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McConkey v. Huisman

Court of Appeals of Iowa

July 24, 2019

CASSANDRA RENA McCONKEY ON BEHALF OF B.M., Plaintiff-Appellant,
v.
KEVIN CHARLES HUISMAN, Defendant-Appellee.

          Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.

         The mother of a child appeals the district court's denial of her petition for relief from sexual abuse filed on behalf of the child against the child's father. REVERSED AND REMANDED.

          Nicole S. Facio of Newbrough Law Firm, LLP, Ames, for appellant.

         Joseph R. Cahill of Cahill Law Offices, Nevada, for appellee.

          Considered by Vaitheswaran, P.J., Vogel, S.J., * and Gamble, S.J. [*]

          VAITHESWARAN, PRESIDING JUDGE.

         A mother of a child appeals the district court's denial of her petition for relief from sexual abuse, filed on behalf of the child against the child's father. She contends (1) she met her burden of proving that the father sexually abused the child and (2) the district court should have excluded the father's expert witness. We find the second issue dispositive.

         I. Background Facts and Proceedings

         Cassandra McConkey gave birth to a child in 2013. When the child was five years old, McConkey filed a petition for relief from sexual abuse under recently-enacted Iowa Code chapter 236A (2018). She alleged the child made "concerning statements" about the child's father, Kevin Huisman, for "going on three years." She requested an emergency protective order, which the district court granted. The court scheduled a hearing.

         Five days before the scheduled hearing, Huisman's attorney moved "to continue trial and for order providing for discovery and subpoenas." He asserted, "Discovery as contemplated by the parties cannot be completed given the current date of the hearing"; he expected "numerous witnesses requiring at least a day or more of testimony and evidence"; and it would be appropriate to schedule a trial-setting conference with the court administrator. A conference was scheduled, and the matter was set for trial close to five months later.

         The day before trial, McConkey received Huisman's witness and exhibit list naming "Kamala London" as a witness and identifying her curriculum vitae as an exhibit. The nature of her testimony was not disclosed.

         The same day, McConkey's attorney moved to exclude London's testimony. She alleged, "The attorney for [Huisman] sent an e-mail [four days earlier] indicating his client had retained an out of state witness and asking if [counsel for McConkey] would agree to have the witness testify by telephone." Counsel asked Huisman's attorney "if this witness was an expert witness." On receiving the witness and exhibit list, McConkey's attorney again asked if the witness was an expert. She did not receive a response. McConkey's attorney stated she lacked time to respond or conduct discovery and "[a]llowing expert testimony upon such short notice to the Petitioner" violated her "right to due process" and was "prejudicial."

         Huisman's attorney filed a resistance. He noted that neither side complied with the initial disclosure requirements set forth in the rules of civil procedure and "[b]oth parties proceeded in this matter with the understanding that initial disclosures were not required in a [chapter] 236A proceeding."

         At trial, McConkey's attorney again raised her motion to exclude London. She asserted, "[T]oday was the first day [Huisman's attorney] disclosed he was going to call an expert witness" and she was not "provided any kind of documentation about what this witness [was] going to testify about, what [she had] relied on in terms of her report or testimony today or any of the information that's described in th[e] [rule on experts]." Counsel also voiced her belief that "there is a higher level of expectation in disclosure that's required when we have expert testimony, and to kind of ambush a party with expert testimony . . . violate[d] [her] client's due process." Counsel asked to "either exclude this witness or continue this matter" to allow for "time to prepare and have methods available for discovery." Huisman's attorney ...


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