Erin Monahan (Now Isler) v. Garvin Schilling

• Court: Court of Appeals of Kentucky
• Decided: May 6, 2021
• Docket: 2020 CA 000735
• Status: Unknown

Opinion

RENDERED: MAY 7, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0735-MR

ERIN MONAHAN (NOW ISLER) APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 09-CI-504401

GARVIN1 SCHILLING APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.

JONES, JUDGE: Erin Monahan (now Isler) (“Mother”) appeals the Order

Denying Modification of Custody and Granting Modification of Parenting

Schedule entered by the Jefferson Circuit Court (“family court”) on March 23,

2020. Pursuant to the family court’s order, Mother and Gavin Schilling (“Father”)

retained joint custody of their minor child, H.S. (“Child”), consistent with their

1 While the notice of appeal lists “Garvin” as the appellee’s first name, the record establishes that the correct spelling is “Gavin,” which we shall use in this opinion. prior agreement, but Father’s parenting time with Child was increased. On appeal,

Mother challenges the family court’s refusal to allow the court-appointed custodial

evaluator, Dr. Jennifer Cebe, to testify about what Child and his treating therapist,

Dr. Ginger Crumbo, told Dr. Cebe during the evaluation on the basis that said

testimony was hearsay. Having reviewed the record, and being otherwise

sufficiently advised, we affirm.

I. BACKGROUND

The parties have an extensive litigation history before both the family

court and this Court. While we have reviewed the entire record, the issues before

us at this juncture are relatively discrete. Accordingly, we summarize only the

factual and procedural history necessary to a proper understanding of the instant

dispute.

Mother and Father were never married but were in a romantic

relationship with each other for some time. Child was born in October 2008 while

Mother and Father were still a couple. However, approximately a year and a half

after Child’s birth, Mother and Father ended their relationship. Thereafter, the

parties came to an agreement with respect to custody and parenting time. Pursuant

to the terms of an agreed order entered on October 10, 2010, Mother and Father

shared joint legal custody of Child, and Child’s time was divided between the

parties with Mother having Child about sixty-five percent of the time. By order

-2- entered July 12, 2012, the 2010 agreed order was modified expanding each

parent’s weekend time and expanding Father’s holiday and vacation time.

Mother and Father are actively involved in Child’s life. And, Child

has relationships with both sides of his family, including with Mother’s husband,

Scott Isler (“Stepfather”) and Child’s paternal grandmother, Rusti Schilling

(“Paternal Grandmother”). Even though both parents love and desire to spend time

with Child, their parenting styles differ dramatically, and certain disagreements

arise from time to time regarding Child’s extracurricular activities, schedule,

schooling, and medical care. Complicating matters, Child has been diagnosed with

Tourette Syndrome, Attention Deficit Hyperactivity Disorder, an anxiety disorder,

and a specific learning disorder with impairment in mathematics. Child, who was

born prematurely, also takes daily Nutropin growth-hormone injections.

In December of 2011, the family court ordered Child to attend therapy

with Dr. Ginger Crumbo. This order was entered in an attempt to help the parties

better co-parent Child and understand his needs. In August of 2015, the family

court granted Mother’s motion to implement Dr. Crumbo’s recommendations

relating to Child’s on-going treatment. Since that time, Child has continued to see

Dr. Crumbo approximately once per week. Pursuant to Dr. Crumbo’s

recommendation, the family court appointed Dr. Jennifer Cebe “to conduct a

parenting/psychological evaluation and to communicate with [Dr. Crumbo] as to

-3- her concerns and the specific type of evaluations that she believes would be helpful

in her treatment of the minor child.”

Dr. Cebe’s evaluation was quite extensive. She had Mother and

Father fill out questionnaires and conducted clinical interviews of each parent. She

observed Child in sessions with each parent and alone. She performed

psychological testing of Mother and Father to rule out any personality pathology

that might impact parenting as well as to identify personality traits that may impact

the parties’ ability to co-parent Child. She also interviewed Child; Stepfather; Matt

Vevoff, the parties’ court-appointed, co-parenting counselor; and spoke with Dr.

Crumbo with respect to Child’s therapy. Dr. Cebe completed her written

evaluation on or about February 18, 2019.2

Therein, Dr. Cebe opined that the high conflict between the parties

had decreased their ability to co-parent over time and recommended that if the

family court concluded that joint custody was no longer workable, Mother should

be awarded sole custody. Dr. Cebe further opined that Child would do better with

the stability provided by a single, primary caregiver, and recommended Father’s

timesharing/visitation with Child be reduced to every other weekend Friday

2 Completion of the evaluation was delayed when Father appealed the family court’s order for the evaluation on the basis that the family court lacked jurisdiction to order a custodial evaluation where neither he nor Mother had moved to modify custody. We affirmed the family court’s order, and discretionary review was denied by the Kentucky Supreme Court. Schilling v. Monahan, No. 2016-CA-0842-ME, 2017 WL 2609242 (Ky. App. Jun. 16, 2017).

