Timothy Sharp v. Heather Sharp

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

TIMOTHY SHARP,

APPELLANT

V.

HEATHER SHARP,

APPELLEE

CA02-72

SEPTEMBER 25, 2002

APPEAL FROM THE SEVIER COUNTY CHANCERY COURT,

NO. E2000-192,

HON. TED C. CAPEHEART, JUDGE

AFFIRMED

This appeal arises from an order of the Sevier County Chancery Court entered October 26, 2001, that granted Heather Sharp a divorce from Timothy Sharp and awarded custody of the parties' two minor children to her. Appellant, Mr. Sharp, contends that the chancellor abused his discretion by allowing testimony of a witness in violation of Arkansas Rule of Evidence 615. We affirm.

Rule 615 states, "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." The exclusion, however, is not required for a person whose presence is shown by a party to be essential to the presentation of his cause. Ark. R. Evid. 615 (3). In the present case, the trial court ordered all witnesses excluded after Rule 615 was invoked.

The issue of Mr. Sharp's medical condition and his ability to care for the parties'children was a central focus of testimony by Mr. Sharp and Dr. Cheryl Vogan, who testified immediately after he did. Mr. Sharp stated that he had been the primary caretaker before the parties' separation, that he had undergone brain surgery and chemotherapy, and that he no longer had the mood swings that he had suffered when the tumors were growing in his head. Dr. Vogan testified that she knew all four members of the family; that she had cared for Mr. Sharp; and that there had been changes in his behavior, thought process, and reasoning after his surgery. She stated that his tumor involved the hypothalamus, an area of the brain involving order and structure and cognition in putting events together to lead to reasonable and logical conclusions. She voiced concern that Mr. Sharp would be unable to make appropriate decisions, and it was her opinion that Ms. Sharp was the better parent and should have custody of the children.

Mr. Sharp states in his brief that neither party requested that Dr. Vogan be exempt from the rule, and that the trial court never ruled that she be allowed in the courtroom during Mr. Sharp's testimony. The record reveals, however, that the following colloquy took place between the trial court and Ms. Sharp's attorney, Mr. Wright, before testimony began:

Mr. Wright: The only ones we are- I think I was going to say I have Dr. Vogan. I asked her if she could remain out here until I called her.

The Witness: That's fine.

Mr. Wright: I'd like to put her on after I call Mr. Sharp.

The Court: Call your first witness.

It is apparent that neither party requested a ruling on the request that Dr. Vogan be exempted from the rule and be allowed to be present during Mr. Sharp's testimony. Our laws are well settled that an appellant may not argue on appeal that a trial court acted erroneously when the appellant encouraged, acquiesced, or consented to the action. Narup v. Narup, 75 Ark. App. 217, 57 S.W.3d 224 (2001). To preserve an allegation of error, an appellant is required to raise the error in the court proceeding below, at the first opportunity. Id. Here, because appellant did not object at the first opportunity to the trial court's allowing the witness to stay in the courtroom, the matter is not preserved for appellate review.

After Sharp's testimony was complete, it appears that he offered two bases for his objection to Dr. Vogan's testifying: the objection was based both (1) on "privilege," and (2) on the doctor's presence in the courtroom after the rule had been requested:

Mr. McDaniel: Your Honor, I believe I know the nature of Ms. Vogan's testimony and I would object based on privilege since she has been present for some time of the testimony and the rule was requested.

Mr. Wright: Your Honor, she is an expert witness. She can be in the Courtroom while testimony is being given. Furthermore, Mr. Sharp has put his fitness in issue in this case. He cannot come before this Court, claim to be fit to have the children and then claim a privilege against someone who has knowledge of that. . . .

The court ordered a break so that attorneys could "get . . . the physician-patient privilege" for the court's examination. Afterwards, the court ruled:

There is no privilege under this rule that the medical records or communications relevant to an issue of the physical or emotional condition of a patient in anyproceedings to which he relies upon his condition of mental disclaimer[sic]- he is relying on being the fit person to get custody.

. . . .

I'm going to allow the doctor to testify. Go ahead. There is no privilege.

Again, we find that Mr. Sharp's point of appeal is not preserved for appellate review. The trial court's ruling was based on the absence of privilege and did not address his objection under Rule 615. Mr. Sharp's failure to obtain such a ruling bars our review of this issue.

Even if the point of appeal had been properly raised and addressed below, we would affirm. Rulings dealing with the exemptions from Rule 615 are within a trial court's discretion. City of Crossett v. Pacific Bldgs., Inc., 298 Ark. 520, 769 S.W.2d 730 (1989); Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987); Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984).

Under Rule 703, "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 him at or before the hearing." Ms. Sharp argues in her brief that Dr. Vogan testified as an expert witness, giving an opinion as to which parent should receive custody; and that facts made known to her at trial helped formulate her opinion. We agree with this argument, and would be unwilling to find that the trial court abused its discretion in allowing Dr. Vogan to testify although she had been in the courtroom during the testimony of Mr. Sharp.

Affirmed.

Neal and Baker, JJ., agree.