Deposition Testimony of Unavailable Witnesses

The Alabama Court of Civil Appeals says a Madison County trial court erred when it refused to admit into evidence in a modification trial the three-year-old deposition testimony of a psychologist who had examined and treated the children in an earlier dependency proceeding. The case is Goetsch v. Goetsch, Case No. 2040309 (Ala. Civ. App. April 14, 2006.

The father and the mother were divorced in 2002 “after what may best be described as extremely acrimonious and protracted proceedings.” The trial court awarded custody of the three minor children to the father. The mother appealed, and the appeals court affirmed without opinion. While the case was in appeal, DHR commenced a dependency proceeding. After investigation, which included the deposition testimony of the psychologist who had treated the children during and after the acrimonious divorce, DHR dismissed the dependency proceeding.

A year later the mother filed a petition for modification seeking custody of the children. The trial court declined to allow into evidence the deposition testimony of the psychologist and awarded custody to the mother. The father appealed, arguing that the trial court should have admitted and considered the deposition testimony of the psychologist. He also made several other arguments that are not relevant here.

Under Alabama Rule of Evidence 804, there are three requirements for allowing into evidence the previous deposition testimony of a witness:

  1. The witness must be unavailable.
  2. The deposition testimony must have been under oath before a tribunal or officer with authority to take testimony and where the opposing side had the chance to test the witness’s credibility by cross-examination.
  3. The issues and parties must have been substantially the same as those in the present case.

The mother argued on appeal that the father failed to demonstrate that the witness was unavailable. The appeals court brushed this argument aside, saying only that “at trial, the mother’s counsel conceded that Dr. Batchelor was not presently within the state. Thus, the father was not required to further demonstrate Dr. Batchelor’s unavailability.”

Rule 804(a)(4) says a witness is unavailable if he or she “is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance . . . by process or other reasonable means.” It’s not clear why the appeals court assumed the second part of the test to be satisfied.

Concerning the second requirement, clearly the deposition testimony was under oath. We are left to assume that the opposing side had the chance to cross-examine her.

It was the third requirement, that the issues and parties be similar, on which the court focused its discussion. The court quoted McElroy’s Alabama Evidence to the effect that “it is not essential that all of the issues on the former proceeding shall have been precisely the same as all the issues on the present trial.” The appeals court then cited the case of Nordan v. State, 39 So. 406 (Ala. 1905), in which the Alabama supreme court allowed the earlier testimony of a deceased witness in a case whose main issues and whose parties were different from those of the case in which the witness had testified. The supreme court admitted the testimony, however, because the specific issue about which the testimony was offered was identical.

After reviewing the evidence presented at the modification trial, and especially the testimony regarding the focus of the dependency investigation, we have concluded that the same concerns that prompted DHR’s involvement in the dependency case, including the eldest child’s suicidal and homicidal ideations and allegations of abusiveness and alcoholism by the father, were also relied upon by the mother in her quest for modification of the original custody judgment. We cannot agree with the mother that the underlying issues presented in both cases — the fitness of the parents to parent the children in the dependency case and whether a change in custody to the mother would materially promote the children’s best interest in the modification case — are not substantially similar.

The appeals court reversed and remanded the case to the trial court to admit and consider the deposition testimony of the psychologist in its custody determination. Because it acknowledged that its ruling might change the trial court’s custody determination, the appeals court pretermitted (expressly declined to address) the father’s other issues.

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