No. 93-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
JUDITH A. BONAMARTE,
Petitioner and Respondent,
-v-
MARK J. BONAMARTE,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald E. White, Bozeman, Montana
For Respondent:
Marcelle C. Quist, Quist Law Office, Bozeman,
Montana
Submitted on Briefs: November 5, 1993
JAN 4 g'j4
:
,~.
Decided: January 4, 1994
Filed:
G1.i . .? Siir"r?EiriE COURT
SiriYE OF IUION'I'ANA
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from an Eighteenth Judicial District Court,
Gallatin County, decision in a dissolution action. We reverse and
remand for a new trial.
The dispositive issue on appeal is whether the petitioner was
properly allowed to testify by telephone, over the objection of the
respondent, at the hearing on the merits.
The petitioner, Judith Spillane (f/k/a Judith Bonamarte -
Judith) and the respondent, Mark Bonamarte, (Mark) were married on
April 29, 1990, in New Jersey but separated in June of 1991 when
Judith obtained a temporary restraining order alleging physical and
emotional abuse and threats of violence by Mark. Judith filed a
petition for dissolution in July of 1991, and moved to New Jersey
the following month, at which time she was six months pregnant.
There is one child of the marriage, Quentin Christopher
Spillane (Quentin), born on November 18, 1991. Quentin has resided
with his mother in New Jersey at all times. Mark continues to
reside in Montana. The parties have agreed that Mark can exercise
supervised visitation with Quentin in the state of New Jersey.
This dissolution action came before the Eighteenth Judicial
District Court on February 4, 1993, but a portion of the trial was
postponed until February 19, 1993, when the trial court decided
that Judith could testify from New Jersey via the telephone. The
telephonic testimony occurred on February 19 over Mark's objection.
On March 22, 1993, the trial court issued its decision awarding
sole custody of Quentin to Judith and ordering Mark to pay $310.59
2
per month for child support, plus arrearages. The court also
concluded that Mark could not require that Quentin use his last
name, Bonamarte, instead of Judith's last name, Spillane.
Judith continues to fear Mark and for this reason, as well as
the expense of traveling and her inability to find adequate child
care for Quentin if she traveled to Montana, she made the request
to testify by telephone at the hearing on the merits. It is upon
the issue of the District Court's allowing her telephonic testimony
that the disposition of this case rests.
Our standard of review relating to discretionary court rulings
is whether the court abused its discretion. Steer Inc. v.
Department of Revenue (lWO), 245 Mont. 470, 475, 803 P.2d 601,
604.
Mark states that the hearing was originally scheduled for
February 4, 1993, but when Judith did not appear, the court
continued the matter until February 19, 1993, when it allowed
Judith to testify by telephone from New Jersey over Mark's
objection. He argues that Judith was not placed under oath by a
person authorized to administer oaths but that she was merely
introduced by someone who claimed to be Judith's supervisor and
stated that she knew Judith. At that time, the Court administered
the oath and Judith testified. Mark also reminds this Court that
it was Judith who chose Montana as the forum for the dissolution.
Mark also argues that Judith was unable to testify as to
matters that required documentary evidence to be considered by the
court involving the parties1 income, assets and debts. He states
that his counsel's cross-examination of Judith concerning the
parties' accounts was difficult because the documents being
discussed were not available for her perusal in New Jersey. He
states that he could not fully cross-examine Judith because the
testimony was by telephone.
Finally, Mark argues that "(Rule 611(e)), [M.R.Evid.], make[s]
it absolutely clear that a party in all court proceedings (civil
included) has a right to confrontation of witnesses and that a
witness can only be heard in the presence of the Court and
parties." He concludes that "unless other arrangements had been
previously made (such as a prior deposition) there was without
question, a clear violation of the rule. The only remedy at this
time would be to return the case for a new trial."
Judith counters that she was afraid of Mark because of past
domestic abuse and therefore did not want to return to Montana to
testify. Also, she contends that she could not afford the expense
of traveling to Montana nor could she find child care for her son
and that for these reasons, she wished to testify by telephone from
New Jersey, her current home.
Judith asserts that she did testify in the "presence" of her
husband and that she was subject to examination by all parties to
the action. Further, Mark did not dispute that it was Judith who
testified over the telephone. Moreover, Rule 611(e) allows for
exceptions to the rule, this case falls within those exceptions and
the court has discretion to decide whether to permit telephonic
testimony. Finally, Judith maintains that if the decision to allow
telephonic testimony is error, it is harmless error because it did
not affect the husband's substantial rights.
Factually, this is a difficult case. It is hard to fault the
~istrictJudge who was obviously trying to make the best of a
difficult situation and to accommodate Judith's concerns and the
logistical and financial problems associated with her personal
appearance at trial. Given the law, however, we must,
nevertheless, conclude that the trial court abused its discretion
when it allowed Judith to testify by telephone over objection in
lieu of personally appearing in court at the hearing on the merits.
