No. 92-515
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
VICTOR JOHANSEN,
petitioner, Respondent,
and Cross-Appellant,
and
DEBRA JOHANSEN,
Respondent, Appellant,
and Cross-Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable M. James Sarte; Judge presidinq:
COUNSEL OF RECORD:
For Appellant:
Margy Bonner, MacMaster and Bonner,
Williston, North Dakota
For Respondent:
Gerald T. Archambeault, Gallagher & Archambeault,
Glasgow, Montana
Submitted on Briefs: May 27, 1993
Decided: November 10, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Debra Johansen appeals from a decision of the District Court
for the Fifteenth Judicial District in Sheridan County, Montana,
which modified custody by transferring primary residential custody
from Debra to her former husband, Victor. Debra asserts that the
District Court erred when it limited evidence at the custody
modification hearing to post-dissolution decree evidence. We
reverse the order of the District Court.
There are two issues on appeal.
1. Did the District Court commit reversible error when it
limited evidence at the custody modification hearing to post-decree
evidence?
2. Did the District Court err when it prohibited Pamela
Hodges, a social worker, from offering her opinion about the
appropriate custodial placement of the Johansen children?
Debra (Debbie) and Victor (Vic) Johansen were married on
November 29, 1980. They had three children together during their
marriage. The children are 9, 11, and 12 years old.
On February 4, 1991, Vic petitioned the District Court for
dissolution of the couple's marriage and requested that he be
awarded primary residential custody of the parties' three children.
In her response, Debbie requested that she be granted primary
residential custody of the three children.
Prior to entry of the original dissolution decree, a home
study was ordered pursuant to 5 40-4-215(1), MCA, and was conducted
by Pamela Hodges, a licensed social worker employed by the Sheridan
2
County Department of Family Services. The parties and their
children also underwent psychological examinations conducted by Jim
Allen, a licensed professional counselor employed by the Eastern
Montana Mental Health Center.
Following the home study and psyshological evaluations, the
parties entered into a custody, support, and property settlement
agreement on September 14, 1991.
The parties1 marriage was dissolved by decree on September 17,
1991. The trial court did not hear evidence concerning the issues
of custody and visitation before entering the decree. The court
based the dissolution decree on the parties' custody, support, and
property settlement agreement. Pursuant to the terms of the
agreement, the parties were awarded joint custody, Debbie was given
primary residential custody of the children, and Vic was awarded
visitation according to a specific visitation schedule. Vic was
granted residential custody during the children's summer vacation
and Debbie was awarded visitation during those months.
On June 24, 1992, Vic filed a petition for modification of
custody. In his petition and supporting affidavit, Vic alleged
that custody modification was necessary because Debbie was
uncooperative with visitation; she left the children home
unattended on several occasions; and there was possible physical
abuse by Debbie of the children, as revealed by bruises on one of
the children1s arms. The petition further alleged that
modification was necessary because the children desired to live
with Vic.
3
A custody modification hearing was held on October 8, 1992.
At the hearing, Debbie attempted to offer evidence of the home
study conducted by the social worker prior to the dissolution
decree. Debbie wanted to inform the court that the original home
study recommended that she be given residential custody of the
children, and that this recommendation served as the basis of the
parties' stipulated agreement.
Vic's attorney objected to the introduction of any pre-decree
evidence and the District Court sustained Vie's objection. The
court ruled that the matters leading up to the original stipulation
were irrelevant and only allowed evidence of events that transpired
after the original decree.
Further, the court would not allow Jim Allen to testify
regarding his psychological assessments at the initial custody
evaluation. Allen was only permitted to testify at the hearing
about post-decree events. Finally, the District Court prohibited
Pamela Hodges from giving her professional opinion of the
appropriate custodial placement of the parties' children.
Subsequent to the hearing, the District Court modified custody
by transferring primary residential custody of the parties' three
children from Debbie to Vic.
I
Did the District Court commit reversible error when it limited
evidence at the custody modification hearing to post-decree
evidence?
On appeal, Debbie contends that the District Court erred when
it excluded all pre-decree evidence at the custody modification
hearing. She asserts that without pre-decree evidence, the court
could not properly assess whether transferring primary residential
custody to Vic was in the children's best interests.
Debbie explains that the dissolution decree was based upon a
stipulated agreement between the parties, and therefore, the
District Court never heard evidence concerning the issues of
custody and visitation. Debbie asserts that had she been allowed
to present pre-decree evidence, she would have been able to inform
the court about the basis for the parties' stipulated agreement;
and such evidence would have apprised the court about the reasons
the home study recommended that Debbie have residential custody of
the children.
Debbie relies on 5 40-4-219(1), MCA, and cites the case of in
re Mammageof SarsJeEd (1983)' 206 Mont. 397, 671 P.2d 595, for the
proposition that, in custody modification proceedings, the court
must consider not only facts that have occurred since the
dissolution decree, but those which the court was unaware of at the
time of the decree. Debbie argues that by restricting the evidence
at the hearing to post-decree evidence, the court could not
properly evaluate what was in the children's best interests.
