No




                                                               No. 97-564




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                            1998 MT 154N




                                                  IN RE THE MARRIAGE OF

                                                          SAMUEL YATES,

                                                    Petitioner and Respondent,

                                                                     and

                                                           RENEE YATES,

                                                    Respondent and Appellant.




                       APPEAL FROM: District Court of the Twenty-First Judicial District,

                                                In and for the County of Ravalli,

                                     The Honorable Jeffrey Langton, Judge presiding.




                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                             Christopher Daly, Missoula, Montana


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                                                             For Respondent:

                                          Samuel Yates, Missoula, Montana (pro se)




                                                Submitted on Briefs: April 2, 1998

                                                        Decided: June 18, 1998

                                                                    Filed:




                                    __________________________________________

                                                                    Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2 Renee Yates appeals from the Findings of Fact, Conclusions of Law and Final
Decree of Dissolution entered by the Twenty-First Judicial District Court, Ravalli
County, and from its supplemental findings and ratification of its earlier judgment
entered on remand. We affirm.

¶3 We address the following issues on appeal:

¶4 1. Did the District Court abuse its discretion in excluding statements by the child
offered through her mother and maternal grandmother?


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¶5 2. Did the District Court abuse its discretion in awarding custody of the child by
relying on the evaluation report submitted by Dr. Cindy Miller?

¶6 Renee Yates (Renee) and Samuel Yates (Samuel) married in 1992. They had one
child, Katherine Sage Yates (Sage), who was born in February of 1993. Samuel
petitioned for dissolution in April of 1995, and the District Court heard the matter on
November 4 and December 5, 1996. Thereafter, the District Court entered its
findings, conclusions and decree of dissolution determining, in part, that Renee and
Samuel should have joint legal custody of Sage and that Samuel should be designated
as the primary residential custodian. The court rejected Renee's allegations that
Samuel sexually abused Sage, finding that both law enforcement and the Department
of Family Services (now the Department of Public Health and Human Services) had
investigated the allegations and determined that they were unsubstantiated. The
court relied heavily in the custody portions of its decision on an evaluation report by
Dr. Cindy Miller (Dr. Miller), a clinical psychologist, which was performed at the
court's direction and submitted after the hearing.

¶7 Renee appealed and the parties stipulated to a remand for the limited purposes of
a hearing at which Dr. Miller could be examined, followed by an amended decision
by the District Court incorporating any additional information presented at the
hearing on remand. This Court ordered the remand on November 4, 1997, and the
District Court held the hearing on remand on December 5, 1997. At the close of the
hearing, the court orally announced its supplemental findings which, in essence,
ratified its reliance on Dr. Miller's report by finding that no additional evidence had
been presented of such significance as to alter its earlier decision. Pursuant to our
order, Renee advised this Court that she would continue with her appeal.

¶8 1. Did the District Court abuse its discretion in excluding statements by Sage
offered through her mother and maternal grandmother?

¶9 On three occasions during the hearing, Sage's maternal grandmother and Renee
testified to statements made by Sage. All of the statements purportedly related to
Renee's accusations that Samuel had sexually abused Sage. On the first occasion,
Samuel's counsel objected that the testimony was hearsay, Renee's counsel did not
offer a basis under which the statements would be admissible, and the District Court
sustained the objection. On the second occasion, Samuel's counsel again objected on
the basis of hearsay, Renee's counsel offered the statements first as "state of mind"


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evidence and, when the District Court opined that the statements would not fit under
the present sense impressions exception, offered the statements as an excited
utterance; the District Court sustained the objection. On the third occasion, Samuel's
counsel made a continuing objection on hearsay grounds, which the District Court
again sustained, as to Sage's statements to Renee. Renee asserts error with regard to
all of the rulings excluding Sage's statements. We review a trial court's evidentiary
rulings to determine whether the court abused its discretion. State v. Passama (1993),
261 Mont. 338, 341, 863 P.2d 378, 380 (citation omitted).

¶10 Renee faults the District Court for not determining whether Sage was or was not
available as a witness for purposes of determining under which hearsay exception
her statements might be admissible. She then advances a laundry list of exceptions to
the hearsay rule under which Sage's statements may have been admissible: the
present sense exception contained in Rule 803(1), M.R.Evid; the excited utterance
exception in Rule 803(2); the then-existing mental, emotional or physical condition
exception in Rule 803(3); the "[o]ther exceptions" set forth in Rule 803(24); and the
"[o]ther exceptions" set forth in Rule 804(b)(5), which are applicable when the
declarant is unavailable. In addition, she contends that certain of the statements at
issue were not hearsay at all and, therefore, no hearsay exception was necessary to
render the statements admissible.

¶11 The flaw in most of Renee's arguments in this regard is clear. She did not argue
in the District Court that the statements were not hearsay. Nor did she argue that
Sage was unavailable as a witness for purposes of applying the Rule 804(b)(5), M.R.
Evid., "other exceptions." Renee also did not contend that the statements were
admissible pursuant to Rule 803(24), M.R.Evid. Indeed, as noted above, Renee
offered the District Court no basis at all on which the first statements testified to by
Sage's maternal grandmother would be admissible.

¶12 It is beyond cavil that a party may not raise issues for the first time on appeal.
See, e.g., Matter of R.B.O. (1996), 277 Mont. 272, 283, 921 P.2d 268, 274 (citation
omitted). Therefore, we decline to address the arguments listed in the preceding
paragraph and any argument now advanced by Renee in support of the first
statements excluded by the District Court, since none of these arguments was
advanced in the District Court. We turn then to the second and third sets of
statements excluded by the District Court and address whether the statements
qualified for the exceptions to the hearsay rule set forth in subsections (1), (2), and

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(3) of Rule 803, M.R.Evid., all of which were at least partially advanced by Renee in
support of the admissibility of the statements.