This error denied Mark a meaningful opportunity to confront the
witness, Judith, and to conduct a proper cross-examination. This
is more than harmless error and warrants reversal and remand for a
new trial.
Discussion
Requiring a witness to testify personally at trial serves a
number of important policies and purposes. A witness' personal
appearance in court:
1. assists the trier of fact in evaluating the
witness' credibility by allowing his or her
demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of
the occasion;
4. assures that the witness is not being coached
or influenced during testimony;
5. assures that the witness is not referring to
documents improperly; and
6. in cases where required, provides for the
right of confrontation of witnesses.
See Weber, Permissibilitv of Testimonv bv Telephone in State Trial,
85 ALR4th 476, 481. We agree that these are sound considerations
for requiring, except under specific circumstances within the
parameters of our procedural rules and applicable statutes, that
witnesses testify in person at trial.
In particular, we note that the right of confrontation long
provided in all criminal cases, is also required in civil cases in
Montana under Rule 611(e) M.R.Evid. Rule 611, M.R.Evid., is
primarily based on the similar federal rule of evidence. However,
Montana's subsection (e), is original and provides:
Confrontation. Except as otherwise provided by
constitution, statute, these rules, or other rules
applicable to the courts of this state, at the trial of
an action, a witness can be heard only in the presence
and subject to the examination of all the parties to the
action, if they choose to attend and examine.
Rule 611(e), M.R.Evid. The importance in Montana of the
requirement that a witness testify at trial in the presence of all
parties is evidenced by the inclusion of subsection (e) in our
adoption of Rule 611, M.R.Evid. The reasoning behind Montana's
addition of subsection (e) is illustrated in Coy v. Iowa (1988),
487 U.S. 1012, 1019-1020, 108 S.Ct. 2798, 101 L.Ed.2d 857.
(Citations omitted.)
The perception that confrontation is essential to
fairness has persisted over the centuries because there
is much truth to it. A witness "may feel quite
differently when he has to repeat his story looking at
the man whom he will harm greatly by distorting or
mistaking the facts. He can now understand what sort of
human being that man is.tt It is always more difficult to
tell a lie about a person "to his face" than "behind his
back." In the former context, even if the lie is told,
it will often be told less convincingly. The
Confrontation Clause does not, of course, compel the
witness to fix his eyes upon the defendant; he may
studiously look elsewhere, but the trier of fact will
draw its own conclusions. Thus the right to face-to-face
confrontation serves much the same purpose as a less
explicit component of the Confrontation Clause that we
have had more frequent occasion to discuss-the right to
cross-examine the accuser: both llensur[e]the integrity of
the factfinding process."
Although Coy is a criminal case and applies to a
constitutional protection, the principles behind the right to
confront witnesses are applicable to civil cases in Montana, as
well, and that right is guaranteed in Rule 611 (e), M.R.Evid. The
integrity of the factfinding process at trial is undermined where
the parties do not have the opportunity to confront each other or
the witnesses, where the finder of fact does not have the
opportunity to observe the parties and the witnesses and where the
opposing party cannot effectively cross-examine the other party or
the witnesses.
If the phrase "a witness can be heard only in the presence and
subject to the examination of all the parties.. .I1 is to have any
meaning, then, in the absence of a specific rule or statutory
exception to the contrary, the witness must be physically present
in the courtroom to testify personally at trial unless all parties
and the court agree to a different method of examination which
protects the parties1 rights of confrontation and cross-examination
and, at the same time, allows the fact finder to assess the
witness' credibility, testimony and the evidence presented.
Here, it was impossible for the court to make a determination
as to the relative credibility of the party-witnesses because it
did not have an opportunity to observe the testimony of both Mark
and Judith. The parties in a dissolution action often deliver
conflicting evidence, and it is the court's role to determine who
is the more credible witness. This can be accomplished most
effectively by observing each party's demeanor during testimony.
Judith's reasons for testifying over the telephone included
fear of Mark, cost of travel and inability to obtain adequate child
care for her son while she traveled to Montana for the hearing.
Although we recognize that Judith had legitimate concerns about
returning to Montana, these concerns do not outweigh the necessity
for the trial court to determine credibility. In this instance,
the court could not evaluate the demeanor of the witness nor could
it determine whether she was being coached or was improperly
referring to documents.
Moreover, it was difficult for Mark's counsel to effectively
cross-examine Judith about the couple's financial records because
Judith did not have those records or copies of those records to
which she could refer and provide pertinent testimony. We cannot
say that this was a fair trial on the merits when one side was so
obviously handicapped and was unable to effectively confront and
cross-examine the adverse party.
