of personal property and jewelry. The record does not indicate that Ms. Smith was made responsible for any marital debt, and Ms. Smith has not raised an issue with regard to the division of the marital estate.
The marriage was of a very short duration — only twenty-eight months passed between the wedding and Mr. Smith's filing for divorce. During the marriage, Mr. Smith worked while Ms. Smith stayed home. After the parties' separation and up through the trial, Mr. Smith paid Ms. Smith almost $2,000 per month for living expenses and child support, in addition to paying for their child to attend private school. Meanwhile, Ms. Smith began working in March 2003 — ten months into the five years of litigation that have comprised this divorce. Ms. Smith had completed two years of college prior to the marriage and was enrolled in college during the litigation of this case. As of the trial, Ms. Smith was employed with the State of Tennessee, grossing approximately $18,072 annually. She is responsible for child support payments of $139 monthly. There is no indication in the record that Ms. Smith is anything other than an able-bodied person who can expect an additional twenty years of a working career. While it is true that the parties have a great disparity in post-divorce income, considering all the evidence presented at trial, we cannot say that the trial court abused its discretion by failing to award Ms. Smith her attorney's fees.
Mr. Smith's gross income is approximately $14,000 per month.
V.
The judgment of the trial court is affirmed. We tax costs to Ms. Smith for which execution, if necessary, may issue.
I respectfully dissent from the majority's conclusion that Dr. Victor A. Pestrak's report was properly admitted and that this Court's interpretation of Rule 706 of the Tennessee Rules of Evidence in Dover v. Dover, 821 S.W.2d 593, 595 (Tenn.Ct.App. 1991), is too rigid. I submit that the majority's decision ignores the strict requirements of Rule 706 and opens the door for abuse of that rule.
Rule 706(a) of the Tennessee Rules of Evidence allows the court to appoint an expert witness in bench-tried cases sua sponte or on motion of any party and specifically sets forth the procedures the court shall follow to appoint and utilize such an expert. Rule 706(a) states:
The court may not appoint expert witnesses of its own selection on issues to be tried by a jury except as provided otherwise by law. As to bench-tried issues, 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 ordinarily should appoint expert witnesses agreed upon by the parties, but in appropriate cases, for reasons stated on the record, the court may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness's 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 the witness's findings, the witness's deposition may be taken by any party, and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
This case involves the custody of a little girl who has been placed in the home of her father who was accused of improperly touching her. The very experienced trial judge decided to appoint an expert to determine whether the father was a man who would be likely to commit the acts of which he was accused. After several psychologists and psychiatrists turned the judge down, he found Dr. Pestrak and appointed him as the court's expert witness. The judge stated that Dr. Pestrak had "good credentials." However, Dr. Pestrak's credentials do not appear anywhere in the record, and the record is unclear as to whether the parties or the Court really knew anything at all about Dr. Pestrak's qualifications.
After being appointed, Dr. Pestrak performed evaluations of the parties and the child and submitted a copy of his report to the Court with copies to counsel for both parties. When the report was offered into evidence by the father's counsel, the mother's counsel timely objected to its admission. However, the trial judge overruled the objection stating that he had relied on the report in prior hearings. The majority's opinion implies that the parties knew at the time of the prior hearings that the trial judge relied on the report, and therefore, waived any right to object. However, there are no transcripts of the prior hearings in the record, and it is not shown anywhere in the record that the parties knew that the trial judge had relied on the report prior to it being offered as evidence.
No order to show cause why an expert witness should not be appointed was entered as required by Rule 706(a). The court did not request the parties to submit nominations. However, the Rule does not require such nominations. It only provides that nominations may be submitted.
Rule 706(a) further provides that a court appointed expert witness should be agreed upon by the parties, but in appropriate cases, for reasons stated in the record, the court may appoint an expert of its own selection. Here the parties agreed that the judge could appoint the expert, but there was no evidence of an agreement to waive any of the other requirements of Rule 706(a).
Rule 706(a) further requires that the expert can only be appointed if the expert agrees. He obviously agreed. The next step mandated by the Rule is that a witness so appointed shall be informed of the expert witness' duties by the court in writing, a copy of which shall be filed with the clerk of the court, or the expert may be advised of his duties at a conference in which the parties shall have an opportunity to participate. That step was skipped entirely. There is no statement of duties in the record and no evidence that a conference was held.
Next, the expert witness is required to advise the parties of the witness' findings, which this witness apparently did. The witness' deposition may be taken by any party and the expert witness may be called to testify by the court or any party. Neither party deposed the expert witness nor was he called to testify by the court or either party. Of course, the party that the expert witness would testify against would not be expected to call him. The party who was recommended in the expert witness' report as the custodial parent would not want to call the expert witness for fear he might equivocate in his testimony or even change his opinion under cross-examination. That only leaves the judge as the one to call the expert witness to testify.
The final requirement and the one that is most crucial is that the "witness shall be subject to cross-examination" by all parties. Tenn. R. Evid. 706(a) (emphasis added). Since the judge did not summon the witness to the court to testify, there simply was no opportunity for cross-examination in this case.
As pointed out in the majority opinion this was a protracted divorce case with great acrimony between the parties. Several changes of counsel occurred during the proceedings. There is no transcript of any of the preliminary proceedings, so this appellate court has no record of what was said by anyone at the prior hearings.