Vic asserts that the pre-decree evidence is irrelevant and
that what matters are the circumstances that have changed since the
decree, not the facts leading up to the decree.
The standard of review of evidentiary rulings is whether the
district court abused its discretion. State v. Cnst (1992), 253 Mont.
442, 445, 833 P.2d 1053, 1054. The trial court's ruling will be
overturned when there is an abuse of discretion. Ctirt, 833 P.2d at
Section 40-4-219(1), MCA, provides:
The court may in its discretion modify a prior custody
decree if it finds, upon the basis of facts that have
arisen since the prior decree or that were unknown to the
court at the time of entrv of the orior decree, that a
change has occurred in the circumstances of the child or
his custodian and that the modification is necessary to
serve the best interest of the child . . ..
[Emphasis
added] .
In Sar.~field, this Court held that § 40-4-219 (I), MCA, ltrequires
the trial court to consider post-decree facts, as well as
pre-decree facts unknown to the trial court at the time the decree
was entered, in determining both the 'change in circumstances' and
the 'best interests' requirements." Sumfield, 671 P.2d at 604.
Moreover, it is reversible error for a trial court to limit
evidence in a custody dispute to post-decree facts. Matter of Custody
0fR.L.S. (l98l), 193 Mont. 469, 632 P.2d 703
In all custody matters, the best interests of the children
must be the court's primary concern. "The court cannot satisfy
this concern if it consciously or unconsciously avoids facts about
the parent seeking modification that took place prior to the entry
of the initial decree." Snmfidd, 671 P.2d at 604.
The record reveals that the District Court did not comply with
the requirements of 5 40-4-219(1), MCA, or this Court's decision in
Sarsjiekf, when it excluded pre-decree evidence at the hearing to
modify custody of Debbie and Vic's children. The court's failure
to consider the circumstances and reasons for the original custody
agreement was an abuse of discretion and constituted reversible
error. Sunfield, 671 P.2d at 604; C~ufodyofR.L.S., 632 P.2d at 705.
On remand, the District Court is instructed to hear pre-decree
testimony and then determine whether a custody modification, which
transfers primary residential custody from Debbie to Vic, is still
warranted.
In a separate argument, Vic contends that Debbie should not be
allowed to argue on appeal that the trial court made an erroneous
evidentiary ruling when it excluded pre-decree evidence, because
she did not preserve her objection to the trial court's exclusion
of such evidence. Vic relies on Rule 103, M.R.Evid., and asserts
that Debbie did not make an offer of proof of the pre-decree
evidence.
Pursuant to Rule 103, M.R.Evid.:
Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party
is affected, and
(2) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the court by an offer or was apparent from
the context within which questions were asked.
We conclude that although the record indicates that Debbie
made no offer of proof at the custody modification hearing, Debbie
satisfied subsection (2) of Rule 103, M.R.Evid. The following
testimony, excerpted from the transcript of the custody
modification hearing, illustrates that Debbie's attorney made the
substance of the pre-decree evidence apparent to the court from the
context in which she asked Debbie questions. See Koppang v. Sevier
(1938), 106 Mont. 79, 75 P.2d 790. Debbie's attorney asked Debbie
the following on direct examination:
Q. [BY MS. BONNER] And what were the legal provisions
for custody?
A. I was given residential custody of the kids, and he
was given them during the school year, and he was given
it for them during the summer.
Q. Okay. Was that decided by -- between you and Vic
with the consultation of your attorneys or was that
something that Judge Sorte decided?
A. Itwas by us.
Q. i n why did you decide that way?
id What was the
reason why you went ahead and decided that?
A. Because, first of all, both of the case studies --
we had a case study done, a home evaluation done, and we
had the kids under --
MR. ARCHAMBEAULT [Vic's Attorney]: .
. . I ask the court
to find that to be beyond the scope of why we are here
today to determine change of custody, not go all the way
back and discuss the merits of our property settlement
agreement one year ago before the divorce was even
entered.
THE COURT: Yes, I would think we wouldn't go back that
far. We are dealing with a different matter now.
MS. BONNER: Okay. Your Honor, you will have to, I guess,
rule on this question then. I don't know if you consider
this question out of order, but --
Q. Debbie, did you enter into that agreement based on
the recommendations made by Jim Allen and Pam Hodges on
the custody and visitation?
MR. ARCHAMBEAULT: am going to object before she
answers again. . . .I
THE COURT: That agreement exists. What led up to that I
don't think is -- that's a fact of life. It's been
agreed upon.
Q: [BY MS. BONNER] Okay, and why was visitation
structured in that --
MR. ARCHAMBEAULT: I will object, Your Honor. It's the
same question answered in another form. ...
Q. [BY MS. BONNER! Do you have concerns for the
physical safety of your children --
A. Yes.
Q. -- if they are in his care?
A. Yes.
Q. What are your specific concerns?
A. Vic is a very violent man, and he treated me very
violently the entire time we were married.
