McClamroch v. McClamroch

• Decision Date: 10 April 1985
• Docket Number: No. 4-683A189,4-683A189
• Citation: 476 N.E.2d 514
• Parties: David S. McCLAMROCH, et al. Appellants (Plaintiffs Below), v. Emily Marie McCLAMROCH, et al. Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 514

476 N.E.2d 514

David S. McCLAMROCH, et al. Appellants (Plaintiffs Below), v. Emily Marie McCLAMROCH, et al. Appellees (Defendants Below).

No. 4-683A189.

Court of Appeals of Indiana Fourth District.

April 10, 1985.

Eric T. Dean, Jr., James R. Earnshaw, Crawfordsville, for appellants.

Joseph R. Buser, Wernle, Ristine & Ayers, Crawfordsville, for appellees.

CONOVER, Judge.

The surviving children and two grandchildren (children) of decedent Charles M. McClamroch, Jr. (Charles) appeal the trial court's refusal to set aside a joint deed Charles executed in favor of himself and his second wife, Emily McClamroch (Emily).

We affirm.

ISSUES

We have restated and reordered the children's various contentions as the following five issues:

1. Whether the trial court erred in refusing to allow a witness to testify whose name had not been included in the children's final pretrial witness list.

2. Whether the trial court erred in admitting into evidence a letter to Charles from one of his daughters.

3. Whether the trial court erred in admitting into evidence a tape recording of a conversation involving Charles and Emily.

4. Whether the trial court erred in refusing to empanel an advisory jury.

5. Whether the deed should have been rescinded because it was procured through Emily's exercise of undue influence over Charles.

FACTS

Before the mid-1970's Charles had been a successful farmer in the Crawfordsville area. Eight children were born of his first marriage. However, during the mid-1970's, Charles's wife, mother, brother, and one son died. Charles was despondent for a considerable time thereafter.

About 1977 or 1978 Charles turned almost all the farming operation over to his partner and joined the Peace Corps. Charles was stationed in Costa Rica, where he made several acquaintances. He made several trips between Costa Rica and the United States, often arriving or leaving on very short notice. During his visits in this country Charles frequently wore Costa Rican clothing and spoke to American acquaintances in Spanish. During one visit Charles brought a young girl from Costa Rica to live with him. However, the record indicates Charles did monitor the farming operation during this time, and generally managed his business affairs.

Although the record is not entirely clear, Charles's most bizarre episodes generally occurred after his final return from Costa Rica. He drank heavily, and associated with a poorly-reputed group of young people, some of whom may have stolen from him. Medical assistance was summoned on several occasions, and on at least one occasion Charles referred to himself as "Carlos" and refused to speak to the attendants in English. During this period, Charles frequently stated his displeasure with his children because they did not visit him. Further, he felt they were critical of his lifestyle.

In January, 1982, Charles met Emily, a 46-year-old divorcee. They were married February 14, 1982. During the first weeks of their marriage, they quarreled frequently and drank on occasion. Charles apparently suffered a minor stroke during this period. In March, he was admitted to a mental hospital for treatment of depression. Although his doctors wanted to discharge him shortly after his arrival, Charles wanted to stay for 10 days. He was given a prescription for lithium, and released.

A few weeks later, in the early morning hours of April 2, police officers were summoned to the McClamroch home. They found Emily and Charles had been drinking, were arguing, and Emily was holding a hatchet. However, the matter was settled peacefully. Emily never left the home. A doctor called during the incident refused to commit Charles for further psychotherapy.

Notwithstanding these several episodes, for the most part after he met Emily, Charles's behavior improved. He no longer insisted on speaking Spanish to persons who did not understand the language, and dressed more appropriately. Moreover, Charles continued to manage his business affairs.

Charles's property had been held in an inter vivos trust while he was traveling to Costa Rica. After his marriage, Charles informed the trustee-bank he desired to cancel the trust and transfer the property back to himself and Emily in a joint deed. Charles's attorney carefully instructed Charles if the joint deed were executed and Emily survived him the property would not pass to his children. Charles stated he understood that consequence, and insisted After the deed was executed Charles's daughter, appellant Anne Warren, sent Charles a letter questioning the wisdom of his marriage and of the deed. Charles reacted angrily to this letter. Charles and Emily then tape recorded a conversation involving themselves, and other persons, during which Charles insisted he had executed the deed of his own free will. This tape eventually was admitted into evidence at trial.

he wanted to make the deed. It was executed April 2.

Other relevant facts are discussed below.

