In re the Marriage of D_M_B

798 S.W.2d 399, 1990 WL 170541
CourtCourt of Appeals of Texas
DecidedOctober 30, 1990
DocketNo. 07-89-0283-CV
StatusPublished
Cited by2 cases

This text of 798 S.W.2d 399 (In re the Marriage of D_M_B) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of D_M_B, 798 S.W.2d 399, 1990 WL 170541 (Tex. Ct. App. 1990).

Opinion

BOYD, Justice.

Appellant R_L_B_brings this appeal from a judgment dissolving the marriage of herself and appellee D_M_B_and dividing the community property of that marriage. In the judgment appellee was appointed managing conservator of R_, the minor child born to the marriage who was eight years [401]*401old at the time of trial. Appellant attacks the judgment in thirteen points which we will discuss sequentially. We affirm the judgment of the trial court.

In her first point, appellant argues the trial judge erred in making a comment to the jury concerning appellant’s testimony. The colloquy giving rise to this point began when appellee’s counsel queried appellant about her complaints concerning appellee’s treatment of the minor child. The following exchange gives rise to this point:

A. Those are the physical things. The emotional things are, of course, the most important ones.
[Appellee’s counsel]. Your honor, we are not concerned about emotional things in regards to his care of the child, because we feel that she’s not qualified.
The Court: Okay. She has answered the question now.
[Appellant’s counsel]. I object, your hon- or, to the witness not being permitted to fully answer the question asked.
The Court: She has answered the question. Overruled.
[Appellant’s counsel]. And also, for the purposes of the record, I want to object to the comment by the Court to the jury.
The Court: What comment did I make?
[Appellant’s counsel]. The Court stated to the jury that, in the Court’s opinion, the witness was finished answering the lawyer’s question.
The Court: Okay. Note it for the record, if that is the objection. That is the ruling of this Court.

The general rule is that a presiding judge at a trial must conduct it in a fair and impartial manner and refrain from making unnecessary comment or remarks during the course of a trial which may tend to result in prejudice to a litigant, or is calculated to influence the minds of the jury. Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656, 664 (Tex.Civ.App.—Amarillo 1975, no writ). However, it is also the rule that a judge is necessarily allowed discretion in expressing himself while controlling the trial of a case, and reversal of a judgment should not be ordered unless there is a showing of impropriety, coupled with probable prejudice, and the rendition of an improper verdict. Texas Employers Ins. Ass’n v. Draper, 658 S.W.2d 202, 209 (Tex.App.—Houston [1st Dist.] 1983, no writ). ,

When read in the correct context, we do not think the judge’s remark was of such a nature as to require reversal. It did not amount to an assessment of the validity of the witness’s testimony or an indication of the judge’s opinion of her credibility. Moreover, we note that subsequent to the questioned colloquy, in response to her attorney’s specific queries, appellant testified in some detail about the child’s emotional needs which she felt were not being addressed by appellee. Appellant’s first point is overruled.

In her second point, appellant argues the trial court erred in excluding from evidence certain portions of her exhibits 11 and 12. Specifically, appellant complains about the exclusion of the “Childhood Apperception Test” portion of the records of Dr. Phillip C. McGraw, a psychologist, arguing it was admissible by virtue of Texas Rules of Civil Evidence 803 and 805. The test consists of a question and answer dialogue between the minor child and an examiner together with a brief story made up by the child involving three children and their family. According to the doctor, the test in question, together with others received into evidence, was used by him in the treatment and evaluation of the child. The excluded test is denominated as exhibit 11a in the record.

Dr. McGraw testified that he assessed the child as “very much a mainstream young lady” with some stress and anxiety as a result of the parental discord. However, he thought, “long term she’s basically very well adjusted.”

The excluded portion of appellant’s exhibit 12, about which complaint is made, is denominated as exhibit 12a. It is a typed record of statements made by appellant to the doctor and entered by him or under his direction on a sheet entitled “Daily Treatment Record.” The sheet contained statements such as, “Child hysterical when she [402]*402had to go back to father,” “Child says she hates father,” and “Father inattentive to child’s needs.” The psychologist testified that it was his practice to receive a history of the complaints and a history of the patient. He records those items he believes to be significant in such a record to assist him in arriving at a diagnosis and course of treatment. The purpose of his examination of appellant, and the history taken, in his words, was

for psychological evaluation to determine basically two things. One, her overall level of adjustment and, two, her suitability as a potential single parent, how adaptive she would be to rearing R_ as the primary managing conservator, so those were the two presenting questions.

Appellant contends that the exhibits were admissible under Texas Rules of Civil Evidence 803(3), (4) and (6)1. In connection with exhibit 11a, she particularly contends that certain of the child’s responses as to her desire to live with her mother were relevant and admissible as declarations of her state of mind and desire concerning her custody. The nature of appellant’s challenge under this and succeeding points requires us to briefly review pertinent rules and applicable principles of law.

Rule 801 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.” Rule 802 provides that hearsay is not admissible except as provided by' the Rules of Civil Evidence, other rules prescribed by the Supreme Court, or by law. Rule 803, provides that certain types of evidence are not excluded by the hearsay rule even if the declarant is available as a witness. Subsection (3) exempts a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. Subsection (4) exempts statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment. Subsection (6) exempts a “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses” if kept in the regular course of business and if made at or near the time of the event. Rule 805 provides that hearsay included within hearsay is not excluded if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules.

It has long been established in a custody proceeding, that the preference of the child as to its managing conservator, although not controlling, may be weighed along with other evidence in making that decision.

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