Q. Are you aware of any instance where he has displayed
violence against your children?
A. Only -- the only thing that I am aware of is what I
read when the case study was done when Ashley had made
allegation of that he had --
MR. ARCHAMBEAULT: I am going to object, Your Honor. The
case study, again, must be talking pre-time of
termination of this marriage, and counsel knows that is
beyond the scope of this examination.
THE COURT: I think it is. Sustained.
Q: [BY MS. BONNER] Has Vic as far as you are aware
gotten any treatment for his violent temper?
Transcript, pp. 110-114: 135-136.
Not only did Debbie's attorney make the substance of the
pre-decree evidence apparent from the context within which she
asked questions, but the pre-decree information that Debbie souqht
to introduce was made a substantive part of the record at the time
of the hearing through affidavits of the social worker and the
licensed counselor. The District Court took judicial notice of the
affidavits and made them part of the hearing, and therefore, the
substance of the evidence was known to the court. Accordingly,
Rule 103, M.R.Evid., was satisfied and it was proper for Debbie to
assert on appeal that the trial court's exclusion of the pre-decree
evidence was erroneous.
II
Did the District Court err when it prohibited Pamela Hodges,
a social worker, from offering her opinion about the appropriate
custodial placement of the Johansen children?
When Pamela Hodges was asked by Debbie's attorney if she had
an opinion regarding the appropriate custodial placement of the
Johansen children, Vicvs attorney objected to the question on the
grounds that the witness was not competent to testify to this
issue. The District Court sustained the objection.
On appeal, Debbie contends that the District Court erred under
the Plontana Rules of Evidence when it excluded the social worker's
testimony. Debbie asserts that pursuant to Rule 601, M.R.Evid.,
relating to competency of witnesses, and Rule 702, M.R.Evid.,
relating to expert testimony, Hodges should have been allowed to
offer opinion testimony.
I0
Vic concedes on appeal that Hodges' competency was not at
issue. However, he asserts that Hodges lacked the special
knowledge and skill necessary to make a custodial placement
assessment, and therefore, she was not qualified to testify
regarding the custodial placement of the Jchansen children.
The determination of whether an expert witness is competent or
qualified to testify rests largely with the trial court. Foremanv.
hlirlrzie (1984), 211 Mont. 441, 689 P.2d 1210. This Court will only
disturb the district court's determination when there is an abuse
of discretion. Foreman, 689 P.2d at 1212.
Rule 702, M.R.Evid., which pertains to testimony by experts,
provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a f a c t in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.
Hodges has a master's degree in social work and she has
extensive work history working with children. Moreover, she was
familiar with the parties' situation. As a social worker for the
Sheridan County Department of Family Services, Hodges conducted the
home study with the parties and responded to several complaints
alleging the parties' children were abused or neglected by their
parents. Our review of the record reveals that, pursuant to
Rule 702, M.R.Evid., Hodges was qualified to testify regarding the
appropriate custodial placement of the Johansen children.
Vic's assertion that Hodges lacked the special knowledge and
skill necessary to qualify her to offer a professional opinion
about the appropriate custodial placement of the parties' children
is without merit. A witness's specialization in an area goes to
the weight of the witness's testimony rather than to his or her
competency to testify. fiurzsaker v. Boiemurz Deaconess Foundation (1978),
179 Mont. 305, 321, 588 P.2d 493, 503. Moreover, Montana courts
have recognized that social workers are qualified to testify on
issues of child custody. See,e.g., In theMut1erofC.L.A. (1984), 2 1 1 Mont.
393, 685 P.2d 931. Accordingly, we conclude that the District
Court erred when it excluded Hodges* expert opinion testimony
regarding the appropriate custodial placement of the Johansen
children.
Debbie raises an additional issue on appeal. She requests
this Court to determine whether the District Court erred when it
concluded that the children's physical, mental, moral, or emotional
health were seriously endangered by living with their mother.
Because this case has been remanded to the District Court for a new
trial in which the court is instructed to permit pre-decree
evidence, we need not address this issue.
Finally, Vic filed a cross-appeal in which he asked this Court
to address whether the District Court erred when it ordered him to
pay Debbie's attorney fees. Vic asserts that he was entitled to
attorney fees because the parties' separation agreement provides
that the successful party should recover attorney fees in any
action subsequent to the dissolution. Because we are remanding
this case to the District Court for a new custody modification
hearing and determination, we need not address the issue of the
award of attorney fees at the trial court level.
The order of the District Court is reversed and this case is
remanded for further proceedings consistent with this opinion.
We concur:
November 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Margy Bonner
MacMaster and Bonner
P.O. Box 437
Williston, ND 58801
Gera!d T. .kcrchanbeauit
Gallagher & Archambeault
P.O. Box 512
Glasgow, MT 59230
ED SMITH
CLERIC OF TIIE SUPREME COURT
STATE OF MONTANA