Davis v. Petito
14 A.3d 692
Md. Ct. Spec. App.2011Background
- Davis and Petito are divorced parents of Sophia; custody modification sought after allegations of abuse.
- Circuit Court found no proven sexual abuse by Petito but found a material change in circumstances due to Davis's unproven allegations and reconciled visitation to foster reunification.
- Therapy records and multiple interviews raised questions about reliability of abuse disclosures; trials spanned 2009–2010.
- Expert testimony was narrowed: Davis’s rebuttal expert Silberg was excluded; Killeen testified for Petito about interview methods and credibility.
- Therapists Smith and Leffew presented conflicting views on abuse; the court credited Killeen over them in determining lack of proven abuse.
- Court ordered Davis to pay $30,773.54 of Petito’s attorney fees under FL § 12-103; judgment affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Davis’s rebuttal expert | Davis should be allowed to present rebuttal expert Silberg. | Silberg’s prior contact with Petito under privilege warranted exclusion. | Preclusion upheld; ruling not an abuse of discretion. |
| Hearsay issue regarding Sophia’s statements to McGurgan | Statements fall under medical treatment/diagnosis hearsay exception. | Statements not contemporaneous with treatment; privilege issues. | Statements not admissible under Rule 5-803(b)(4) and privilege; exclusion affirmed. |
| Attorney fees award under FL § 12-103 | Fees should be limited given substantial justification and needs. | Petito had substantial justification and Davis bore greater need; award proper. | Fees award affirmed with proportional allocation. |
Key Cases Cited
- Prout v. State, 311 Md. 348 (Md. 1988) (motion in limine preservation; review despite lack of proffer)
- Simmons v. State, 313 Md. 33 (Md. 1988) (preclusion of expert witness preserved without proffer)
- Butler-Tulio v. Scroggins, 139 Md.App. 122 (Md. 2001) (two-part test for confidential relationships with experts)
- Pratt v. State, 284 Md. 516 (Md. 1979) (attorney-client privilege extends to agents including experts in criminal cases)
- Rubin v. State, 325 Md. 552 (Md. 1992) (privilege protects information obtained by private investigator during divorce)
- Morris v. State, 59 Md.App. 659 (Md. 1984) (distinguished from Pratt; scientific testing not privilege-based under certain facts)
- Coates v. State, 175 Md.App. 588 (Md. 2007) (hearsay exclusion under medical-treatment/d diagnosis exception; delay factors critical)
- Griner v. State, 168 Md.App. 714 (Md. 2006) (child understands medical treatment context; admissibility of statements to medical personnel)
- Rachel T., 77 Md.App. 20 (Md. 1988) (statements to medical personnel admissible when for medical treatment/diagnosis; age-related considerations)
- Webster v. State, 151 Md.App. 527 (Md. 2003) (emergency context supporting medical-treatment rationale for hearsay exception)