Facts
- Keith A. Marchal (Father) and Paula (Marchal) Craig (Mother) divorced in 1991 and had one son (born 1988).
- The dissolution decree provided for joint legal custody, but gave Father the right to make all major decisions for the child (including education and religion).
- The parties also agreed to share physical custody on an approximately 50–50 basis.
- Ongoing conflict about child-related matters continued after the divorce.
- Father petitioned the trial court to order mediation, and the parties (with counsel) agreed to use Dr. John Ehrmann, a clinical psychologist, to mediate “all child related issues.”
- Under a January 12, 1993 agreed entry filed with the court, the parties agreed that if they could not reach agreement in mediation, Dr. Ehrmann could resolve the dispute based on the child’s best interests, and his resolution would be determinative.
- The mediation effort was unsuccessful, and the dispute proceeded to litigation.
- Before trial, the parties (through counsel) indicated Dr. Ehrmann could be called as a witness, and Father’s side identified materials connected to the sessions as potential evidence.
- Father’s attorney later withdrew, and Father went to trial pro se.
- At trial, Father objected to Dr. Ehrmann’s testimony on the ground that Ehrmann had acted as the parties’ mediator and that mediation communications were confidential and not admissible.
- The trial court overruled the objection, permitted Dr. Ehrmann to testify, relied heavily on his testimony in its findings, awarded Mother sole legal custody, and entered a related child-support order.
- Father appealed.
Issues
- Whether the trial court erred by allowing Dr. Ehrmann—who served as the parties’ mediator under a court-filed agreed entry—to testify, given Indiana ADR Rule 2.8’s restrictions on mediator testimony and confidentiality.
- Whether the trial court’s child-support calculation complied with the Indiana Child Support Guidelines (to the extent the issue was likely to recur on retrial).
Decision
- The Court of Appeals held the trial court erred in admitting Dr. Ehrmann’s mediation-based testimony under the then-effective Indiana ADR Rule 2.8.
- The error was reversible, not harmless, because the trial court’s custody findings and judgment relied extensively on Ehrmann’s evidence.
- The court reversed and remanded for retrial of the custody modification proceedings without use of the mediator’s testimony or other mediation-derived evidence barred by the rule.
- The court addressed a child-support calculation point to guide the trial court on remand, noting the support computation would need to be corrected under the Guidelines in light of admissible evidence and the custody/parenting-time determinations made on retrial.
Legal Principles
- A mediator appointed and acting as a mediator in a case may not later serve as a witness in that same matter when the testimony concerns mediation communications or results, under Indiana ADR Rule 2.8 (as applied in this case).
- Mediation confidentiality under ADR Rule 2.8 was treated as not subject to waiver by the parties, so a prior stipulation or agreement that the mediator could testify did not authorize the trial court to receive the mediator’s mediation-based testimony.
- In a bench trial, evidentiary error warrants reversal when the judgment appears to have been infected by the improper evidence; reliance “extensively” on a mediator’s inadmissible testimony in deciding custody meets that standard.
- Child-support orders are reviewed for abuse of discretion, and support must be calculated using the Indiana Child Support Guidelines based on findings supported by admissible evidence and the parenting-time arrangement established on remand.
Conclusion
The Court of Appeals reversed the custody modification because the trial court permitted and relied heavily on testimony from Dr. Ehrmann, who had served as the parties’ mediator, in violation of Indiana ADR Rule 2.8’s mediator-as-witness and confidentiality restrictions; the case was remanded for a new trial on custody and for reconsideration of child support consistent with the Guidelines and the evidence properly admitted on retrial.