NATHANIEL REICHENBERG, APPELLANT,
v.
MELANIE CHRISTINE DAVIS, ETC., APPELLEE
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In this paternity case, Father appealed the trial court's denial of his petition to modify custody and become the primary residential parent of the parties' seven-year-old son. The Fifth District Court of Appeal affirmed the trial court's exclusion of Child Protection Team and DCF investigative reports that Father sought to introduce as evidence of alleged sexual abuse by Mother's stepdaughter, finding the reports inadmissible as hearsay without proper authentication or applicable exceptions.
The trial court correctly excluded both reports because Father failed to establish the predicate for their admission through proper authentication, and even if authenticated, the reports were inadmissible as hearsay. The witness statements contained within the business records did not fall within the business records exception because they were based on what witnesses told the authors rather than the personal knowledge of business agents, and the hearsay statements themselves did not fall within any applicable exception to the hearsay rule. Father's request for a continuance was properly denied because the documents would not have been admissible regardless.
[1] Business records are not admissible under the business records exception to the hearsay rule when the statements within the records are not based upon the personal knowle…
[2] Hearsay statements contained within business records are admissible only if the statements themselves fall within an exception to the hearsay rule.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“These witness's statements, even though contained within the business records, do not fall within the exception, because they were not based upon the personal knowledge of an agent of the 'business.'”
Establishes that statements within business records must be based on personal knowledge of business agents, not merely related by them, to qualify for the business records exception to hearsay.
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Join FLexlaw to unlock all legal intelligenceFather and Mother are parties to a paternity case concerning their seven-year-old son. Father petitioned to modify the final judgment to make himself …
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TORPY, J.
In this paternity case, Appellant (“Father”) petitioned the court to modify the final judgment to make him the primary residential parent of the parties’ seven-year-old son. After hearing the evidence, the lower court denied the petition. Father raises several issues on appeal only one of which merits discussion.
During the trial, Father attempted to introduce reports of investigations that had been conducted by the Child Protection .Team and the Department of Children and Families (“DCF”). The reports contained the results of witness interviews wherein allegations were made that the parties’ seven-year-old son had been the victim of certain “sexual touching,” perpetrated by Appellee’s (“Mother’s”) eight-year-old stepdaughter. These allegations formed the primary basis for Father’s request that custody be changed. Father sought to introduce the two reports under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes (2002). In the case of both documents, however, he failed to establish the predicate for their admission. As to the May 25, 2001, report of the Child Protection Team, the witness called by Father acknowledged that one or more pages of the multi-page-document were missing. As to the report of the DCF, the witness subpoenaed by Father could not identify the report.
Furthermore, even if these authentication problems had been overcome, the reports were clearly not admissible over Mother’s timely hearsay objections. The problem here is that, in both reports, the authors simply related the substance of what the witnesses had told the authors. These witness’s statements, even though contained within the business records, do not fall within the exception, because they were not based upon the personal knowledge of an agent of the “business.” Harris v. Game and Fresh Water Fish Com’n, 495 So. 2d 806, 808 (Fla. 1st DCA 1986); Van Zant v. State, 372 So. 2d 502 (Fla. 1st DCA 1979). To be admissible under these circumstances, the hearsay statements made to the authors must themselves fall within an exception to the hearsay rule. § 90.805, Fla. Stat. (2002); Harris, 495 So. 2d at 809. Here, no exceptions apply.1 For these same reasons, the documents would not have been admissible under the public records exception to the hearsay rule, section 90.803(8), Florida Statutes (2002). Lee v. Department of Health & Rehabilitative Services, 698 So. 2d 1194 (Fla.1997). Therefore, we find that the trial court correctly excluded the documents.
Because the record of the DCF would not have been admissible even had the witness been able to identify it, Father’s request for a continuance to secure the presence of the proper witness was appropriately denied.
The court has carefully reviewed the record as it relates to Appellant’s other points on appeal and determined that they are without merit. Based upon the foregoing, the judgment of the trial court is affirmed.
Appellee’s request for attorney’s fees on appeal is denied because the request was made in her brief, rather than by separate motion. McCreary v. Florida Resid. Prop. & Cas. Joint Underwriting Ass’n., 758 So. 2d 692 (Fla. 4th DCA 1999).
AFFIRMED.
THOMPSON, C.J., and PLEUS, J., concur. . The victim's statement was not admissible under section 90.803(23), Florida Statutes, because no showing was made that the victim was "unavailable." § 90.803(23)(a)2b, Fla. Stat. (2002). The perpetrator’s alleged statement was not admissible under section 90.804(2)(c), Florida Statutes, for the same reason. § 90.804(1), Fla. Stat. (2002).
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Brooks v. State, 918 So. 2d 181 (Fla. 2005)…ro’s personal knowledge, but was supplied by Rachel Carlson, who, obviously, was not acting within the course of a regularly conducted business activity. ' The scenario is similar to that recently faced by the Fifth District in Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003), in which the district court determined that the information contained within the records of the Department of Children and Families pertaining to the alleged sexual abuse of a seven-year-old boy was not admissible under the busi…
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Carter v. State, 951 So. 2d 939 (Fla. 4th DCA 2007)…40 (Fla. 2002) (noting that police reports or criminal arrest affidavits are not admissible into evidence in criminal proceedings as a public record exception to the hearsay rule because that exception expressly excludes them); Reichenberg v. Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003) (holding that reports of DCF investigators which contained witness interviews were not admissible under the business or public records exception to the hearsay rule because the statements in the reports were not based upon…
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M.S. v. Dep't of Child. & Families, 6 So. 3d 102 (Fla. 4th DCA 2009)…e employee’s testimony regarding the content of the note of the phone call, because the information contained in the note came from the individual making the call and thus was not within the employee’s knowledge. Similarly, in Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003), the court held that records of DCF could not be admitted into evidence as a business record because the records contained witness statements made to investigators, the substance of which was not within the personal knowledge of…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fran McCREARY and Cain McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692 (Fla. 4th DCA 1998)
- van Zant v. State, 372 So. 2d 502 (Fla. 1st DCA 1979)
- Levada LEE v. Dep't of Health & Rehabilitative Servs., 698 So. 2d 1194 (Fla. 1997)
- Tex T. Ferguson v. Dade Cnty. Sch. Bd. & CNA Ins. Cos., 495 So. 2d 806 (Fla. 1st DCA 1986)
- Harris v. Game & Fresh Water Fish Comm'n, 495 So. 2d 806 (Fla. 1st DCA 1986)