Furthermore, alternative solutions to Judith's problems and
concerns were available under Section V., Depositions and
Discovery, M.R.Civ.P., and one or more of those alternatives could
have been pursued instead of simply allowing her telephonic
testimony over objection. As Mark's counsel stated during the
hearing, "this case has been pending for a long time already. She
was not going to be here, that's fine, but we could have done this
by deposition a long time ago. As recently as this week, I allowed
Mr. Bonamarte to be deposed. That could have been done is [sic]
she wasn't going to be here."
In this case, for example, it would have been possible to
present Judith's testimony at trial by videotaped deposition. See,
Rule 30 (h), M.R.Civ.P. This was done quite effectively in Ferrante
by Ferrante v. Ferrante (N.Y. Sup. 1985) , 485 N.Y. S.2d 960. The
procedure utilized there is described as follows:
Plaintiff's counsel was advised in advance of the date
and time of the telephone conference call. He was
instructed to have present at plaintiff's nursing home at
the time of the conference call, a notary to administer
the oath to the witnesses and a videotape operator to
record the witnesses' testimony. He was also instructed
to provide the plaintiff with exact legible copies of all
exhibits to be introduced. The purpose of this was to
insure that plaintiff, after identifying each exhibit,
could hold it up to the camera to be videotaped, thus
permitting the court when reviewing the tape, to ensure
that the marked exhibits and the copies in plaintiff's
possession were the same.
Ferrante, 485 N.Y.S.2d at 962.
The plaintiff/witness in that case was a 92 year old woman who
was in poor physical condition and was permanently confined to a
nursing home in Florida. The court, in solving the dilemma posed
by the necessity of taking the plaintiff's testimony without her
presence in court while still protecting the rights of the
defendant, stressed the importance of the videotaped record of the
testimony. It particularly noted that the plaintiff was provided
with copies of each exhibit and she was able to examine them before
they were admitted into evidence. Each page of the copy of each
exhibit was also videotaped to insure that the proper documents
were being used and admitted.
While, within the parameters established in our procedural
rules and applicable statutes, the court and counsel are free to
agree upon and to utilize different methods of presenting the
testimony of and cross-examining a party or witness unable to
appear personally at trial to testify, the above-described method
at least ensures that the witness' identity can be established,
assures that the witness is not being coached, assures that the
witness is not improperly referring to documents ( 8 5 ALR4th at
481), and assures that any marked exhibits and copies of the
exhibits being referred to and offered are the same. (Ferrante,
485 N.Y.S.2d at 962.) In addition, that method provides the court
with a visual record of the witness' testimony and allows the fact
finder the opportunity to draw conclusions about demeanor and
credibility. Ferrante, 485 N.Y.S.2d at 962.
Finally, we do not here adopt a se rule that would
preclude the use of telephonic testimony at trial in all cases or
circumstances. Where the trial court approves and all parties
consent, or at least have sufficient notice to object and/or make
alternative arrangements, we see no reason why telephonic testimony
cannot be utilized in appropriate situations where special or
exigent circumstances dictate the necessity for that type of
testimony, where rights of confrontation and cross-examination are
not substantially compromised or are otherwise adequately
preserved, where the identity and credibility of a witness are not
critical and where there is no need to use documentary or tangible
exhibits in examining the witness. "Generally, special
circumstances such as exigency, consent and knowledge of the
witness1 identity and credentials, have dictated the admissibility
of telephonic testimony ....In the absence of exigency or consent,
telephonic testimony generally has not been allowed. " Byrd v. Nix
(Miss. 1989), 548 So.2d 1317, 1319-1320. (Citations omitted.)
(Emphasis added. ) See also: Aqua Marine Prod. v. Pathe Computer
(N.J. 1988), 551 A.2d 195, 200.
None of those circumstances are present in the instant case.
Although we sympathize with Judith's position and the District
Court's attempt to accommodate her situation and concerns, in this
case allowing her to testify by telephone at the hearing on the
merits over the objection of the adverse party was not an
acceptable substitute for her personal appearance in court,
particularly given the significance placed upon the right to
confront witnesses in civil trials in Montana as set forth in Rule
611(e), M.R.Evid. "The opportunity to observe a witness is so
critical to judicial control and effective cross-examination that
its denial is manifestly prejudicial." State ex rel. Juv. Dept. v.
Gates (Or. 1987), 740 P.2d 217, 218.
We hold that the District Court abused its discretion in
allowing Judith to testify by telephone over objection at the
hearing on the merits. We reverse and remand for a new trial in
order to allow Mark a meaningful opportunity to "confront" the
witness and to effectively cross-examine and in order to afford the
opportunity for the trial court to observe the witness and make its
determination as to her credibility.
In view of our holding here and the necessity for a new trial,
we decline to rule on the other issues raised by the parties
involving child support, custody and the District Court's decision
to allow Quentin to retain Judith's surname.
Reversed and remanded for further proceedings consistent with
this opinion.
We Concur: