ALEXANDER M HAKAM V SUE ANN HAKAM
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STATE OF MICHIGAN
COURT OF APPEALS
ALEXANDER M. HAKAM,
UNPUBLISHED
July 15, 2008
Plaintiff-Appellee,
v
No. 279931
Oakland Circuit Court
LC No. 2005-703801-DM
SUE ANN HAKAM,
Defendant-Appellant.
Before: Murray, P.J., and Sawyer and Cavanagh, JJ.
MURRAY, P.J. (dissenting).
In my view the pivotal question is whether the trial court abused its discretion in
excluding the testimony of Cynthia Bridgman, defendant’s forensic psychology expert, and if so,
whether that error warrants a new hearing. In my view, and despite the deference given to the
trial court judge on these issues, a new evidentiary hearing is necessary. I would therefore vacate
the trial court’s order and remand for further proceedings.
Although we review the trial court’s evidentiary decision for an abuse of discretion,
Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004), an abuse of
discretion occurs when the trial court incorrectly interprets or applies the law. See Donkers v
Kovach, 277 Mich App 366, 374; 745 NW2d 154 (2007). Here, the trial court erred as a matter
of law in holding that Bridgman’s testimony was excluded on the basis of MCL 600.2163a.
First, the Legislature has indicated that this section only applies to certain prosecutions and
proceedings, none of which include a post-judgment change of custody issue. See MCL
600.2163a(2) and (6). Thus, the provisions of MCL 600.2163a do not apply to this case, because
the Legislature has limited their application. People v Cervi, 270 Mich App 603, 618; 717
NW2d 356 (2006). Second, even if these provisions did apply, pursuant to subsection 12, MCL
600.2163a(12), the production or release of a transcript of a video recorded statement is not
prohibited.1 In other words, it appears that the Legislature approved the release in written form
of the words spoken in these interviews, but has precluded the release of all videos of the
interviews except in certain circumstances. As such, and assuming the statute spoke to
1
Of course, each of these provisions relate to the disclosure of the video recorded statements, not
their admissibility in court. And, although the court quashed a subpoena issued to Care House,
Bridgman and the attorneys had already viewed the tape, so disclosure was not an issue as it
pertained to Bridgman’s testimony.
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admissibility, there is nothing under the statute, even if it applied, that would preclude testimony
regarding the statements made during the Care House interview in this child custody dispute.2
In most situations, an evidentiary error during the course of a six-day bench trial would
not require reversal. Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003) (reversal
only required for an evidentiary error if failure to do so affects substantial right and inconsistent
with substantial justice). However, the unique circumstances of this case, requires reversal. For
one, even though the trial court excluded Bridgman’s complete testimony on the basis that she
viewed and testified about the Care House interviews, the trial court subsequently relied upon
witness statements made during the Care House interviews for its rulings. Specifically, when
addressing factor j under the Child Custody Act, MCL 722.23(j), the trial court repeatedly
discussed statements made by both girls:
The children did report that plaintiff was angry because they seemed to
like defendant more than him. The girls also stated that plaintiff would ask the
children which parent they loved more.
Regarding defendant, she plainly made statements to the children that
would lead them to be fearful of their father. For instance, the children testified
that defendant hates plaintiff and she thinks that he is scary and mean. According
to Monique, defendant worries that plaintiff is going to hurt the children.
Monique also stated that plaintiff wants the court to send their mother to jail. Dr.
Okla opined that defendant’s statements can establish an expectation or mindset
to the children that plaintiff is a danger to them or will not take care of them.
Dr. Okla did testify to the likelihood that defendant has influenced the
children against plaintiff. Mr. Anderson also felt that the children were coached
somewhat. When asked if she had been coached, Monique did not respond
directly.
During the Carehouse interview, Monique stated that plaintiff calls her the
“b” word, “in his head.” Monique also stated that she is suppose to tell the
interviewer all the bad things that plaintiff does to the children. Additionally,
Monique reported that defendant says that her bruises must be from plaintiff.
Throughout the interview, Monique would spontaneously “oh yeah, I forgot to tell
you” without being asked a question.
Based upon Monique’s statements, the Court concurs with the opinions of
Dr. Okla and Mr. Anderson that the child has been influenced by defendant.
2
Even though there is a strong argument that Bridgman’s testimony that repeated statements
made by the children during the Care House interviews would otherwise be inadmissible under
MRE 702 because there was no independent basis for the admission of those statements, see
MRE 703, defendant was never faced with an objection on this ground and therefore was never
required to articulate a basis for their admission.
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Neither party is credited as to this factor. However, the Court shall
attribute great weight to the parties’ behavior in its determination of custody
[Emphasis added].3
It conflicts with substantial justice for a trial court to exclude an expert witness’s
testimony on a certain basis, and then ignore that same basis and utilize the excluded evidence
when ruling against the party who offered the excluded expert testimony. That is precisely what
occurred here, and in my view that error compounded the evidentiary error noted above.
Additionally, the trial court excluded all of Bridgman’s testimony, rather than just her testimony
that encompassed what the children actually said during the interview. At the very least, this
blanket exclusion precluded defendant from utilizing Bridgman’s opinions (as opposed to
underlying facts), which were based on her acknowledged expertise.4 Each of these
considerations together warrants a reversal and remand for a new hearing. I therefore
respectfully dissent from the majority’s opinion affirming the trial court’s opinion and order.
/s/ Christopher M. Murray
3
Some of these statements are directly attributed to the Care House interviews, while the source
of the others is not as clear. Neither child was called as a witness at trial and the only other
sources for any statements were Dr. Okla and Mr. Anderson.
4
During the evidentiary hearing plaintiff’s counsel represented to the court that even without the
children’s Care House statements, the experts would still be able to testify about their
conclusions.
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