Lloyd v. Lloyd

73 Pa. D. & C.4th 325, 2005 Pa. Dist. & Cnty. Dec. LEXIS 25
CourtPennsylvania Court of Common Pleas, York County
DecidedFebruary 3, 2005
Docketno. 2004 FC 1280-Y03
StatusPublished

This text of 73 Pa. D. & C.4th 325 (Lloyd v. Lloyd) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lloyd v. Lloyd, 73 Pa. D. & C.4th 325, 2005 Pa. Dist. & Cnty. Dec. LEXIS 25 (Pa. Super. Ct. 2005).

Opinion

RENN, J,

This matter is before the court in the context of pretrial custody proceedings. Mother, Julia M. Lloyd, has filed a request to obtain the expert reports (presumably in the form of a “custody evaluation”) of Father’s expert, whom Father, Charles Joseph Lloyd, does not intend to call as a witness. We will grant the request.

FACTUAL AND PROCEDURAL BACKGROUND

From the record and from arguments heard, we determine the following facts. On July 8, 2004, Charles Joseph Lloyd filed a petition for modification from a previous court order entered on August 14, 1998. The parties attended a conciliation conference which resulted in an interim order for custody, pending trial on August 19, 2004. Father requested psychological and drug evaluations of all relevant parties, including the [327]*327children, Julia M. Lloyd’s paramour, and Father’s wife. Mother attended all sessions necessary to complete the report. It is reported that Mother’s paramour refused to cooperate with the evaluations.

Father listed Dr. Shienvold as an expert witness on Father’s pretrial memorandum, which was submitted to the court on or about September 22, 2004, stating the following therein:

“Counsel for Father suggested that [sic] the custody conciliation that a custody evaluation would be appropriate. Mother, through counsel, refused this request. Father thereafter demanded a custody evaluation and home study be performed by Arnold Shienvold Ph.D., a well recognized expert. The evaluation and home study have not yet begun, and it is felt that Dr. Shienvold’s evaluation is necessary to make a determination as to the best interests of the children.” (emphasis added)

After being notified by Father, on or about January 12, 2005, that Dr. Shienvold would not be testifying and the report would not be utilized by Father at trial, Mother filed a petition for special relief on January 19, 2005, requesting a copy of the report that was completed by Dr. Shienvold.

ISSUES

Can a party to custody litigation be compelled to disclose or make available for inspection by an opponent, a report made, or information and data collected by an expert hired by that party if the expert will not be used as a witness at trial?

[328]*328DISCUSSION

General Observations

Discovery in Custody Cases Generally

It has long been the general rule that no discovery is permitted in “simple” custody matters, absent leave of court. Pa.R.C.P. 1930.5. However, motions for special relief and requests for examination of individuals are provided for specifically in the rules for custody matters. Pa.R.C.P. 1915.8 and 1915.13. We have previously held that issues concerning a parent’s mental health, as well as a child’s, is a proper area of inquiry in custody litigation. See Abram v. Abram, 116 York 129 (2003).

We conclude, therefore, that the issue presented by Mother in her petition for special relief is properly before us to request discovery in this case.

Custody Litigation — Best Interests of Child

In any custody case, we are charged with determining the best interests of the child involved. In order to do that, we are required to ensure that a complete record has been developed to enable us to consider the many factors which we are required to consider in determining the best interests of the child. T.B. v. L.R.M., 753 A.2d 873 (Pa. Super. 2000):

“Thus, we emphasize, a full inquiry is essential to determine what serves a child’s best interest; all pertinent facts surrounding the contesting parties must be fully explored and developed____The paramount focus is the best interest of the child involved, not the respec[329]*329tive rights of the contesting parties.” Id. at 890. (citations omitted)

Competing with these principles are individual interests in keeping matters such as medical treatment and psychological counseling private. See Abram v. Abram, 116 York 129 (2003).

Limitations on Discovery

Discovery in custody cases is limited by Rules of Civil Procedure which are applicable to custody actions. See Pa.R.C.P. 1930.5(a), 1915.8 and Pa.R.C.P. 4001.

Co-existing with these rules are statutory privileges which limit the availability of information which might be discovered or used at trial (see, for instance, the psychiatrist-patient privilege at 42 Pa.C.S. §5944), and protections afforded to attorney work product, generally embodied in Pa.R.C.P. 4003.3. We note at the outset that we have concluded, for the purposes of this analysis, that the facts known and opinions held by Father’s expert were “acquired or developed in anticipation of litigation or for trial,” thus triggering the application of Rule 4003.5, and are not matters which came to the attention of the expert during the course of treatment of any of the parties involved in this case.

Father rests his argument on a further limitation placed upon discovery of expert material by Pa.R.C.P. 4003.5:

“(3) A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of [330]*330litigation or preparation for trial, and who is not expected to be called as a witness at trial, except a medical expert as provided in Rule 4010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances ....”

First, we note that the general provisions of Rule 4003.5 provide for discovery of the identity of an expert, and facts known and opinions held by that expert, who is expected to be called as a witness at trial. Father noted in his pretrial memorandum, quite emphatically, we might add, that he intended to call his expert as a witness at trial. He placed Mother on notice of that intention, and Mother relied on that in forgoing her own expert. We noted Dr. Shienvold as an expert witness in our pretrial order.

We conclude, therefore, that listing Dr. Shienvold as an expert “witness” constitutes an “expectation” that the expert will be used as a witness at trial, and, accordingly, the limitation on discovery imposed by Rule 4003.5 is not applicable, and discovery of “facts known and opinions held” by the expert is permitted.

Status of an Expert in Custody Litigation

Experts in custody cases are somewhat different than experts in, for instance, an auto accident case, in that the expert is necessarily made known to the other side early on in the case so that the other party can attend appointments for assessments which are conducted by the expert. Experts can be utilized on the motion of either party, or on the court’s own motion. Pa.R.C.R [331]*3311915.8. In the present case, our interim order for custody pending trial set forth the time limits for requesting an expert and directed all parties to cooperate in obtaining the evaluations. It allocated the costs of the evaluations between the parties. If parties do not cooperate with the evaluations, sanctions may be imposed by the court. Pa.R.C.P. 1915.8(g).

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Related

Commonwealth v. Noll
662 A.2d 1123 (Superior Court of Pennsylvania, 1995)
Matter of Adoption of Embick
506 A.2d 455 (Supreme Court of Pennsylvania, 1986)
T.B. v. L.R.M.
753 A.2d 873 (Superior Court of Pennsylvania, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
73 Pa. D. & C.4th 325, 2005 Pa. Dist. & Cnty. Dec. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lloyd-v-lloyd-pactcomplyork-2005.