¶13 Rule 803(1), M.R.Evid., provides that a statement describing or explaining an
event which is made while the declarant was perceiving the event, or immediately
thereafter, is not excluded by the hearsay rule even though the declarant is available
as a witness. The record with regard to both the second and third set of statements
excluded by the District Court is clear that Sage did not make any of the statements
at issue while she was perceiving any event to which the statements related.
Furthermore, no testimony by either Sage's grandmother or Renee establishes that
any of the statements were made immediately after the time of the alleged events to
which the statements related. We conclude, therefore, that the statements were not
admissible under Rule 803(1), M.R.Evid., as present sense impressions.

¶14 Rule 803(2), M.R.Evid., is the "excited utterance" exception to the hearsay rule,
under which statements "relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition" are
not excluded by the hearsay rule. Here, the record does not establish that Sage made
any of the statements attributed to her while under any "stress of excitement" caused
by the events being described. Thus, we conclude that the statements were not
admissible under Rule 803(2), M.R.Evid.

¶15 Finally, Rule 803(3), M.R.Evid., provides that statements of the declarant's then-
existing state of mind, emotion, sensation, or physical condition are not excluded by
the hearsay rule. After close scrutiny of the record, we conclude that several of Sage's
statements--including, but not limited to, that she "hurt" in her rectal area--were
admissible under Rule 803(3), M.R.Evid., as statements of a then-existing state of
mind or physical condition.

¶16 That does not end our inquiry, however, because error may not be predicated on
an erroneous evidentiary ruling unless a substantial right of the party is affected. See
Rule 103(a), M.R.Evid. Here, as noted above, Renee sought to admit Sage's
statements to bolster her accusations that Samuel had sexually abused Sage and, as a
result, should not be designated the primary residential custodian. As also noted
above, the District Court expressly found that law enforcement and the Department
of Family Services (Department) had investigated Renee's accusations and declined
to take further action. The District Court also found that the Department had


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determined that, in fact, Renee was emotionally abusing Sage with her persistence in
repeated accusations of sexual abuse without substantiation. Moreover, the court
noted Dr. Miller's hypothesis that Renee was pressuring Sage to make false negative
statements about her father. Taking the District Court's extensive findings regarding
the alleged sexual abuse by Samuel as a whole, all of which controverted Renee's
position, it is clear that admitting several of Sage's statements pursuant to Rule 803
(3), M.R.Evid., would not have changed the District Court's ultimate decision and,
therefore, did not affect Renee's substantial rights.

¶17 We conclude, therefore, that the District Court abused its discretion in excluding
several of Sage's statements which were properly admissible under Rule 803(3), M.R.
Evid. We hold, however, that the error was harmless and not reversible.

¶18 2. Did the District Court abuse its discretion in awarding custody of Sage by
relying on the evaluation report submitted by Dr. Miller?

¶19 As set forth above, the District Court's findings of fact relating to custody and its
ultimate decision to designate Samuel as the primary residential custodian were
based in large part, but not entirely, on Dr. Miller's evaluation report. That report
initially was submitted without an opportunity for the parties to examine Dr. Miller
and, on remand, both parties questioned her. The District Court subsequently
ratified its earlier reliance on Dr. Miller's report and orally entered supplemental
findings. Renee contends that the District Court's decision to designate Samuel as
Sage's primary residential custodian, based on Dr. Miller's report, was erroneous.
We will overturn a district court's custody decision only when the court's findings
and conclusions clearly demonstrate an abuse of discretion. In re Marriage of Hunt
(1994), 264 Mont. 159, 164, 870 P.2d 720, 723 (citation omitted).

¶20 Renee first makes a passing reference to the requirement that a district court
consider the criteria set forth in § 40-4-212, MCA, in determining the best interests of
the child. She highlights the criteria relating to the mental and physical health of all
of the parties and abuse or threat of abuse by a parent and cites to Maxwell v.
Maxwell (1991), 248 Mont. 189, 192, 810 P.2d 311, 313, for the proposition that a
court cannot ignore circumstances which may endanger the child. While Renee's
references to the statutory criteria and Maxwell clearly are correct, they are of no
assistance to Renee here, since it is clear that the District Court considered and
addressed the criteria at length and did not ignore any circumstances which might


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endanger Sage.

¶21 Next, Renee argues that the District Court improperly rejected the evidence
presented by Marsha Kirchner (Kirchner), who had both evaluated and treated
Sage, and who was the only professional concluding that Renee's allegations about
sexual abuse were substantiated. The District Court's rejection of Kirchner's
evaluation of Sage was based on its determination that the evaluation was not
credible because Kirchner had both evaluated and treated Sage. Credibility
determinations and the weighing of conflicting evidence are within the province of
the finder of fact. See Tonack v. Montana Bank of Billings (1993), 258 Mont. 247, 251-
52, 854 P.2d 326, 329 (citation omitted). We do not substitute our judgment for that
of the factfinder on such matters.

¶22 Finally, Renee contends that, because Dr. Miller spent substantially less time
with Sage than Kirchner did and treated Renee and Samuel differently with regard
to their interactions with Sage, the District Court abused its discretion in relying on
her report. As set forth above, however, it is the duty of the factfinder--not this
Court--to weigh conflicting evidence. See Tonack, 258 Mont. at 251-52, 854 P.2d at
329. That others may have weighed the evidence differently does not constitute an
abuse of discretion.

¶23 We conclude that the District Court did not abuse its discretion in relying on Dr.
Miller's report in making its custody determination. As a result, we hold that the
District Court's findings and conclusions relating to custody do not clearly
demonstrate an abuse of discretion.

¶24 Affirmed.

/S/ KARLA M. GRAY

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER


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/S/ TERRY N. TRIEWEILER




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