5D00-440 Berger v. Berger

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-440

Case Date: 07/02/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

FRANCIS L. BERGER, Appellant, v. Case No. 5D00-440 FLORENCE BERGER, Appellee. / Opinion filed July 6, 2001 Appeal from the Circuit Court for Brevard County, W. David Dugan, Judge. Henry J. Martocci, Rockledge, for Appellant. Maureen M. Matheson of Reinman, Matheson, Kostro & Vaughan, P.A., Melbourne, for Appellee. PER CURIAM. Francis L. Berger appeals an Amended Final Judgment of Dissolution of Marriage dated January 21, 2000 that primarily addressed issues of child custody and visitation. Mr. Berger claims that the trial judge erred by allowing testimony with respect to abuse because the issue was previously determined in a dependency action in which the same parties participated. We disagree. The dependency action was brought by a state agency and the issues before the court did not concern child visitation and custody. The former wife was not entitled to manage the litigation in the dependency action and could not require the state agency to present testimony of witnesses and/or any other evidence that she may have desired.

Therefore, she was not collaterally estopped from presenting similar evidence in support of her case involving the custody and visitation of the parties' children. We have also considered Mr. Berger's claim that the testimony of the wife's expert witness, a psychologist, should have been disregarded by the trial judge because the expert's investigation and interviews were limited and flawed. The record reflects other evidence to support the judgment, and if the evidence was admitted through error, it was harmless error. Finally, we wish to make it clear that our affirmance of the judgment is limited to this appeal and is not a determination of the outstanding issues in the appeal pending before this court in case number 5D00-1539. AFFIRMED.

HARRIS, PETERSON, and ORFINGER, R. B., JJ., concur.

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