ERIC A. COBERLY, APPELLANT,
v.
KAREN COBERLY, APPELLEE
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In a family law appeal involving custody and visitation disputes, the court reversed the trial court's custody and visitation orders because the trial court failed to make necessary findings under Florida's hearsay exception statute (section 90.803(23)) before admitting the child's statements to a psychologist regarding alleged inappropriate conduct by the former wife.
The trial court's admission of the child's hearsay statements was improper because the trial court failed to make the necessary findings required by section 90.803(23) relating to the reliability of the statements. Accordingly, the custody and visitation orders based primarily on this testimony must be reversed and remanded.
[1] A trial court must make specific findings regarding the reliability of a child's out-of-court statements before admitting such statements under the hearsay exception for…
[2] Failure to make the necessary findings under section 90.803(23), Florida Statutes, regarding the reliability of a child's statements requires reversal of a trial court's…
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Join FLexlaw to unlock all legal intelligence“Because the trial court failed to make the necessary findings under section 90.803(23) relating to the reliability of the statements of the child, we reverse.”
Establishes the core holding that the hearsay admission was improper due to lack of statutory findings
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEric and Karen Coberly were former spouses with a minor child. The trial court awarded primary residential custody to the former husband and supervise…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
In this appeal and cross-appeal, both Eric A. Coberly (the former husband) and Karen Coberly (the former wife) challenge the lower court’s order which, among other things, grants primary residential custody to the former husband, supervised visitation to the former wife, and visitation to the maternal grandparents. The record is clear that the trial court established these visitation arrangements primarily to protect the parties’ minor child in view of the court’s finding that the former wife “more likely than not did act inappropriately in the presence of and with the minor child of the parties.” This finding was based primarily upon testimony of the child’s treating psychologist “that the minor child had expressed the fact that her mother [the former wife] ... had engaged in certain conduct which is highly inappropriate [including] ... inappropriate sexually related kissing, lifting up of dresses and looking a[sic] women’s underwear, tying the child up, and improper touching of the child’s genitalia.” The former wife has consistently and vigorously denied engaging in any such inappropriate actions and objected to the introduction of this hearsay testimony of the child on the grounds that the requirements of section 90.803(23), Florida Statutes (1995), had not been met. Because the trial court failed to make the necessary findings under section 90.803(23) relating to the reliability of the statements of the child, we reverse. See M.W. v. Department of Health and Rehabilitative Serv., 651 So. 2d 754 (Fla. 1st DCA 1995); Weatherford v. State, 561 So. 2d 629, 633 (Fla. 1st DCA 1990); Salter v. State, 500 So. 2d 184, 185 (Fla. 1st DCA 1986).
In view of our holding here, we find it unnecessary to address the other issues raised on appeal. On remand, the trial court, upon the appropriate motion, may again consider the findings and determinations required by section 90.803(23) and, in its discretion, may take additional testimony and hear additional argument concerning the visitation issues, including issues relating to grandparent visitation. See Beagle v. Beagle, 678 So. 2d 1271 (Fla.1996); Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990); Von Eiff v. Azicri, 699 So. 2d 772 (Fla. 3d DCA 1997); Fitts v. Poe, 699 So. 2d 348 (Fla. 5th DCA 1997).
REVERSED and REMANDED for proceedings consistent with this opinion.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur.
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Citator
Authorities Cited
- Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996)
- Salter v. State, 500 So. 2d 184 (Fla. 1st DCA 1986)
- Zonald Watson Weatherford v. State, 561 So. 2d 629 (Fla. 1st DCA 1990)
- Sketo v. Brown, 559 So. 2d 381 (Fla. 1st DCA 1990)
- Jere Fitts and Jane Fitts v. POE, 699 So. 2d 348 (Fla. 5th DCA 1997)
- von Eiff v. Leonor Azicri and Roberto Azicri, 699 So. 2d 772 (Fla. 3d DCA 1997)
- M.W. v. Dep't of Health & Rehabilitative Servs., 651 So. 2d 754 (Fla. 1st DCA 1995)