Simpson v. Simpson

• Decision Date: 04 September 1986
• Docket Number: No. 85-45-II,85-45-II
• Citation: 716 S.W.2d 27,67 A.L.R.4th 261
• Parties: Martha Ann Zeliff SIMPSON, Plaintiff-Appellee, v. Robert Wilfred SIMPSON, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 27

716 S.W.2d 27

67 A.L.R.4th 261

Martha Ann Zeliff SIMPSON, Plaintiff-Appellee, v. Robert Wilfred SIMPSON, Defendant-Appellant.

No. 85-45-II

Supreme Court of Tennessee at Nashville.

Sept. 4, 1986.

Rehearing Denied Sept. 22, 1986.

R. Horton Frank, III, Dearborn & Ewing, Nashville, for plaintiff-appellee.

Mary Frances Lyle, Nashville, for defendant-appellant.

OPINION

FONES, Justice.

Plaintiff's original complaint sought a divorce on the ground of irreconcilable differences but was later amended to assert cruel and inhuman treatment and abandonment and non-support. Defendant filed a pro se answer denying that he had been guilty of cruel and inhuman treatment or abandonment and non-support. The case was tried on 22 May 1984 and 10 September 1984. Defendant was represented by counsel at the trial. Plaintiff's proof consisted of her testimony and the testimony of two corroborating witnesses. Defendant did not testify and the only evidence he presented was the testimony of Dr. Adolph Seigmann in support of his defense of insanity, which the trial judge sustained and dismissed the complaint.

The parties were married 4 March 1973. She was twenty years of age and he was twenty-nine. They were attending a community college in Massachusetts at the time. She went to work so that he could get a degree and the plan was that she would later return to college and obtain her degree. In the intervening years he has attended six different colleges without obtaining a degree and she has had to work throughout their marriage because he has never held a job for more than two or three weeks and apparently has made no effort to obtain employment in recent years. However, he served three years in the Marine Corp prior to marriage and is apparently qualified as an auto mechanic. In 1975 the parties moved to Nashville, where his parents and a brother live.

Plaintiff testified that their trouble began about three months after they were married. She testified that he has repeatedly told her that she was dumb, unattractive, called her a "bitch" and threatened to "push her face in." He constantly criticized her cooking and her housekeeping and said he could not understand how she could hold a job because she was not a good worker. She testified that he frequently called her at work, as many as two and three times a day, to complain about something she had not done at home or had done wrong according to his view or to report that he could not find some object. On one occasion he called her at work and asked if she had taken his checkbook; and receiving a negative response, he demanded that she search her purse. He picked her up after work and immediately searched her purse himself. When they got home, her dresser drawers were "turned over." It was later discovered that he had left his checkbook in his parents' car. Plaintiff testified that these constant calls at work were very disturbing and upsetting to her.

Defendant complained that she did not make enough money to provide him with the things he wanted. In the spring before the separation, although they had no money for such things, he bought equipment for his parents' new boat and charged two to three hundred dollars to accounts that plaintiff was responsible for. On occasion when she would try to talk to him about their problems, he would threaten to "punch [her] face in."

In July 1982, plaintiff's parents paid her plane fare so that she could visit them in El Paso, Texas, during her vacation. When she returned, defendant met her at the plane and "was very quiet and withdrawn." Later that night, after she had gone to bed, he told her that it was unfair that she could go on vacation and he could not. He found some souvenirs that she had bought and threw them around the room and went to the kitchen and ran the garbage disposal for an unusual period of time. Plaintiff went in to investigate and found that he was throwing all of the food in the refrigerator down the garbage disposal. When she asked what was going on, defendant ordered her out of the room.

Plaintiff was afraid to stay in the house with him and called a friend, Carol Schraw, who agreed to pick her up and provide her a place to stay. Plaintiff then called the police. Defendant came into the bedroom and asked if she had called the police. She responded in the affirmative. Defendant immediately headed for the closet where he kept his handguns. Plaintiff ran out of the house and left with Ms. Schraw, who had arrived to pick her up. She resided with Ms. Schraw about ten days. After the plaintiff and defendant had a long talk, defendant promised to control his temper and try to work things out and plaintiff returned to their home.

