LaMoria v. LaMoria

LaMoria v. LaMoria (99-359); 171 Vt. 559; 762 A.2d 1233 

[Filed 19-Jul-2000]
[Motion for Reargument Denied 1-Sep-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-359

                               MAY TERM, 2000


Dianne LaMoria	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Rutland Family Court
                                       }	
Raymond LaMoria	                       }
                                       }	DOCKET NO. 236-5-96 RcFa
                                                           281-7-92 Rddm

                                                Trial Judges: Silvio T. Valente
                                                           Francis B. McCaffrey  

             In the above-entitled cause, the Clerk will enter:


       Mother Dianne LaMoria appeals from the denial of several discovery
  motions and a motion  for modification of custody and visitation.  She also
  alleges that the court erred by: (1) refusing to  permit depositions of
  Lisa Casey, Shayna LaMoria, and Douglas Andrews; (2) refusing to order a 
  forensic family evaluation; (3) failing to consider evidence of father's
  parenting abilities in the  original order awarding him sole parental
  rights and responsibilities; (4) improperly delegating  authority over
  parent-child contact to a counselor; (5) failing to rule on her Daubert
  challenge to the  counselor's admission as an expert; (6) extending the
  relief-from-abuse order; (7) making findings  that are not supported by the
  evidence; and (8) improperly modifying custody in a relief-from-abuse 
  (RFA) petition.  We affirm.

       Mother and father, Raymond LaMoria, divorced in 1993 and shared joint
  legal and physical  rights and responsibilities for their only daughter,
  Shayna, born in 1990.   In the words of the court,  "[a] complete 
  breakdown in the parties' relationship . . . occurred" in the years 1993 to
  1996.  During  that time mother made several allegations to the Department
  of Social and Rehabilitation Services  (SRS) that father was sexually
  assaulting Shayna.  Each accusation was investigated and found by  SRS to
  be unsubstantiated.   Father believed that Shayna was suffering emotional
  harm because  mother had pushed Shayna to make these allegations and
  because Shayna was a witness to the  breakdown of mother and father's
  relationship in these years.  Therefore, in 1996, father moved for  sole
  legal and physical parental rights.  After hearing evidence over many days,
  the Rutland Family  Court modified the divorce order and granted father
  sole legal and physical responsibility for Shayna.  The court also granted
  mother supervised visitation with Shayna for one hour a week.  Mother 
  never appealed this order, dated December 23, 1996.  

 

       In May 1996, father requested a RFA order based on mother's violent
  behavior toward him.   As in the custody proceeding, the court heard
  numerous days of testimony over a long period of time.  In January 1997,
  the court granted a final RFA order, which has been extended several times
  at  father's request.  Most recently, father requested an extension, and
  this request was heard along with  mother's motions for discovery and
  modification of custody and visitation.  In the order dated July  15, 1999,
  in which the court found no changed circumstances to permit modification,
  the court  extended the RFA order based on the evidence that issues between
  mother and father were still  "contentious" and unresolved.   On appeal to
  this court, mother objects to the extension.   
	
       In July 1997, mother moved to modify the December order granting
  father sole custody of  Shayna and to modify the visitation set out in that
  order.  She requested discovery pursuant to  V.R.F.P. 4 (g)(2)(A) & 5
  (depositions not on issues of support, maintenance, or property division 
  may be taken only for good cause shown, and court may order home study). 
  The request for a  forensic family evaluation was denied in an order dated
  January 29, 1998, which mother did not  appeal.  The court denied her
  motions for deposition, and, as threshold matter, found no change in 
  circumstances sufficient to permit reconsideration of the custody and
  visitation decisions. Mother  appeals.  

       A number of mother's claims of error must be dismissed at the outset
  because they have not  been properly preserved.  See Miller v. A.N.
  Deringer, Inc., 146 Vt. 59, 60, 498 A.2d 501, 502  (1985) ("Judgments from
  which timely appeals are not taken are conclusive upon the parties.")  
  Thus, as mother did not appeal the January 1998 denial of her request for a
  home study under  V.R.F.P. 5, she cannot raise it now, two years later. 
  Similarly, the family court had previously  denied mother's motion to
  depose Douglas Andrews on August 20, 1998, and mother did not appeal.  We
  will not entertain mother's repeated motions for this deposition. 
  Additionally, mother here  claims that Judge Valente erred in failing to
  make findings regarding father's ability to parent.  As  mother did not
  appeal Valente's December 23, 1996 decision we cannot review the findings 
  embodied in that order.  Finally, mother argues that the December 23, 1996
  order modified custody  through a RFA petition and the court lacked
  authority to do so.  Mother's failure to timely appeal that  order
  forecloses this claim now.