-4- through Sunday and a two-hour visit during the week. Dr. Cebe indicated that she

believed Mother should be selected as the primary caregiver because Mother’s

home provides better structure and dependability and Child is less anxious in

Mother’s home. Dr. Cebe further opined that shorter periods of time with Father

would help Child build better trust.

Shortly after the completion of Dr. Cebe’s written evaluation, on or

about February 26, 2019, Mother filed a motion with the family court seeking to

modify custody from joint to sole custody in her favor and to reduce Father’s time

with Child. With respect to custody, Mother cited the parties’ inability to agree on

major parenting decisions such as the best school for Child, Child’s schedule, and

Child’s medical care. In her motion, Mother stated that the parties’ inability to

agree placed too much stress on Child and she believed granting her sole custody

would eliminate some of that stress. With respect to parenting time, Mother

expressed concern about Father’s lack of a structured schedule for Child, and cited

examples where she did not believe Father consistently administered Child’s

medications, particularly his growth hormone injections.

Father objected to Mother’s request to change custody from joint to

sole custody, noting his desire to be involved in Child’s life and the many

agreements the parties have been able to reach in the past, including a Christian

upbringing for Child. He also requested that the parenting time schedule be

-5- modified so that he would receive more time with Child, not less time. He

believed that more time with him would have positive effects on Child’s

development as he believed Mother did not do enough to help Child establish peer-

appropriate friendships and to promote outside extracurricular activities such as

athletics. Father also maintained that his reduced time with Child limited Child’s

ability to bond with Father’s extended family.

Prior to the family court’s hearing on the modification motions, Father

subpoenaed Child’s treatment records with Dr. Crumbo. Mother responded that

she believed the records might be protected by the psychotherapist-patient

privilege (KRE3 507) and only Child had the right to waive the privilege. Mother

suggested that the family court should appoint a guardian ad litem (“GAL”) to

represent Child for the purpose of evaluating whether to challenge Father’s

subpoena. The family court heeded Mother’s suggestion and appointed a GAL for

Child. The GAL and Dr. Crumbo objected to Father’s subpoena. The family court

concluded that the records were privileged and quashed Father’s subpoena. See

Order of 8/2/2019 as amended by Order of 10/15/2020.

In November 2019, the family court conducted a two-day hearing on

the parties’ motions. Mother; Father; Stepfather; Paternal Grandmother; Child’s

paternal aunt, Blair Schilling; and Dr. Cebe testified at the hearing. Before Dr.

3 Kentucky Rules of Evidence.

-6- Cebe took the stand, Father moved to exclude Dr. Cebe from testifying to any

statement made to her by Child and/or Dr. Crumbo, including statements made by

Child to Dr. Crumbo, and for the redaction of all such statements from Dr. Cebe’s

report and file notes prior to those documents being admitted into evidence. Father

argued that the statements by Child and Dr. Crumbo were hearsay since neither

was set to testify at the hearing, and that the statements Child made to Dr. Crumbo

were further protected by the psychotherapist-client privilege. The family court

sustained Father’s motion on the ground that the statements were hearsay, and

therefore Dr. Cebe was not permitted to testify about her conversations with Child

and Dr. Crumbo, and any reference to such statements was redacted from Dr.

Cebe’s written report prior to admission. The testimony and evidence was

admitted by avowal outside the presence of the family court judge.

Following the hearing, the family court entered an order denying

Mother’s motion to modify custody and reduce Father’s timesharing and granting

Father’s motion for additional timesharing with Child. Specifically, the family

court modified the parenting schedule to give each parent equal parenting time

with Child by adopting a rotating week on/week off schedule. The family court’s

order was entered as part of a lengthy thirty-four-page opinion in which the family

court extensively summarized and evaluated the oral testimony and other evidence

of record.

-7- Of particular importance, the family court laid out its rationale for not

following the recommendations made by Dr. Cebe. To this end, the family court

noted that Dr. Cebe did not interview Paternal Grandmother, even though it was

undisputed that she was a central figure in Child’s life; did not review Child’s

medical records; did not review the medical records (including those pertaining to

the mental health) of the parents and did not consult with the parents’ treating

physician(s) or therapist(s); and only reviewed Child’s school records from 2014

and 2015, not the more recent records from 2017, 2018, or 2019.

Mother timely moved for additional findings of fact and to alter,

amend, or vacate the family court’s order. After the family court denied Mother’s

motion, she appealed to our Court.4

II. STANDARD OF REVIEW

The family court’s decision to limit Dr. Cebe’s testimony and require

her report to be redacted prior to being admitted into evidence forms the basis of

4 While Mother’s brief contains citations to the record, an appellant’s brief must also “contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” CR 76.12(4)(c)(v). Mother states in the body section of her brief that she preserved her various arguments for review; however, she failed to indicate where in the record she did so. “[A] brief may be stricken for failure to comply with any substantial requirement” of the appellant rules for briefing. CR 76.12(8). In this case, we have elected not to strike Mother’s brief because the issues are relatively insular, and the citations provided throughout have allowed us to conduct a meaningful review. However, counsel is reminded that “[i]t is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved.” Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). Other panels may not exercise such leniency should counsel fail to follow the briefing requirements in future appeals.

