On a Petition for Modification of Custody, the Court of Appeals addressed the following issues:
1. Was it error for the trial court to allow the testimony of a last-minute rebuttal expert, who testified concerning the custody evaluation?
2. Where the trial court admittedly failed to make specific findings of fact pursuant to 25-403(A), is the failure to raise that omission at the trial court level (in the form of a motion for new trial) a waiver of that argument on appeal?
On the first issue, the Court of Appeals found, citing Hays v. Gama, that the trial court acted correctly in allowing the testimony of a rebuttal custody expert, even considering the late disclosure of that evaluator’s testimony. The custody evaluation itself was provided to the parties less than three weeks prior to hearing, and the new evaluator’s testimony was disclosed about eight days prior to the hearing. The aggrieved party was offered the opportunity to depose the new expert, and was offered a hearing continuance to deal with the new evidence. Under those circumstances, the late disclosure was not reversible error.
On the second issue, the trial court’s findings of fact were, admittedly, inadequate, but the aggrieved party did not raise that issue with the trial court in a motion for new trial, where the failure could have been easily corrected by the trial court without an appeal.
After extensive discussion, the Court of Appeals determined that the failure to raise this issue in a motion for new trial did NOT waive the issue, and it remanded the issue to the trial court to make those findings. “Although we agree that Father should have raised this issue before the lower court, and doing so would have provided that court with a simpler, more expedient opportunity to remedy its lack of findings and perhaps reconsider its decision, we also conclude that mechanically applying waiver principles in this setting . . . would inappropriately deprive the family court and all parties of the baseline information required for future petitions involving a child or children’s best interests.”