Session May 6, 2014.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed. Appeal by Permission from the Court of Appeals, Eastern Section. Circuit Court for Hamilton County. No. 11-D-2052. Jacqueline S. Bolton, Judge.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellant, Terri Ann Kelly.
Richard A. Schulman and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellee, Willard Reed Kelly.
WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.
WILLIAM C. KOCH, JR.,
This appeal involves the standard that appellate courts should use to review a trial court's decision regarding the credibility of a witness who testifies by telephone. A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties' daughter was living with her mother, and the parties' son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother's first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court's decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court's custody ruling. Kelly v. Kelly, No. E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court's custody decision.
Willard Reed Kelly and Terri Ann Kelly were married in 1992 in Hamilton County,
Tennessee. Their son, W.K., was born in 1997, and their daughter was born in 1999. Mr. Kelly works in the financial industry. Following the birth of the children, the family lived in Knoxville, Nashville, Charlotte, North Carolina, and Richmond, Virginia. Each move was precipitated by a promotion in Mr. Kelly's employment.
When Mr. Kelly accepted the job in Richmond in September 2009, he left his wife and children in Charlotte so they could finish the school year and prepare to sell their house. During this period, the Kellys' marriage deteriorated. Ms. Kelly discovered that Mr. Kelly was having an inappropriate relationship with a female co-worker. Mr. Kelly admitted to the inappropriate relationship, and Ms. Kelly moved the family to Richmond. But the Kellys were unable to salvage their marriage. In April 2011, Ms. Kelly asked Mr. Kelly to move out. He complied, and she filed for divorce in Virginia.
Ms. Kelly then decided to move with the children back to her hometown of Chattanooga to be closer to her parents and other relatives. Mr. Kelly was aware of Ms. Kelly's plans. In July 2011, Ms. Kelly's father traveled to Richmond to help her pack for the move to Chattanooga. During this time, Mr. Kelly took the children on their customary, week-long vacation to a beach house.
When Mr. Kelly and the children returned from vacation, he dropped off W.K. at a friend's house to spend the night and then proceeded home. When he arrived, Mr. Kelly became upset when he learned that Ms. Kelly was planning to move to Chattanooga with the children the next day. Mr. Kelly retrieved W.K. from his friend's house and refused to permit Ms. Kelly to see him. Accordingly, Ms. Kelly and the couple's daughter moved to Chattanooga, and W.K. remained with Mr. Kelly in Richmond.
A short time later, Mr. Kelly lost his job in Richmond. He moved with W.K. to Brentwood, Tennessee and W.K. was enrolled in Brentwood High School. On October 25, 2011, Ms. Kelly filed a petition for divorce in the Circuit Court for Hamilton County because neither she nor Mr. Kelly were residing in Virginia. In this litigation, Mr. Kelly has not taken issue with the couple's daughter residing with Ms. Kelly. However, both he and Ms. Kelly sought to be designated as W.K.'s primary residential parent.
Prior to the divorce, Ms. Kelly did not work outside the home and served as the primary caretaker of both children. Mr. Kelly's income supported the family's lavish lifestyle. However, Mr. Kelly's income decreased drastically after he lost his job in Richmond. By the time of the trial, he was significantly in debt.
The case was tried on July 12 and 13, 2012. At that time, W.K. was fifteen years old, and his sister was thirteen. In its July 27, 2012 order, the trial court divided the marital property, assigned alimony, and designated Ms. Kelly as primary residential parent for both children. In a September 26, 2012 order, the trial court adopted Ms. Kelly's proposed parenting plan.
Mr. Kelly appealed. A divided panel of the Court of Appeals reversed the trial court's decision to designate Ms. Kelly as W.K.'s primary residential parent and modified the trial court's allocation of property and the award of alimony. Kelly v. Kelly, No. E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). Ms. Kelly filed an application for permission to appeal, asking that she be reinstated as W.K.'s primary residential parent. In the remainder of this section, we will (1) describe the relevant testimony at the trial court hearings, (2) reproduce
the relevant portion of the trial court's order, and (3) describe the reasoning behind the intermediate appellate court's decision to reverse.
Ms. Kelly's first witness at trial was W.K.'s guidance counselor at Brentwood High School. She testified by telephone without objection, and her testimony was transcribed by a court reporter during the hearing. Her testimony lasted only several minutes, but we will focus on this testimony because it has become a point of contention between the parties.
The guidance counselor stated that W.K. had attracted her attention even though there were approximately 380 ninth-grade students at Brentwood High School. She testified that W.K. has started gravitating toward a group of students with a reputation for bullying and academic disengagement. She also testified that W.K.'s teachers were concerned that he was failing to do homework, to study for tests, and to make other academic efforts. During his cross-examination of the guidance counselor, Mr. Kelly's ...