-8- Mother’s appeal. “A trial court’s ruling on the admission of expert testimony is

reviewed under the same standard as a trial court’s ruling on any other evidentiary

matter.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky.

2000). “An appellate court reviews a trial court’s evidentiary rulings for an abuse

of discretion[.]” Werner Enterprises, Inc. v. Northland Ins. Co., 437 S.W.3d 730,

734 (Ky. App. 2014). “A trial court abuses its discretion when its decision is

‘arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’” Pope

v. Commonwealth, 617 S.W.3d 364, 373 (Ky. 2021) (citing Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999)).

III. ANALYSIS

Mother argues that the family court should not have limited Dr. Cebe

from testifying about either the statements Child made to his therapist, Dr.

Crumbo, which she shared with Dr. Cebe, or statements that the Child and Dr.

Crumbo made directly to Dr. Cebe. Likewise, Mother argues that the family court

erred in directing Dr. Cebe’s written evaluation report to be redacted to remove

such statements prior to its admission.

Father moved to exclude the subject statements on the basis that they

were hearsay and that Child’s statements to Dr. Crumbo were further protected by

the psychotherapist-patient privilege pursuant to KRE 507. The family court

sustained Father’s objection on hearsay grounds. Mother argues the family court

-9- abused its discretion when it did so, and requests us to vacate the family court’s

decision of May 7, 2020, denying her motion for sole legal custody, and remand

this matter to the family court for another hearing with instructions to permit Dr.

Cebe to testify concerning Child’s and Dr. Crumbo’s statements and to admit Dr.

Cebe’s unredacted report into evidence.

KRE 801(c) defines hearsay as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” The statements at issue fall within the hearsay

rule, and Mother has failed to identify any valid exception that would allow their

introduction. Nevertheless, Mother argues that the statements should have been

admitted pursuant to KRE 703(a):

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 the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(Emphasis added.) “Stated differently, the facts and data that an expert relies upon

in forming his or her opinion do not need to be admissible in order for the expert’s

opinion itself to be admissible.” Exantus v. Commonwealth, 612 S.W.3d 871, 899

(Ky. 2020).

-10- Thus, “[a]n expert witness may express a testimonial opinion that is

based in part upon hearsay evidence[.]” American Hardware Mut. Ins. Co. v.

Fryer, 692 S.W.2d 278, 281 (Ky. App. 1984). This does not mean, however, that

the expert is entitled to testify to the exact nature of the hearsay statements relied

upon in reaching her ultimate conclusion. “KRE 703(b) does allow evidence not

otherwise admissible to come in [at the discretion of the court] to explain the basis

of an expert’s opinion.” Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011).

However, before allowing such information to be presented the court must

determine it is “trustworthy, necessary to illuminate testimony, and

unprivileged[.]” KRE 703(b).

It is undisputed that Dr. Cebe based her opinion, in part, on her

interviews with Child and Dr. Crumbo. In fact, the family court acknowledged as

much in its opinion noting that it understood Dr. Cebe’s opinion was based, in part,

on Child’s preferences and the opinions of Dr. Crumbo. The family court did not

need to know the exact nature of Child’s and Dr. Crumbo’s statements to evaluate

the persuasiveness of Dr. Cebe’s conclusions and recommendations. Given that

this was a bench trial as opposed to a jury trial, we are confident that the family

court appropriately considered whether it needed to hear the exact statements to

illuminate Dr. Cebe’s testimony. See Hoff, 394 S.W.3d at 374. We cannot

conclude that the family court’s decision not to allow the hearsay statements into

-11- evidence prejudiced Mother, especially where the family court’s decision to depart

from the recommendations had nothing to do with the statements.

Finally, Mother argues the family court erred in quashing Father’s

subpoena for Dr. Crumbo’s records. Before us, she now argues that the records

should not have been protected by the psychotherapist-patient privilege. We

believe her argument in this regard is disingenuous at best. Mother did not seek

the records; they were sought by Father. And, Mother did not stake out an

affirmative position when this issue was being argued before the family court;

however, she brought up the privilege, asserted that neither Mother nor Father

could waive it on behalf of Child, and suggested appointment of a GAL to

represent Child’s interests. Now that Mother believes the records would be

favorable to her case, she complains about the subpoena having been quashed, a

subpoena Father, not she, issued in the first place. Had Mother desired to have Dr.

Crumbo testify she could have included her on her witness list. She did not.

Moreover, it is clear that Dr. Cebe’s report factored Dr. Crumbo’s treatment of

Child into its final conclusions, a fact the family court was well aware of and took

into consideration. Accordingly, we find no reversible error with respect to Dr.

Crumbo’s records.

IV. CONCLUSION

For the foregoing reasons, we affirm the Jefferson Circuit Court.

-12- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

William D. Tingley Ellie T. Schilling Louisville, Kentucky New Orleans, Louisiana

J. Baxter Schilling Louisville, Kentucky

-13-