The parties left it up to the judge to find an expert. The judge said that he called several psychologists and psychiatrists before he could find anyone who would conduct the examination. It is not known what the judge told the psychologist or what the psychologist said to the judge. It is not known whether the judge told the parties he was relying on the psychologist's report when making preliminary rulings. It is clear that the judge failed to follow the required procedure for informing the witness of his duties by letter, with a copy to the court clerk, and the judge also failed to hold a conference with the expert giving the parties an opportunity to participate.
Since the judge stated that he did not even know Dr. Pestrak and his curriculum vitae does not appear in the record, there is no way for this Court or the parties to know the qualifications of the court appointed expert, unless the judge provided the parties with some information about the psychologist off the record.
Given the surprise expressed by the mother's counsel when the expert was not called, it is clear that her counsel was anticipating the expert to be called by the court for cross-examination.
The majority puts the onus on the mother's counsel to call the expert whose report was adverse to her client. It is unlikely he would be called by the mother's attorney. The father's attorney wasn't likely to call him to testify and be cross-examined as his report was fully favorable to the father's position. Thus, as stated heretofore, the only one who could be expected to call the expert was the judge, who surely would want to hear live testimony about the expert's methodology, his findings and his recommendations, and to have his testimony tested in the "crucible of vigorous cross-examination," the greatest tool for the discovery of truth ever devised. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997).
The majority concludes that the objecting party waived her right to cross-examine the expert because she had an opportunity to depose the expert or in the alternative, could have called the expert to testify at a later date. It is true that either party could have subpoenaed him before the final hearing, but my reading of the record leads me to believe that both parties reasonably expected the judge to have the witness present for cross-examination. To expect either of these parties with their limited incomes to pay to depose the expert is unrealistic, given the great number of hearings for which they were forced to pay their attorneys. The majority's conclusion ignores the requirement of Rule 706(a) that the expert "shall be subject to cross-examination" and places the burden to call the expert witness on the party who would least want the expert's report entered into evidence. In virtually all court proceedings, the party offering an expert's report into evidence has the burden to call the expert to testify in order to authenticate the report and thereby subject the expert to cross-examination. Since the father's counsel wanted the report admitted and the judge obviously relied on it, the onus should have been on the father's counsel or the judge to get the witness before the court, for authentication of his report and for cross-examination. Since the father's counsel didn't subpoena the expert, the judge should have acted to get Dr. Pestrak before the court.
When expert testimony is offered, the issues of admissibility and relevancy of the evidence and the qualifications and competence of expert witnesses are generally left to the discretion of the trial court and the court's ruling in that regard may only be overturned if the discretion is arbitrarily exercised or abused. McDaniel, 955 S.W.2d at 263-64. Rule 702 of the Tennessee Rules of Evidence provides: "If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise."
Rule 703, of the Tennessee Rules of Evidence provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
The trial court must determine whether the evidence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness. Taken together the rules necessarily require a determination of the scientific validity or reliability of the evidence.
"[T]he trial court must analyze the science and not merely the qualifications, demeanor or conclusions of experts," and "must assure itself that the opinions are based on relevant scientific methods, processes and data, and not upon the expert's mere speculation." McDaniel, 955 S.W.2d at 265. "Once the evidence is admitted, it will be tested with the crucible of vigorous cross-examination and countervailing proof." Id.
How a trial judge can make all those determinations from a written report by an "expert" whom the judge has never met, without the testing of the science involved, without determining his qualifications, without observing his demeanor and without testing the conclusions of the "expert" without ever seeing, hearing and evaluating him with the assistance of attorneys to cross-examine the "expert," is beyond my comprehension. Given the gravity of the decision as to which parent is better suited (or whether neither party is suited) to be the primary residential parent and whether a parent will endanger or molest the child are issues of the utmost seriousness. The child is the unrepresented pawn in custody cases. Her life was at a fork in the road and the judge determined her future when the decision was made to send the child to a particular home for most of her nurture, care, education and upbringing through the balance of her childhood. No decision made by any judge anywhere is more difficult, life-changing, life-directing and virtually unchangeable by the affected party than the decision about the future of a helpless child. The full development of every relevant fact should be the primary concern of every judge trying child custody cases.
Based on the foregoing, I cannot vote to affirm. "The calling of an expert witness by the court can have a significant impact on the adversarial role of the parties." Dover, 821 S.W.2d at 595. The majority's conclusion will serve to undermine the rules of evidence and create opportunities for abuse. As previously stated by this Court in Dover, "[Rule 706] contemplates that if the findings of the expert witness are to be considered as evidence, the expert will be called to testify. This requirement is not a departure from the general rule that the court may not rely on an unsworn report from an expert to decide issues before the court." Id. at 594. That is just what the trial judge did in this case.
Errors by the parties' counsel should not and indeed cannot detract from the duties of the trial judge to insure that inadmissible hearsay like as this report is excluded, that the court's chosen expert is before the court and ready to be questioned by each party and the court, and to insure that justice is done for the child. It is the trial judge, not either party's counsel, who is "ultimately responsible for every aspect of the orchestration of a trial." State v. McCray, 614 S.W.2d 90, 93 (Tenn.Crim.App. 1981). The judge's responsibilities include adherence to the evidentiary rules and also requiring adherence by all of the parties. Since, I cannot condone such a blatant disregard of the Tennessee Rules of Evidence, I must dissent.