‘Ripple effect’: Court wrongly relied on child’s notes

A trial court erred when it relied on and quoted uncorroborated portions of a minor’s notes to conclude that her father was affecting the child’s “pillars of stability,” the Supreme Court of Virginia has held.

The child was questioned based on notes about her relationship with her father, who objected to admission of the notes as evidence. The trial court, referencing portions of the notes about which the child never testified, ruled against the father and refused to modify a custody arrangement.

Justice Cleo E. Powell, however, couldn’t overlook the “gravity of the trial court’s improper finding,” which created a “ripple effect that could continue to resonate” in future custody
proceedings.

“[A]nything in [the child’s] booklet that is not corroborated by the testimonial evidence has no evidentiary value and, therefore, should not have been considered by the trial court,” she wrote.

Powell reversed and remanded in Powell v. Knoepfler-Powell (VLW 024-6-025).

Message from the court

Jim Kinsel of Protorae Law in Tysons represented the father on appeal. He praised his colleagues — Becky Kinsel and Siobhan Canty — for their trial work.

Calling it a message from the Supreme Court to focus on admitted evidence and not be swayed by unadmitted documents, Kinsel also noted the significance of the high court finally opining on the limits of demonstrative evidence by citing the appeals court.

“The justices had lots of questions about the harmless error standard and we argued that, from a corroboration standpoint, it can’t be harmless,” he told Virginia Lawyers Weekly.

Sharon Filipour represented the mother. While reluctant to having children testify, she was convinced after meeting alone with the child that she wanted to be heard and wouldn’t be traumatized by testifying. Filipour didn’t anticipate the child would bring a book of notes to the trial.

“I didn’t look at it, but I think she was hoping to just submit the notes rather than testify in front of both parents,” Filipour said, adding that in the future she would “certainly instruct the child not to bring any booklets.”

Custody battle

The mother moved to modify custody and visitation for her minor child, referred to as MP. MP’s father objected and moved for primary physical custody. Over the father’s objection, the trial court allowed MP to testify at trial.

MP brought notes to the trial. The judge informed the parties that he would review MP’s notes; neither party objected.

The judge and the parties then asked MP questions about various topics. The father later disputed that his relationship with MP was reflected in her notes, specifically referencing MP’s reaction to his inability to take her dog to a vet appointment.

Interpreting MP’s testimony to mean that her father was affecting her “pillars of stability” and pointing to portions of her notes, the trial court concluded that modifying visitation would be “damaging” to MP.

After the trial court denied his motion to reconsider, the father appealed. The Court of Appeals of Virginia affirmed in an unpublished opinion. The Supreme Court granted certiorari.

Preserved issue

The father insisted that he wasn’t barred from challenging the trial court’s decision to review MP’s notes because the parties were unaware that the trial court was reviewing the notes until it was too late to raise a contemporaneous objection.

Powell said the record, however, belied that assertion.

“Neither party voiced any opposition to the trial court’s actions,” she wrote. “Similarly, when it was apparent that the trial court was relying on the notes as a guide for its questioning of MP, no objections were raised.”

Pointing out the context in which the father objected to admission of MP’s notes as demonstrative evidence, Powell was unable to know for certain which rationale he relied on.

But the father preserved the issue of the trial court’s reliance on MP’s notes in his motion to reconsider with a specific basis for objection and citations to the transcript, which the trial court acknowledged in its later opinion.

‘No evidentiary value’

The father claimed the trial court erred by using uncorroborated portions of MP’s notes as substantive evidence, pointing to the lack of evidence to support a finding that MP felt scared of him and highlighted the trial court’s references to MP’s stuffed bear in the opinion.

MP’s mother responded that the trial court used MP’s notes “to explain the ruling allegorically” in a “misguided attempt to be kind and educational at the same time.”

Although required to consider the factors enumerated in Virginia Code § 20-124.3, the Court of Appeals said in Brown v. Brown that trial courts retain “broad discretion in determining what promotes the child’s best interests.”

The father claimed the trial court abused its discretion by giving significant weight to an improper factor and instilling the uncorroborated statements in MP’s notes with a dispositive evidentiary nature.

“When the trial court admitted the notes into evidence, it did so in a very limited fashion: as a demonstrative exhibit,” the justice explained. “This designation is important because a demonstrative exhibit has no independent probative value. Such exhibits are meant to explain or clarify other substantive evidence.”

Powell said it was telling when the trial court explicitly stated that MP’s notes had “no evidentiary value in and of itself,” thus limiting its value to only those portions MP adopted through her testimony.

“Taken as a whole, because they are a demonstrative exhibit, the evidentiary value of MP’s notes is inextricably linked to the corresponding testimonial evidence that they were meant to illustrate,” the justice said. “In other words, anything in MP’s booklet that is not corroborated by the testimonial evidence has no evidentiary value and, therefore, should not have been considered by the trial court.”

‘Ripple effect’

The record clearly established that the trial court improperly relied on uncorroborated portions of MP’s notes when it decided not to modify the custody arrangement.

“In explaining its conclusion, the trial court appears to have given significant weight to what it described as the ‘three pillars’ that underlie MP’s stability,” Powell pointed out.

MP’s notes confirmed that her mom, her dog and her stuffed bear were the most important things to her.

Unlike MP’s testimony about loving her mother and dog, the judge said her stuffed bear was only mentioned twice at trial and never established it as a pillar of her stability.

Powell also noted that the trial court repeatedly used quotations from MP’s notes to explain its various findings.

Here, MP’s generalized feelings about various topics expressed in her notes could be inferred from her testimony. But that didn’t permit the trial court to use her notes to address matters MP never testified about.

“Most importantly, she never testified about the incident where [the father] refused to take the dog to the vet,” the justice said. “The trial court, however, found that MP viewed that incident as demonstrating that [the father] ‘does not care about anyone but himself.’”

Powell said she couldn’t overlook the “gravity of the trial court’s improper finding.”

“By finding that MP was scared of [the father], the trial court essentially created a ripple effect that could continue to resonate throughout any future custody proceedings,” she wrote, adding that the uncorroborated statements lacked evidentiary value.

“[A]ny future action by [the father] seeking to change the custody arrangement would require him to address this finding, regardless of the fact that it was not based on any substantive evidence,” Powell explained. “Obviously, an improper finding placing a party in such an untenable position simply cannot stand.”

Having found the trial court abused its discretion, the judge reversed and remanded the case for reconsideration.