Section 21.5 Other Problems in Presentation

• Library: Family Law Deskbook and 2014 Supp

4. (§21.5) Other Problems in Presentation

If an offer of expert testimony is denied, counsel should be sure, in the offer of proof, to propound actual questions to the proposed expert and to have the proposed expert’s answers put on the record as well. One court has ruled that merely summarizing the proposed expert’s testimony is not sufficient to preserve a party’s objection to the court’s ruling that the party’s expert not be allowed to testify. In re Marriage of H.B., 559 S.W.2d 73 (Mo. App. W.D. 1977).

It is also important that an attorney recall that the Supreme Court of Missouri has held, “So long as any issue or sub-issue of custody is subject to contest between
the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required.” Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). In Hall v. Hall, 336 S.W.3d 188 (Mo. App. W.D. 2011), the husband offered expert testimony that the mother suffered from a serious mental illness, while the wife offered expert testimony that she suffered from a much more minor diagnosis. When the husband tried to dispute the court’s award of child custody to the mother on the appellate level, the court noted the trial court’s lack of finding of facts with regard to mother’s emotional state and remanded the case to the trial court for findings of fact. The court denied the husband’s request to simply review the trial court testimony and reverse the custody holding itself.

Counsel must make all reasonable efforts to understand what an expert will testify to before putting the expert on the stand. In Greiner v. Greiner, 146 S.W.3d 442 (Mo. App. W.D. 2004), the husband’s vocational expert testified that the...