Linda Sue Svoboda v. Martin R. Svoboda--Appeal from 22nd District Court of Caldwell County

SVOBODA DRAFT IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-093-CV
LINDA SUE SVOBODA,

APPELLANT

 
vs.
MARTIN R. SVOBODA,

APPELLEE

 
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 90-FL-256, HONORABLE FRED A. MOORE, JUDGE PRESIDING

Linda Svoboda and Martin Svoboda both sought to modify their divorce decree which named them joint managing conservators of their young son, Travors (also referred to in the record on appeal as "Travis"). Believing that Martin had sexually abused Travors, Linda had prevented his court-ordered visitation for approximately eight months before trial. A jury did not believe Linda's allegations of sexual abuse and found that Martin should be named sole managing conservator. The court rendered judgment on the verdict, naming Martin managing conservator and Linda possessory conservator, and held Linda in contempt, with punishment deferred subject to her compliance with the modification order. The court also granted Linda standard visitation rights and ordered her to pay child support.

Linda appeals, alleging that the trial court erred in: (1) admitting over her hearsay objection a letter report of a nontestifying psychologist relied upon as the basis for the opinion of father's expert psychologist, (2) dismissing one juror as "disabled," and (3) excluding opinion testimony offered by an expert witness seeking to testify for appellant. We affirm the trial court's judgment.

 
BACKGROUND

Linda Svoboda and Martin Svoboda were divorced in January 1989. Although the parties were appointed joint managing conservators of their young son, Travors, the mother had primary custody and the right to determine the child's legal domicile, subject to the father's standard visitation rights. This dispute arose when Linda terminated Martin's visitation rights in February 1990, based on her unconfirmed suspicions that Martin was sexually abusing Travors. She and her family members conspired to make Travors "unavailable" each time that Martin arrived to exercise his visitation rights. This bi-weekly ritual, involving family members of both parents, continued until a jury trial was held in Caldwell County in October 1990.

The jury determined that the joint managing conservatorship was no longer workable. Linda asked that she be named sole managing conservator and, because of the sexual abuse, that Martin's visitation be supervised until Travors reached the age of twelve. Martin asked that Linda be held in contempt for violating his court-ordered visitation rights over an eight-month period; he also argued that given Linda's past behavior he would never see his son unless he was appointed sole managing conservator. The jury did not believe the allegations of sexual abuse and apparently did believe that Linda and her family would continue to prevent Martin from seeing his son. It found that Martin should be appointed sole managing conservator of Travors. The trial court rendered judgment on the jury verdict.

 
ANALYSIS

Admissibility of Data Underlying Expert's Opinion

Dr. George Parker, psychologist, testified as an expert witness for Martin Svoboda. In his opinion there was no evidence of sexual abuse but there was evidence of "parental alienation syndrome," extreme hostility between divorced or divorcing parents that can lead to false allegations of sexual abuse in custody disputes. In his opinion, Linda Svoboda's allegations of sexual abuse were grounded in hostility and not in reality. In arriving at this opinion Dr. Parker interviewed Travors, Martin, Linda, Martin's new wife, Donna Svoboda, and the paternal grandparents. He administered a clinical "personality assessment" called the MMPI to some of these individuals. Dr. Parker also talked with Dr. Muriel Flake, a psychologist who had previously seen both parents and Travors following the first allegations of sexual abuse. He also reviewed a letter report prepared by Dr. David King, another psychologist who had been asked to see Martin and his son to review the allegations of sexual abuse. Additionally, Dr. Parker testified that he read the deposition of Dr. Deborah Tharinger, appellant's expert witness, who was asked to evaluate Travors by Travors's treating psychologist, Betty Miles.

Dr. Parker testified on direct examination that he took into account Dr. King's letter report and his discussions with Dr. Flake, both of whom found no evidence of Martin's sexual abuse of Travors, in formulating his own opinion in this case. Appellant complains of the admission of Dr. David King's letter report in her first point of error.

Dr. King had seen Martin and Travors in the summer of 1989, following Linda's first allegations of sexual abuse. In addition to interviewing father and son, Dr. King consulted Dr. Muriel Flake, who had previously had much more extensive interviews with the family and the extended family, visited in both parents' homes, and conducted various psychological evaluations. In his letter, Dr. King reported Dr. Flake's conclusion that "she saw no indications of child abuse in Travis [sic] or his father." He then continued, "During my interactions with Martin and Travis [sic] I saw nothing in either of them or in their interactions with each other to suggest that their relationship is anything other than normal and healthy." King concluded, "While I acknowledge that the above information does not conclusively rule out the possibility of sexual contact between Martin and his son, I do believe that it may be concluded from this information that the likelihood of such contact is extremely remote."

