Tgs v. Dls

608 So. 2d 743, 1992 WL 238111
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 25, 1992
Docket2910146
StatusPublished

This text of 608 So. 2d 743 (Tgs v. Dls) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tgs v. Dls, 608 So. 2d 743, 1992 WL 238111 (Ala. Ct. App. 1992).

Opinion

608 So.2d 743 (1992)

T.G.S.
v.
D.L.S.

2910146.

Court of Civil Appeals of Alabama.

September 25, 1992.

*744 Mary F. Gunter of Woodham & Gunter, P.C., Abbeville, for appellant.

*745 Steven K. Brackin of Lewis, Brackin & Flowers, Dothan, for appellee.

THIGPEN, Judge.

This case involves post-divorce proceedings.

T.G.S. (father) and D.L.S. (mother) divorced in March 1988, and custody of their minor child, H.D.S., was awarded to the mother. The father was ordered to pay child support and he was given visitation rights. At the time of the divorce, the mother was pregnant with the parties' second child, A.G.S. Following A.G.S.'s birth, the mother petitioned for and was granted additional child support.

After the mother's second marriage and divorce, she married a third time, and she and the children moved to Georgia. The mother testified that prior to her third marriage, she telephoned the father to make different arrangements for future visitation. When the father refused, the mother filed a petition to modify, requesting both a change in visitation and an increase in child support. The father answered the mother's petition, contending that she was interfering with his visitation rights. Additionally, the father included in his answer a counter-petition, requesting longer visitation with his children, and requesting that the trial court impute income to the mother in accordance with Rule 32, Alabama Rules of Judicial Administration, thereby decreasing his support payments.

The same day that the father filed his answer and counter-petition, H.D.S. was examined by Dr. Nickelsen, a pediatrician, because the mother alleged possible sexual abuse of H.D.S. by the father. Dr. Nickelsen found no physical evidence of abuse, but he found the mother to be credible, and he therefore forwarded his evaluation results to the Georgia Department of Family and Children Services (DFCS).

A DFCS social worker, Ms. Benedict, investigated the report of alleged sexual abuse. She was convinced that H.D.S. had been sexually abused, based on interviews with the mother and with the child. These interviews included the child's detailed recitation of sexual activity, which Benedict said indicated knowledge beyond that of a normal four-year-old. Additionally, Benedict stated that H.D.S. told her that the father had abused her sister, A.G.S.

In May 1990, the father amended his counter-petition requesting custody of the children, alleging that H.D.S. had been abused by a third party while in the mother's custody, and that the mother should have been aware of this abuse. The mother amended her petition to modify to request that the visitation rights of the father be terminated.

The father filed a motion requesting a psychological evaluation of the mother, the child, and himself, contending that the mother had coached H.D.S. in her accusations, and this motion was granted. The mother, the child, and the father were evaluated by the staff of Dr. McKeown, an Alabama clinical psychologist. At trial, however, the court did not allow Dr. McKeown to testify because of the trial court's determination that Dr. McKeown's assessment of H.D.S.'s situation was based on hearsay. H.D.S. was later examined by a psychologist in Georgia, who also concluded that the child had been sexually abused. A social worker with the Barbour County Department of Human Resources also interviewed H.D.S. on two separate occasions.

Following an ore tenus proceeding, the trial court ordered that the father's visitation "should not be terminated but should be supervised to some extent out of an abundance of caution due [to] the seriousness of the allegations." The trial court's order then set forth precise visitation instructions. Also, the trial court denied the mother's request for an increase in child support.

The father then filed a motion to amend the trial court's order, requesting expanded visitation and requesting a method of corresponding with the children. The trial court denied the father's motion to amend, except as concerned the transmittal of gifts, cards, etc.; hence, this appeal.

The father's first issue is whether the trial court's refusal to admit into evidence *746 the testimony and medical records of Dr. McKeown constitutes reversible error. Specifically, the father argues that the testimony and medical records of Dr. McKeown should have been admitted because such evidence was based on Dr. McKeown's firsthand knowledge of H.D.S. and her parents, and because Dr. McKeown's expert opinion was predicated upon opinions and records of a type customarily relied upon by experts in his profession.

We begin our analysis of this issue by stating the traditional Alabama rule that expert testimony based on the conclusions or opinions of others is not admissible. See Chinevere v. Cullman County, 503 So.2d 841 (Ala.1987).

In Nash v. Cosby, 574 So.2d 700 (Ala. 1991), however, our Supreme Court modified the traditional rule "to reflect a more enlightened viewpoint." Nash, supra, at 704. The Supreme Court stated that "the recent trend has been toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence." Nash, supra, at 704. In Nash, the Supreme Court continued to discuss its reasoning for this modification and it ultimately reversed the trial court for disallowing an expert's opinion as testimony which was based on medical records already admitted into evidence.

Shortly thereafter, the Supreme Court clarified its decision in Nash by stating that Nash "has not changed the traditional rule followed in Alabama that the information upon which the expert relies must be in evidence." Ex parte Wesley, 575 So.2d 127, 129 (Ala.1990). In footnote one of Wesley, the Supreme Court elaborated as follows:

"In Nash we recognized that `the recent trend has been toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence.' 574 So.2d at 704. (Emphasis added.) There, the records upon which the expert partially based his testimony were in evidence. Our recognition of the recent trend, however, is not to be taken as an adoption of that trend, especially considering that the facts in Nash would not support our doing so. Accordingly, the phrase `even in some cases where those [medical] records are not in evidence' should be given no significance insofar as the law of this state is concerned."

Wesley, supra, at 129 n. 1.

Finally, we note that, in W.S. v. T.W., 585 So.2d 26 (Ala.1991), the Supreme Court stated the following:

"[T]he expert witness must base his or her opinion upon either (1) facts of which the witness has firsthand knowledge or (2) facts that are assumed in a hypothetical question asked of the expert. Again, the question of whether a particular witness will be allowed to testify as an expert and the scope of an expert's testimony are largely discretionary with the trial court, and its rulings in this regard will not be disturbed on appeal without a showing of palpable abuse." (Citation omitted.)

W.S., supra, at 28.

In a concurring opinion, Justice Houston stated his understanding of the Supreme Court's current position as to the admissibility of opinion testimony from expert witnesses as follows:

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Bluebook (online)
608 So. 2d 743, 1992 WL 238111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tgs-v-dls-alacivapp-1992.