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Gillespie vs. Gillespie, CSA, June 29, 2012

Posted on: 07/23/2012
Gillespie vs. Gillespie
 
Court of Special Appeals of Maryland
Nos. 960, 2153, Sept. Term, 2011.
June 29, 2012.
 
2012 WL 2483429
 
Ex-husband filed a motion to modify custody. The Circuit Court for Frederick County modified the physical access of the children and also modified legal custody, granting ex-husband tie-breaking authority in the event of an impasse. Ex-wife appealed.
 
The Court of Special Appeals held that:
 
  1. The trial court could consider doctor's report for the purpose of evaluating the validity and probative value of opinion of psychologist, who relied on doctor's report in reaching her conclusions;
  2. The trial court did not improperly consider as substantive evidence doctor's report;
  3. The evidence was sufficient to support trial court's finding that material change of circumstances had occurred, so as to warrant change of custody; and
  4. The trial court did not abuse its discretion in modifying joint physical and legal custody so as to grant significantly more access to ex-husband than ex-wife and to grant ex-husband tie-breaking authority in the event of an impasse.
 
Affirmed in part; vacated in part; and remanded.
 
From the opinion:
 
It is well established that experts may rely upon inadmissible evidence in formulating their opinions. Md. Rules 5–703, 5–705. Moreover, evidence “that might not otherwise be admissible may, under Rule 5–703(b), be properly admitted if it is relied upon by an expert or is necessary to illuminate testimony.” Brown v. Daniel Realty Co., supra, 180 Md.App. at 118, 949 A.2d 6. Rule 5–703(b) provides:
 
“If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert ... may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.”
 
In Hutton v. State, 339 Md. 480, 513, 663 A.2d 1289 (1995) the Court of Appeals stated:
 
If trustworthy, but inadmissible, facts or data are relied upon by an expert in forming an opinion, the jury is instructed that the underlying facts are not substantive evidence. Md. R. Evid. 5–703(b). That, however, is not a concern in the instant case. The jury saw and heard the victim, so that the historical basis for the diagnosis was in evidence through a witness who had personal knowledge.
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