Tennessee Mom Gets Custody Based on Telephone Testimony of Counselor

Tennessee law case summary on custody law and evidence in divorce and family law from the Supreme Court of Tennessee.

Terri Ann Kelly v. Willard Reed Kelly – Tennessee divorce evidence — telephone testimony

Willard Kelly and Terri Ann Kelly were married in 1992 in Hamilton County, Tennessee, and they had two children, a son born in 1997 and a daughter born in 1999.  During the marriage, they lived in Knoxville, Nashville, Charlotte, NC, and Richmond, VA.

During the move to Richmond, the father went ahead while the rest of the family stayed in Charlotte to finish the school year and prepare the house for sale.  During this time, the marriage deteriorated, as the father admitted to an inappropriate relationship.  In 2011, the mother finally asked the father to move out, and she filed for divorce in Virginia.  The mother planned to move back to Chattanooga to be closer to her family.  Ultimately, the mother and daughter moved to Tennessee and the father and son remained in Richmond.  They later moved to Brentwood, Tennessee.  The mother filed a new divorce petition in Tennessee, since nobody was living in Virginia.

The case came to trial in 2012, when the children were 15 and 13.  The mother was named as the primary residential parent for both children.  Both parties appealed to the Tennessee Court of Appeals, and in 2013, the appeals court remanded the case.  One of the grounds for doing so was that the son’s guidance counselor had testified by telephone.  The appeals court reasoned that the trial court was not able to “view” the testimony of this witness, and thus gave it too much weight.  The mother then asked the Tennessee Supreme Court to review this ruling.

The Supreme Court first noted that the lower court’s finding should be reviewed de novo, but with a presumption of correctness.  It noted that trial judges are generally in a better position to weigh the credibility of witnesses.  In this appeal, the Supreme Court had to decide how this standard should be applied to witnesses who testify by telephone.  The high court noted that the same standard does not apply to documents, such as testimony that is read in from a deposition.  Therefore, it had to decide whether telephone testimony should be treated like live testimony, or like deposition testimony.

In this case, the father had not objected to the use of telephone testimony.  However, it was still necessary to determine the weight that should be accorded to it.

After analyzing the issue, the Supreme Court concluded that telephone testimony was more like live testimony.  It quoted the dissenting opinion of Judge Susano in the Court of Appeals, who noted that the judge can determine a great deal from things such as tone of voice, whether the witness was calm or argumentative, and whether she sounded like she was unbiased.

The high court agreed with the father that telephone testimony is not a good way to judge a witness’s credibility.  However, it also agreed with the mother that the trial court was in the best position to do so.

The trial court then looked over the evidence and concluded that the trial court had acted within its discretion.  Since the Court of Appeals’ decision had been based largely on the rejection of the telephone testimony, the Supreme Court ruled that the trial court’s order should be reinstated, and the mother be named the primary residential parent.

No. E2012-02219-SC-R11-CV (Tenn. Sept. 10, 2014).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Tennessee Child Custody Law.  See also Miles Mason’s book available on Amazon.com Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases.