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In re Marriage of M.R.K.

January 27, 1997

IN RE THE MARRIAGE OF: M.R.K., RESPONDENT, AND V.J.K., APPELLANT.


Appeal from Superior Court of King County. Docket No: 93-3-05998-5. Date filed: 12/15/94. Judge signing: Hon. Charles W. Mertel.

Authored by Walter E. Webster. Concurring: C. Kenneth Grosse, Susan R. Agid.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- This appeal arises from the dissolution of the parties' marriage. The father appeals the parenting plan, which limits his contact with his children based on a finding that he sexually abused his daughter. He argues that the trial court erred in admitting an expert's opinion, hearsay statements, and "grooming" evidence. He also contends that the court erred in refusing to conduct an in camera review of sexual assault clinic records and that there was not sufficient evidence to prove abuse by clear and convincing evidence. Additionally, he appeals the court's characterization of unvested stock options and award of maintenance and attorney fees to the mother. We agree that the court erred in admitting the expert's opinion that the father abused his daughter and in characterizing the stock options as community property, but neither error requires reversal. Because the court did not otherwise abuse its discretion and the evidence was sufficient to support the finding of abuse, we affirm.

FACTS

The parties were married more than five years before they separated in July 1993. They have two daughters, A. and E. When A. was four and a half years old, she disclosed to her mother that her father had inappropriately touched her. At the Eastside Sexual Assault Center, she told Kerry Todd, a social worker, that her father had touched her "private zone" with his finger, put the tip of his "private zone" in her "private zone," and made her touch his "private zone." She made similar disclosures to Dr. Danoff, to an interviewer for the prosecutor's office, and to Carol Cole, a psychologist who had been treating her for almost a year by the time of trial. Dr. Danoff's physical examination of A. was nonspecific. She found that the grooves around A.'s hymen were unusually red, which could be a result of sexual abuse or other reasons. A. has acted out sexually by inappropriately touching her little sister. The father admitted that he sometimes had "partial erections" when playing with A., but he stated that they were not of a sexual nature.

The father presented evidence that the mother has been obsessed with child sexual abuse, has accused other persons of abusing A., and that she persistently and suggestively questioned A. about the subject. He successfully passed polygraph and plethysmograph tests. Additionally, two sexual deviancy experts testified that there was no clinical evidence that he would be likely to sexually abuse a child.

The trial Judge found that the father had sexually abused A. Carol Cole, A.'s therapist, recommended that there be no contact between the father and the girls until he accepts responsibility for the abuse and while A. continues to engage in sexually reactive behavior. The court ordered that the father obtain counseling and that there be no immediate visitation. He further ordered that contact with the father should occur in the future as long as it is in the girls' best interests and the possibility of abuse is remote. He directed that the father's counselor and A.'s counselor develop a plan for achieving contact. If they were unable to achieve a plan by May 1, 1995, they were to mediate a plan with Carol Gray, the court-appointed evaluator, and if unsuccessful, the matter was to be decided on the family law motion calendar. At oral argument, the parties indicated that the father had not yet seen the girls, but that supervised visits were scheduled for the near future.

Discussion

A. Expert Testimony That Father Abused A.

The father first argues that the court erred when it allowed Kerry Todd, a social worker, to testify that she believed that the father sexually abused A.

A witness may properly offer an opinion even if it embraces an ultimate issue to be decided by a trier of fact. ER 704. But an expert may not usurp the fact finder's function of determining witness credibility. Fettig v. Department of Social & Health Services, 49 Wash. App. 466, 477, 744 P.2d 349 (1987), review denied, 110 Wash. 2d 1003 (1988); 5A Karl B. Teglund, Washington Practice, Evidence sec. 309 (3d ed. 1989 & Supp. 1996). An opinion that a certain person sexually abused a child impermissibly invades the fact finder's province to determine witness credibility. Fettig, 49 Wash. App. at 477. See also State v. Florczak, 76 Wash. App. 55, 74, 882 P.2d 199 (1994), review denied, 126 Wash. 2d 1010, 892 P.2d 1089 (1995). Thus, the trial court should not have allowed Todd to testify that she believed the father abused A. The error does not require reversal, however, because we presume, in a civil bench trial, that the court can ignore an expert's inappropriate Conclusions of law. Orion Corp. v. State, 103 Wash. 2d 441, 462, 693 P.2d 1369 (1985), cert. denied, 486 U.S. 1022, 108 S. Ct. 1996, 100 L. Ed. 2d 227 (1988).

B. Hearsay Statements

The father contends that the court impermissibly admitted A.'s hearsay statements through social worker Kerry Todd's testimony and written report. At trial, the father objected to Todd's testimony on the child's statements as hearsay. The court asked the mother's counsel if she was prepared to address "the nine elements," apparently referring to the Ryan *fn1 factors. The mother's counsel argued that it was not necessary to address the factors because Todd's testimony was covered by the hearsay exception for purposes of medical diagnosis, ER 803(a)(4), and ER 703, which allows an expert to base an opinion on facts not in evidence. The Judge stated ...


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