Linda objected to the admission of Dr. King's report, complaining that it was "full of hearsay." The trial court said the objection would be sustained unless Dr. Parker testified that it was normal in formulating his opinions to rely on "letters to lawyers." We note that Dr. King's report was made in the form of a letter addressed to counsel for Martin Svoboda within days of the trial. Dr. Parker then testified that during consultations he often relied on statements from other consulting psychologists or psychiatrists and that it was insignificant whether the statements were addressed to him or to an attorney when the matter was in litigation. At this point, the trial court overruled the objection and admitted Dr. King's letter report.

On appeal, Linda reurges her argument that the letter report contained prejudicial hearsay and that she was unable to cross-examine either psychologist whose adverse opinions it contained. Martin points out that Texas Rule of Civil Evidence 703 permits an expert to rely on facts or data that are not admissible in evidence, if they are "of a type reasonably relied upon by experts in the particular field in forming an opinion or inferences upon the subject." Tex. R. Civ. Evid. 703 (Pamph. 1992). Additionally, Rule 705 states, "The expert may in any case expose on direct examination, or be required to disclose on cross-examination, the underlying facts or data."

The issue presented is whether Rules 703 and 705, read together, permit a litigant to introduce otherwise inadmissible evidence through an expert witness if it forms the basis for that expert's opinion and is of a type reasonably relied upon by experts in that field. Appellee reads the "may" in Rule 705 to be mandatory; appellant argues that the "may" in Rule 705 has not extinguished the trial court's discretion in admitting evidence.

First we reject appellee's argument that appellant has not preserved error by making a hearsay objection. See Decker v. Hatfield, 798 S.W.2d 637, 638 (Tex. App. 1990, writ dism'd w.o.j.); Hall v. Birchfield, 718 S.W.2d 313, 324-25 (Tex. App. 1986), rev'd on other grounds sub. nom. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex. 1987). We then review the conflicting interpretations of the effect of Rules 703 and 705 on the admissibility of otherwise inadmissible evidence.

In Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex. 1987), the supreme court stated, "Ordinarily an expert witness should not be permitted to recount a hearsay conversation with a third person, even if that conversation forms part of the basis of his opinion." Id. at 365. However, the court found the inadmissible evidence cumulative of other similar evidence and therefore ruled that any error was harmless. Id. In that cause, the intermediate appellate court had held that Rule 705 "cannot be used as a guise to use one's own expert witness to get in hearsay testimony." Hall, 718 S.W.2d at 325.

The supreme court's language in Birchfield, and by implication the intermediate court's as well, has been criticized for failure to consider the import of Rules 703 and 705 on admissibility:

 

This language, contained in dictum and made without reference to Rules 703 and 705, is ill-considered and overbroad. The design of these rules was to allow experts to testify in a way consistent with the matter in which they conduct their professional activities. If an expert has relied upon hearsay in forming an opinion, and the hearsay is of a type reasonably relied upon by such experts, the jury should ordinarily be permitted to hear it. Exclusion is proper only when the court finds that the danger that the jury will improperly use the hearsay outweighs its probative value for explanatory purposes.

 

33 Steven Goode et al., Guide to the Texas Rules of Evidence: Civil and Criminal 705.3, at 536 (Texas Practice 1988). Accordingly, Rules 703 and 705 do not always require admission of otherwise inadmissible evidence reasonably relied upon by an expert, but the trial court should weigh admissibility in light of Rule 403:

 

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. A hearsay objection to evidence reasonably relied upon by an expert in forming an opinion should ordinarily be overruled, subject to a determination that the dangers outlined in Rule 403 outweigh the evidence's probative value.

 

Tex. R. Civ. Evid. Ann. 403 (Pamph. 1992).

In a case substantially on point with the one before us, the court applied Rules 703 and 705 to otherwise inadmissible evidence as the commentators recommend. In Decker a mother and father, appointed joint managing conservators in their divorce decree, filed motions to modify a custody arrangement which had become unworkable. The mother's expert witness testified that he based his opinion of which parent should have custody on the nontestifying child's preference for where he wanted to live. Over father's hearsay objection, the psychologist was permitted to disclose the child's preference for living with his mother. The appellate court reviewed the authorities cited above and concluded that the trial court did not abuse its discretion in overruling the father's hearsay objection. Decker, 798 S.W.2d at 639. The court was persuaded that the supreme court's dictum in Birchfield was overly broad, and followed the commentators' suggestion that hearsay relied upon by an expert should ordinarily be made available to the jury. The Decker court noted that the father failed to object that the dangers of stating the child's custody preference outweighed its probative value under Rule 403 and failed to seek a limiting instruction that the jury restrict its consideration of the hearsay statement to its proper scope as data underlying the expert's opinion. Id.

