Jami Allyson Ross Carter v. Guy Marshall Carter ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 5, 2000 Session
JAMI ALLYSON ROSS CARTER v. GUY MARSHALL CARTER
Direct Appeal from the Chancery Court for Washington County
No. 30942, Richard Johnson, Chancellor
FILED JANUARY 4, 2001
No. E2000-01283-COA-R3-CV
This appeal from the Washington County Chancery Court concerns whether the Trial Court erred
in refusing to allow the testimony of an expert witness in accordance with a local rule. The
Appellant, Jami Allyson Ross Carter, appeals the decision of the Chancery Court. We vacate the
decision of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated; Cause
Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.
and D. MICHAEL SWINEY, JJ., joined.
Robert D. Arnold, Johnson City, Tennessee, for the appellant, Jami Allyson Ross Carter.
Lois B. Shults-Davis, Erwin, Tennessee, for the appellee, Guy Marshall Carter.
OPINION
This appeal arises from a divorce action between Jami Allyson Ross Carter, the Appellant,
and Guy Marshall Carter, the Appellee. Ms. Carter appeals the decision of the Washington County
Chancery Court and presents for our review one issue, which we restate: whether the Trial Court
erred in excluding the expert testimony of Dr. Jon Ellis, in accordance with Local Rule 8.01(B).
We vacate the decision of the Trial Court and remand for further proceedings, if any,
consistent with this opinion.
The parties were divorced in Washington County on November 4, 1996. There are three
minor children of the marriage, Ross, Alex, and Cassandra Carter. At the time of the divorce, the
parties agreed to joint legal custody with Ms. Carter having primary residential custody. Mr. Carter
received “reasonable visitation privileges” with the children. Problems arose with respect to this
arrangement, and in June 1997, Mr. Carter was awarded standard visitation with his two sons and
a specific visitation schedule was established with regard to his daughter by court order entered July
23, 1997.
A Petition for Contempt was filed by Mr. Carter on October 14, 1997, alleging that Ms.
Carter was prohibiting his visitation with the minor children. At that time allegations were being
made by Ms. Carter concerning inappropriate behavior by the paternal grandfather toward Ross and
Alex. A hearing was held on November 17, 1997, in which Dr. Jon Ellis, a clinical psychologist,
testified as an expert witness about the effect of further interaction between Alex and his paternal
grandfather. The Trial Court entered an order on January 7, 1998, stating that the minor children
were not allowed in the presence of the paternal grandfather. The Trial Court further ordered that
Mr. Carter’s visitation with his children be supervised at all times by his mother, Kay Carter, and
that Mr. Carter and the paternal grandfather undergo psychological evaluations.
On April 30, 1998, Ms. Carter filed a Petition seeking absolute custody and control of the
minor children. Once again, the prior allegations of inappropriate conduct by the paternal
grandfather were at issue. Dr. Ellis testified as an expert witness. Following a lengthy hearing that
began October 8, 1998,1 the Trial Court entered an order on February 19, 1999 granting Ms. Carter
sole and exclusive custody of the minor children. The Court further ordered a limited visitation
schedule for Mr. Carter with his three children and prohibited contact between the paternal
grandfather and the minor children. The Court reserved judgment regarding all other issues
concerning the paternal grandfather for a later date.
A final hearing was conducted on November 12, 1999. During the hearing, Dr. Ellis was
called by Ms. Carter to testify. Mr. Carter objected to Dr. Ellis testifying as an expert witness,
arguing that opposing counsel had not complied with Washington County Local Rule 8.01(B). Mr.
Carter’s attorney argued that she had only been made aware that Dr. Ellis would be called to testify
as an expert on the afternoon of November 11, 1999, as opposing counsel faxed a witness and
exhibit list to her office on the afternoon prior to the trial. The list included Dr. Ellis’s name but
made no mention of what he would be testifying to or what his opinions were and clearly did not
comply fully with the local rule.
In response to counsel’s objection, Ms. Carter’s attorney argued that Dr. Ellis had testified
on this matter previously and that there was no element of surprise that Dr. Ellis was called to testify.
Ms. Carter’s attorney further argued that the testimony of Dr. Ellis was of such importance that the
court should hear it before reaching a decision. Ms. Carter’s attorney then made an oral motion for
a continuance. The Trial Court ignored counsel’s motion for a continuance, disqualified the witness
and therefore did not hear testimony from Dr. Ellis. Following the hearing, the Court ordered that
1
The first day of testimony in this hearing was October 8, 1998. At the end of the day, the case was continued
to November 10, 199 8, and at the close of testimony on that day , the c ase was con tinued again to January 7, 1999. The
hearing did not conclude on January 7, 1999, therefore the Judge called for a conference with the attorneys on January
13, 1999. At the conferen ce, the parties a greed that the Trial Co urt had hear d enough testimony to rule on the case. The
record contains only a transcript from the October 8, 1998 hearing and the order entered February 19, 1999 with respect
to this particular hearing.
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the minor children could visit with their paternal grandfather during Mr. Carter’s visitation, but such
visitation must be in the presence of Mr. Carter or his mother, Kay Carter. The Court further
ordered that the paternal grandfather could not be alone with the minor children at any time or place
for any reason.
The local rule states:
Local Rule 8.01(B) – Expert Witnesses. Any party who plans to call
an expert witness to testify shall submit the witness’ name, address,
field of expertise, and brief summary of qualifications and opinions
to the court and other counsel no later than two (2) working days
before the deposition or other personal appearance of the witness.
Failure to comply with this requirement may result in disqualification
of the witness. No party shall call more than two (2) experts on any
issue without permission of the Court.
We review this matter de novo upon the record of the proceedings below, with a presumption
of correctness “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); see
also Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). There is no presumption of correctness
with regard to the trial court’s conclusion of law, and those conclusions are reviewed de novo. Jahn
v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).
Ms. Carter’s sole issue on appeal is that the Trial Court erred in excluding the expert
testimony of Dr. Ellis. This Court will not address that issue as we find that the Trial Court should
have granted a continuance to Ms. Carter upon oral motion by her attorney.
The Trial Court has broad discretion in granting or denying a continuance. Memphis Bd. of
Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989).
Because the testimony of Dr. Ellis dealt with very serious allegations of inappropriate
behavior of a sexual nature by the paternal grandfather toward the minor children, we find that
justice can only be served by allowing a full hearing on this matter. When this Court is in a position
to make decisions that have tremendous impact on the lives and well-being of minor children, we
consider it a most serious responsibility. We therefore hold that the Trial Court was in error in
ignoring counsel’s motion for a continuance. Absent the nature of the facts of this case, this Court
would give greater deference to the Trial Court’s discretionary role in granting or denying the motion
for a continuance. However, based on the specific facts in this case and the serious import of expert
testimony as to the psychological effects of continuing the relationship between the minor children
and the paternal grandfather, we find justice can only be served by a full hearing on this issue.
In light of the foregoing, we vacate the judgment of the Trial Court and remand the case for
further proceedings, more specifically, the taking of expert testimony by both parties on the issue of
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inappropriate behavior by the paternal grandfather with the minor children. We adjudge costs of
appeal against the Appellee, Guy Marshall Carter.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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