Husband Who Failed to Call Wife’s Psychologist Can’t Invoke “Missing Witness Rule” Due to Wife’s Failure To Call
Tennessee case summary on divorce and “missing witness rule.”
Deborah Elaine Murdock v. Joel Montgomery Murdock
Shelby County Courthouse
The husband and wife in this Shelby County, Tennessee, case were married in 1994 and had two children, who were both adults at the time of their divorce. The husband had degrees in engineering, and both spouses worked for Boeing for a few years in Missouri, until the moved to Tennessee, where the husband took a job at FedEx. The husband’s salary was $182,000, and he typically received a bonus of $100,000 per year. He also received various stock awards and options.
The wife was an attorney, and she was offered a job at FedEx, contingent on her passing the Tennessee bar exam. She ultimately passed the exam, but not within the time allowed by FedEx. She held several positions before opening her own estate-planning firm, but that firm had not been profitable.
The wife filed for divorce in 2013, the husband filed a counter-complaint in 2016, and protracted litigation followed.
One of the major issues at trial revolved around the testimony of the wife’s expert witness regarding the negative family dynamic under which the wife became estranged from the children. She asserted that this alienation was the result of the husband’s influence. Her expert testified that she suffered from adult ADHD, depression, and posttraumatic stress disorder. The expert opined that these were the result of an abusive marriage. The wife took the position that the wife would be able to return to the legal profession in three years, and that he should not be required to pay alimony for longer than that.
In 2018, the trial court entered its findings and order. Among other things, the wife was awarded alimony in futuro of $5500 per month. The husband appealed to the Tennessee Court of Appeals.
The husband argued that the evidence presented was improper, since the wife’s expert witness was not her treating psychologist, but instead had merely reviewed her records. Specifically, he cited a case which held that an expert witness cannot serve merely as a “mouthpiece” to state the diagnosis of another professional.
The appeals court held that this objection was not appropriate. The expert witness had offered his own opinion, which relied in part upon, but did not merely parrot, the earlier diagnosis. Thus, the expert testimony was properly admitted. For these reasons, the testimony was proper.
But the husband claimed that the “missing witness rule” should have been applied with respect to the wife’s most recent counselor. The husband argued that the wife’s failure to call this witness should have resulted in a negative inference, and the trial court should have concluded that the evidence would have been unfavorable to the wife.
But the appeals court pointed out that the issue was the wife’s vocational ability, and the husband had not established that the missing witness would have been able to testify as to that issue.
The appeals court also pointed out that the husband could have compelled the testimony of the missing witness. Since he failed to call the witness himself, he could not raise this issue on appeal.
The appeals court also reviewed the property distribution and alimony awards. After its review, it affirmed the trial court’s order and remanded the case for any necessary further proceedings.
Quote from the opinion:
Husband contends that the trial court should have applied the missing witness rule to Dr. Jane Clement, Wife’s most recent counselor. The Tennessee Supreme Court recently explained:
Tennessee’s law of evidence recognizes the common law rule that a party “may comment upon the failure . . . to call an available and material witness whose testimony would ordinarily be expected to favor” the opposing party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party “that would naturally incline the witness to favor the party,” and the witness was available to the process of the court. Id. (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)) . . . .
The logic of this common law principle stems from the commonsense inference that “[a] party’s intentional efforts to keep evidence from the factfinder” is reasonably “interpreted as an implied admission of weakness in that party’s case.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 140 (1985). This “inference, which Wigmore calls ‘one of the simplest in human experience,’” id. (quoting 2 John Wigmore, Evidence in Trials at Common Law § 278, at 133 (J. Chadbourne rev. ed. 1979)), is well-grounded in Tennessee law. Yet we have applied it with due caution for the “several dangers inherent” in its operation, such as adding false weight or significance to testimony that a court has not heard. See Francis, 669 S.W.2d at 89. Thus, we strictly construe the missing witness rule and its elements. Id.
No. W2019-00979-COA-R3-CV (Tenn. Ct. App. Mar 2, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
