South Carolina Lawyers Weekly
The defendant-Mother challenges the family court’s approval of a mediated child custody settlement agreement awarding primary custody to the plaintiff-Father. The family court erred in refusing to accept or even consider a proffer of a psychologist’s evaluation of the parties’ Child, even though Mother obtained the evaluation without Father’s consent, was dilatory in providing the report to him, and failed to provide other evidence he requested.
We reverse the family court’s order approving the mediated settlement agreement limited to the issue of Dr. Dawn Lanaville’s testimony and psychological report and remand to to allow Mother to proffer Dr. Lanaville’s testimony. Prior to the proffer, the parties may engage in discovery, as allowed by the family court. If the family court determines Dr. Lanaville’s testimony and psychological report are admissible, rebuttal evidence shall be allowed and the court shall consider the admitted evidence in its determination of whether the mediated settlement agreement is in Child’s best interest. The family court’s award of attorney’s fees to Father shall also be determined on remand. We affirm the family court’s rulings as to the law of the case.
We agree with the family court’s concerns regarding Mother’s retention of Dr. Lanaville to conduct a psychological evaluation of Child without input from Father, the guardian ad litem (GAL), or the family court. Moreover, Mother did not timely disclose Dr. Lanaville’s name, she failed to immediately provide Dr. Lanaville’s psychological report to Father and the GAL, and she withheld documents Father requested until the weekend before the approval hearing. This limited the family court’s ability to fully hear the matter before it and failed to provide Father and the GAL an adequate opportunity to respond. However, the family court failed to conduct an inquiry into the content of the evidence Mother sought to admit by refusing to allow Mother to proffer Dr. Lanaville’s testimony and not reviewing her proffer of the psychological report and supporting documents.
However, the GAL believed Dr. Lanaville’s testimony and report should have been admitted because it bore on his determination of whether the mediated settlement agreement was in Child’s best interest. Because the best interest of Child is the family court’s controlling consideration in determining whether to approve the mediated settlement agreement, the family court abused its discretion in excluding this evidence as a discovery sanction without first conducting an inquiry into the content of the evidence. Further, the family court did not identify—and there is no evidence in the record of—any discovery order Mother violated.
Accordingly, we reverse the family court’s finding Dr. Lanaville’s testimony and psychological report were inadmissible as a discovery sanction and remand this matter to the family court to allow Mother to proffer Dr. Lanaville’s testimony, subject to cross-examination.
Affirmed in part, reversed in part and remanded.
Halsema v. Earley (Lawyers Weekly No. 012-018-23, 12 pp.) (Per Curiam) Appealed from York County Family Court (Tony Jones, Thomas Henry White, David Guyton & James Fraley, JJ.) Arlaine Rockey and Gina Collins for appellant; Daniel Dominic D’Agostino and Jacqueline Davis for respondent. South Carolina Court of Appeals (unpublished)