       Turning to the remaining issues on appeal, we first address the
  discovery motions the denial  of which mother appeals.  "Discovery rulings
  are within the sound discretion of the trial court and  will not be
  disturbed on appeal absent a clear abuse or withholding of that
  discretion."  Lamare v.  North Country Animal League, ___ Vt. ___, ___, 743 A.2d 598, 604 (1999).  Further, discovery such  as mother sought is granted
  in family cases only for "good cause shown."   V.R.F.P. 4(g)(2)(A).  The 
  court concluded that mother had not shown good cause for deposing Lisa
  Casey, father's girlfriend,  because the issues involving Ms. Casey
  predated the December 23, 1996 order that mother did not  appeal. 
  Therefore, mother was attempting to reopen those issues, despite her
  failure to appeal, by  deposing Ms. Casey about matters resolved by that
  order.  There was no abuse of discretion in  denying this deposition.  The
  other discovery mother requested was the deposition of Shayna  LaMoria. 
  The court denied this motion on the grounds that her testimony was
  available through  other means, such as through her therapist or father,
  and that the detriment to Shayna outweighed 

 

  any probative value of the testimony.  The court properly noted that
  V.R.F.P. 7(e) provides a  balancing test to evaluate a request to have a
  child as a witness.  The court concluded that mother had  not made a
  showing to overcome the presumption against such testimony embodied in the
  rule.  See  Reporter's Notes V.R.F.P. 7 ("The statute recognizes that the
  act of testifying for or against one  parent, and requests by a parent for
  such testimony, are often harmful to children.").  We see no  abuse of
  discretion in denying the motion to depose Shayna.

       Mother further argues that the court erred by improperly delegating
  authority over parent-child contact to the child's counselor, Gail
  Coghlan, and failing to rectify the impasse between  Coghlan and mother's
  therapist, Phyllis Pierce.  Under the December 23, 1996 order, Drs. Coghlan 
  and Pierce were to work together to increase mother-daughter contact time. 
  In the order on appeal  here, the court found that the two therapists had
  been unable to cooperate and that this development  was a change in
  circumstances sufficient to allow the court to modify the December 1996
  order.  The  court then concluded that Shayna's best interests would be
  served by continuing supervised visitation  and ordered extended visitation
  of an additional one and one-half hours per week, at a time to be  agreed
  upon by the parties.  Only if mother and father cannot agree does Coghlan
  have any role in the  process at all and then her role is only to set a
  time for visitation.  We have approved such delegation  of ministerial
  tasks to therapists in the past.  See Fenoff v. Fenoff, 154 Vt. 450,
  454-55, 578 A.2d 119, 121 (1990). To the extent that mother objects to the
  original December 1996 order, or the  court's failure to act in the years
  following the December 1996 order, she has waived those objections  by her
  failure to appeal the December 1996 order.

       Next, mother contends that Coghlan's testimony should have been
  excluded at the hearing on  modification because Coghlan does not qualify
  as an expert witness under Daubert v. Merrell Dow  Pharmaceuticals, Inc.,
  509 U.S. 579, 592-95 (1993).  The transcript reveals that Coghlan was
  offered  as an expert only in the context of being Shayna's treating
  counselor, not as an expert on sexual  abuse or on mother's psychiatric
  condition.  Further, the transcript reveals that mother's counsel  stated,
  "If [she is being admitted] just as the treating counselor, then I will
  handle it on cross-examination."  We see no abuse of discretion in the
  court's permitting Coghlan to testify.  

       Mother further argues that the court erred in granting father's motion
  to extend the RFA  order.  Mother takes issue with the truth of the three
  incidents cited by the court as supporting its  decision to extend the RFA
  order.  The court noted that the order had originally been granted based 
  on findings that mother had been violent toward father and/or Shayna three
  times, and it extended the  RFA order based in part on the fact that mother
  "has been placing herself in close proximity to  [father] which, from
  [father's] point of view, has been intimidating and a threat to his
  personal  liberty."  The court credited father's extensive testimony about
  mother's stalking behavior and the  fear it creates in him; therefore the
  findings are supported by credible evidence.  As the trier of fact,  it is
  the province of the family court to determine the credibility of the
  witnesses and weigh the  persuasiveness of the evidence.  See Cabot v.
  Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997).   We will uphold
  conclusions of law if supported by the findings. See Abbiati v. Buttura &
  Sons, Inc.,  161 Vt. 314, 318, 639 A.2d 988, 990 (1994).  The decision to
  extend the order is supported by the  findings that mother has been
  behaving in a threatening manner.  

 

       Finally, mother claims that the court erred by making findings that
  are not supported by the  evidence, specifically, findings that (1) she
  brought sexually explicit candy to a visit with Shayna; (2)  Shayna told
  father that mother held a knife to mother's own throat when discussing the
  sexual abuse  allegations against father; and (3) mother called father an
  obscene name.  These findings are  supported by testimony from Drs. Pierce
  and Coghlan, and from father.  As the findings are  supported by credible
  evidence, they will not be disturbed.  See Cabot, 166 Vt. at 497, 697 A.2d 
  at  652.  Although mother now argues that Coghlan's testimony about the
  candy was hearsay, by failing  to bring her objection to the attention of
  the trial court at the time, she has waived this objection.  See  State v.
  Valley, 153 Vt. 380,  397, 571 A.2d 579, 588 (1989) ("Where an objection is
  absent,  untimely, or nonspecific, the error, if any, is waived.").

       Affirmed.



                                     BY THE COURT:


                                     _______________________________________
  	                             John A. Dooley, Associate Justice

                                     _______________________________________
                                     James L. Morse, Associate Justice

                                     _______________________________________
                                     Denise R. Johnson, Associate Justice

                                     _______________________________________
                                     Marilyn S. Skoglund, Associate Justice

                                     _______________________________________
                                     Ernest W. Gibson, Associate Justice (Ret.),
                                     Specially Assigned