A few months later, defendant returned to the pattern of abuse described herein. Plaintiff moved out of their home and filed a complaint for divorce on the ground of irreconcilable differences.

Soon thereafter defendant called and asked to take her to lunch to discuss their problems. Plaintiff reluctantly agreed, and defendant picked her up and drove to Bowling Green, Kentucky. After they were on Interstate 65 headed for Kentucky, plaintiff asked where they were going and defendant pulled a handgun from under the seat and showed it to plaintiff. Defendant told plaintiff there was a Bible, writing paper and stamps under the seat and that she should write to her father because he was going to kill her. Plaintiff became ill twice and defendant stopped to allow her to "be sick by the road side." On each occasion defendant warned plaintiff that if she attempted to get away or attract attention, "something drastic would happen." In Bowling Green, defendant allowed plaintiff to go to a restroom in a gas station. When plaintiff came out, he canvassed the restroom to see if she had left a message of distress.

Plaintiff testified that on the trip to Bowling Green defendant made a lot of promises to do better if she would return home and live with him and that she promised to do so only because she felt it was the only way to get back to Nashville. Plaintiff persuaded defendant to take her to the place where she was residing; but first defendant went by their house, gathered up all of his handguns and put them in the car. Defendant told her that he was going to distribute them to the members of his family and that, if he was picked up by the police, he would get out on bail, get access to one of those guns and kill her or a member of her family. Plaintiff testified that she was afraid to live with defendant.

Defendant's acts of cruelty were adequately corroborated by plaintiff's witnesses Patricia Wallenburg and Carol Schraw.

At the conclusion of the hearing on 22 May 1984 defendant moved for a dismissal of plaintiff's complaint on the ground of defendant's insanity and submitted the deposition of Dr. Adolph Seigmann, taken 17 April 1984 for use in evidence and filed 21 May in support of the alleged insanity. The trial judge took the motion under advisement and adjourned the hearing for a later setting. On 27 July the trial judge entered an order denying defendant's motion and setting 10 September 1984 as the date to hear the remainder of the proof.

Doctor Seigmann was the only witness that testified at the second hearing. For some unknown reason, his deposition was not included in the record certified and filed in the Court of Appeals. That Court did not use T.R.A.P. 24(e) to correct the record. This Court entered an order directing the clerk of the trial court to certify and file the deposition with the clerk of this Court, if same had been filed in the trial court. This was done and we have the deposition properly before us. In most cases this circumstance would require that we remand the case to the Court of Appeals to reconsider their decision. However, this is not necessary here. The only material matter in the deposition that was not covered in Dr. Seigmann's testimony on 10 September was his qualifications as an expert witness. The Court of Appeals dispensed with the problem created by a psychiatrist testifying without any proof of his education, training, experience or qualifications by holding that plaintiff's counsel had waived his opportunity to challenge that testimony.

Doctor Seigmann was educated and board certified in psychiatry in Germany in 1953. After three years of research, he immigrated to Canada in 1956 and to the United States in 1960. He practiced in Delaware and Kansas, and at the time of his deposition he had practiced psychiatry in Tennessee for twenty-one years. He was chief of the mental hygiene clinic in the V.A. Hospital at Murfreesboro, when he saw defendant for the first time on 29 August 1983, more than two months after plaintiff filed this suit for divorce. Defendant was treated as an out-patient until 16 January 1984 when Dr. Seigmann had him hospitalized for one week for evaluation.

Doctor Seigmann testified that defendant was suffering from a psychosis known as paranoid schizophrenia, that he had probably been so afflicted since age twenty to twenty-two and that "schizophrenia is never ending." But, he said, defendant would appear to be normal when not under the influence of a "severe episode." His testimony was ambiguous and contradictory on the question of whether defendant had lucid intervals. He appeared to express the opinion that defendant was able to control his behavior and act and appear normal at all times except when he was having a severe episode.

We quote the following testimony of Dr. Seigmann on the effect that paranoid schizophrenia had upon his conduct:

Q. How, in your opinion, to a reasonable degree of medical certainty, does this malady affect his judgment and decision making processes with regard to his behavior toward others?

A. I might have to say something about myself, which you don't mind.

THE COURT: All right. A. I am now for 40 years and one month in my profession. Today psychiatrists just as soon more talk about how...