We concur with the Decker opinion that Rule 705 suggests that the jury should ordinarily be entitled to hear otherwise inadmissible evidence when an expert witness has reasonably relied upon it. (1) We agree with appellant that Rule 705 does not eliminate the trial court's discretion in determining the admissibility of evidence. "The trial judge has broad discretion in determining issues concerning the general admissibility of evidence." Thompson v. Mayes, 707 S.W.2d 951, 956 (Tex. App. 1986, writ ref'd n.r.e.). We note that the appellate court in First Southwest Lloyds Insurance v. MacDowell, 769 S.W.2d 954 (Tex. App. 1989, writ denied), deferred to the trial court's discretion in excluding the specific details of some data relied upon by the expert witness in an arson case:

 

Moreover, even if we determined that Rule 703 mandated that all facts or data relied on by an expert were ipso facto admissible, we believe that the trial court in the exercise of its discretion could exclude these types of matters. Were the appellate courts to adopt the position urged by First Southwest, then we would eliminate the trial court's discretion in limiting the admissibility of any evidence which might be facially admissible. The Texas Rules of Evidence clearly compel that we not adopt this position.

 

Id. at 958 (citing Rule 403).

We concur with the holdings in Decker and First Southwest that any objection to inadmissible evidence reasonably relied upon by an expert in forming an opinion should address the court's discretion to exclude the evidence because the dangers cited in Rule 403 outweigh its probative value. See Goode, Guide to the Texas Rules of Evidence: Civil and Criminal 705.3, at 536. We note that as in Decker, this appellant failed to argue that Dr. King's letter should be excluded under Rule 403. In light of Rule 705 and its interpretation in the authorities listed above, we are not persuaded that the trial court abused its discretion in admitting the letter report of Dr. King. We overrule the first point of error.

 

Disabled Juror

 

In point of error two, Linda Svoboda argues that the trial court erred in dismissing one juror whose wife's grandmother had died during the trial. The issue of determining when a juror is disabled is left to the sound discretion of the trial court. Southern Pac. Trans. Co. v. Peralez, 546 S.W.2d 88, 97 (Tex. Civ. App. 1976, writ ref'd n.r.e.). We have reviewed the statement of facts and find no suggestion that the trial court abused its discretion in dismissing the juror under the circumstances set forth in the record. We overrule the second point of error.

 

Exclusion of Laurie Blanton's "Expert" Testimony

 

In her final point of error, Linda Svoboda complains of the trial court's failure to allow the Caldwell County district attorney's investigator, Laurie Blanton, to testify as to whether the child's statements to her were rehearsed. Appellant's argument fails on two grounds. In the bill of review, Blanton never identified the subject of Travors's conversation with her that was allegedly unrehearsed. The record, which is silent on the subject of the child's conversation with Blanton, is therefore silent as to the relevance of Blanton's testimony. Because appellant's offer of proof presents nothing of relevance that would have been testified to, nothing is preserved for review on appeal. Furthermore, the offered testimony was nothing more than an "expert's" opinion that the child was telling the truth. The issue of the truthfulness of the allegations of sexual abuse was committed to the jury. A court errs by receiving, over objection, expert testimony as to the credibility of a child who is alleged to have been sexually abused. "An expert's opinion about the alleged victim's truthfulness is usually not allowable because it invades the exclusive province of the jury." Ochs v. Martinez, 789 S.W.2d 949, 957 (Tex. App. 1990, writ denied) (citations omitted). We overrule point of error number three.

 
CONCLUSION

Finding no reversible error, we affirm the judgment of the trial court.

Bea Ann Smith, Justice

[Before Chief Justice Carroll, Justices Aboussie, and B. A. Smith]

Affirmed

Filed: June 17, 1992

[Do Not Publish]

1. We note that appellant does not challenge Dr. Parker's rather troubling testimony that a psychologist asked to investigate allegations of sexual abuse "reasonably" relies on another psychologist's letter to a trial attorney written five days before trial, as opposed to a consulting psychologist's report to another examining psychologist, in forming an opinion as to whether sexual abuse occurred.