DISCUSSION AND DECISION

I. Exclusion of Witness

During preliminary proceedings both parties exchanged witness lists. Subsequently, following the final pre-trial conference and orders, the parties filed final lists of witnesses and brief narratives of their anticipated testimony. The children neither submitted Officer Leonard's name with this list, nor a narrative of his anticipated testimony. Officer Leonard had answered the call at the McClamroch residence in the early morning hours of April 2.

The children presented testimony at trial concerning the April 2 incident. Emily testified this incident did not occur as described by the first officer witness. (R. 933) The children then attempted to call Officer Leonard. Because Officer Leonard had not been named on the final witness list the trial court sustained Emily's objection, refusing to allow him to testify. The children assert this refusal was an abuse of discretion.

Our courts generally have allowed trial judges wide discretion in regulating discovery and in enforcing pre-trial orders entered under Ind.Rules of Procedure, Trial Rule 16. This is particularly true where a pre-trial order has not been amended or supplemented under the rules, then has not been complied with at trial. See generally Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 76-77; North Miami Consolidated School District v. State ex rel. Manchester Community Schools (1973), 261 Ind. 17, 19-20, 300 N.E.2d 59, 61-62; Howard Dodge & Sons, Inc. v. Finn (1977), 181 Ind.App. 209, 212, 391 N.E.2d 638, 641; Colonial Mortgage Co. of Indiana, Inc. v. Windmiller (1978), 176 Ind.App. 535, 538, 540-43, 376 N.E.2d 529, 532-34. In this case the children were aware of Officer Leonard's testimony. They had submitted his name as a witness in prior conferences. They have shown no reason his name could not have been included in the final witness list with a summary of his expected testimony. The trial court did not abuse its discretion in refusing to allow Officer Leonard to testify.

Moreover, any error in this regard was harmless. The children presented other substantial evidence concerning the April 2 incident between Emily and Charles. (R. 605-07, 615-16.) Officer Leonard's testimony merely would have been cumulative. The exclusion of cumulative testimony is not error. State v. Edgman (1983), Ind.App., 447 N.E.2d 1091, 1104-05; see also Green v. Green (1983), Ind.App., 447 N.E.2d 605, 609.

II. Admission of Warren Letter

The trial court admitted, over the children's objection, the letter from Charles's daughter, appellant Anne Warren, dated April 25, 1982. (R. 150-51.) The children contend the letter was not relevant in this case because it could have had no bearing on Charles's state of mind when he executed the deed April 2, 1982. The letter expressed Ms. Warren's concern over whether Charles had been manipulated into the marriage with Emily and into jointly deeding the property. It questioned whether ultimately Charles would be reduced to poverty as a result. The letter suggested the relationship with Emily might be analogous to Charles's prior relationship with the young woman from Costa Rica.

Relevancy is the logical tendency of evidence to prove a material fact. Indiana National Corp. v. Faco, Inc. (1980), Ind.App., 400 N.E.2d 202, 206. A major issue in this case is whether Charles jointly deeded the property to Emily at least partly as a result of feelings he had been abandoned by most of his children, and they had disapproved of his past behavior. Ms. Warren's letter provided relevant evidence as to this issue. It gave insight to the court as to the past relationship existing between Charles and his children. Thus, it was material evidence on that issue.

III. Admission of Tape Recording

The children next contend the trial court erred in admitting a tape recording of a conversation between Charles, Emily, Charles's sister and Emily's father May 2, 1982. The children argue the tape was not sufficiently intelligible for admission into evidence, citing Lamar v. State (1972), 258 Ind. 504, 282 N.E.2d 795. Further, they argue it was not relevant. We disagree with both contentions.

Lamar's criteria for admission of tape recordings in criminal proceedings generally have been applied in civil cases. See, In the Matter of Wireman (1977), 270 Ind. 344, 351, 367 N.E.2d 1368, 1372, cert. denied sub nom. Wireman v. Ind. Supreme Ct. Disciplinary Commission (1978), 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402; In the Matter of the Estate of Baird (1980), Ind.App., 408 N.E.2d 1323, 1330-31 and n. 11; Indiana Bell Telephone Co., Inc. v. O'Bryan (1980), Ind.App., 408 N.E.2d 178, 185-88. Tape recordings must, of course, be of such clarity as to be intelligible.

First, Emily argues clear, intelligible reproduction is particularly important for a jury. This was a bench trial, however. The tape was not forwarded as part of the record, but we have been provided with an extensive transcript of the conversations it...