Strickland v. Strickland
| Citation | 618 S.W.2d 496 |
| Parties | James Odell STRICKLAND, Plaintiff-Appellee, v. Pansy P. STRICKLAND, Defendant-Appellant. |
| Decision Date | 30 March 1981 |
| Court | Court of Appeals of Tennessee |
Craig J. Donaldson, Memphis, for defendant-appellant; Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, of counsel.
Don A. Southern, Memphis, for plaintiff-appellee; Bruce & Southern, P. C., Memphis, of counsel.
The wife appeals from a judgment of the trial court which awarded the husband a divorce and denied her a divorce, and she also complains of the trial judge's interpretation of Rule 26.02(1), Tennessee Rules of Civil Procedure. The husband brought the original action for divorce alleging, among other grounds, cruel and inhuman treatment on the part of the wife. The wife cross-filed for a divorce based upon the same grounds. The trial court granted the husband a divorce on the ground of cruel and inhuman treatment and dismissed the wife's cross-complaint.
Plaintiff Pansy Strickland and defendant James Strickland were married in November of 1942. They had no children of the marriage, and they separated on March 14, 1978. The parties each owned fifty percent of the stock in Strickland Manufacturing Company, Inc. (company). The trial court made a division of the property owned by the parties, and that portion of the judgment is not challenged on appeal.
Witnesses testified that the Strickland house was disorderly and unclean and contained piles of unwashed clothes and dishes. According to the plaintiff and others, the plaintiff did the cooking or the couple ate sandwiches. Maxine Johnson testified that the defendant told her that she did not understand why the plaintiff put up with her. Plaintiff testified that the defendant would be in her pajamas when he left for work in the morning and still in them when he returned that evening. The defendant denied these claims, and her witnesses testified that the defendant had an average attitude toward household chores and did do some cooking and cleaning.
The plaintiff testified that during the last six or eight months of the marriage the defendant would sleep on the couch and not come to bed at all, despite plaintiff's expressed desire for a normal sexual life. The plaintiff's sister testified that the defendant had told her that while she liked being married, she did not like "the sleeping part of it." Two witnesses testified that the defendant told them she did not love the plaintiff and was only staying with him for "what she could get." The defendant admitted she slept on the couch, but she explained that her conduct was warranted by a toothache which eventually led to oral surgery and long-standing back problems.
According to the plaintiff, there was no sexual intercourse between the parties after August 1977. Maxine Johnson, employee of defendant, testified that the defendant told her she didn't mind being married, so long as she didn't have to sleep with her husband. The defendant did not deny this, but she indicated "female trouble", and a "back problem" prevented normal relations. The defendant testified that she did make advances toward the plaintiff, but he refused her.
The plaintiff complained that the defendant made trips out of town to visit church acquaintances without his consent and would often stay out late at night. The defendant, who held a ministerial license, would meet and discuss religion with people she would pick up on these trips, including men. According to the defendant, her ministry to people she picked up was carried on during business trips she made for the company.
On many occasions the plaintiff was embarrassed by defendant, who often sent meat back in restaurants to be recooked, and told employees that their upcoming wedding anniversary was going to be the last one, that the plaintiff was doing a poor job and letting the business go down, and that she didn't love the plaintiff and wanted to see him broke. Defendant explained that the incidents in restaurants were handled discreetly and her statements about the business were not intended to embarrass the plaintiff, but only to convey her displeasure in having no control over a company in which she was a 50% owner. Ernest Newburn, the company accountant, admitted that the business had declined about 50%.
The plaintiff complained that in some instances employees disliked the conduct and attitude of the defendant, however he admitted she had acted as a trouble-shooter when trouble arose with employees at the Amory, Mississippi plant, and she, in fact, did straighten out the problem. The defendant also worked in the plant in Memphis, Tennessee, and she helped found the company, working full-time until the last two or three years of the marriage.
The defendant described her husband's attraction to other women and cited one incident in which involvement with an employee of the Amory, Mississippi plant led the woman's husband to threaten to kill the plaintiff. The discovery of a pair of ladies bikini panties and a package and a half of male contraceptives led the defendant to believe her husband was having an affair. In conjunction with the defendant's testimony, photographs were introduced showing the plaintiff with a woman named Martha Burns in Southhaven, Mississippi. The defendant further testified that the plaintiff told her that he visited a woman named Linda Husted in the hospital and offered to set her up in a business. The plaintiff denied sexual involvement with other women, visiting Husted in the hospital and offering to set her up in business, and the presence of male contraceptives and another woman's bikini panties in the house.
We can not say that the evidence preponderates against the granting of a divorce to the husband and the dismissal of the wife's suit for divorce. T.C.A. § 27-3-103. The judgment of the trial court in this regard is affirmed.
In considering the second issue on appeal, we note that in the trial court and in this court the parties relied on Rule 26.02, Tennessee Rules of Civil Procedure, as promulgated in 1970. We must first note that the 1970 rules of discovery were revised effective July 1, 1979. The scope of discovery in effect at the time these depositions were taken is governed by the 1979 revised rule 26.02(1) which provides as follows, with bracketed language reflecting the 1970 rule and the italics denoting the 1979 change:
26.02. Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) IN GENERAL. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any (relevant facts) discoverable matter. It is not ground for objection that the (testimony) information sought will be inadmissible at the trial if the (testimony) information appears reasonably calculated to lead to the discovery of admissible evidence.
We further note that the 1979 revised rule 26.02(1) is the same as federal rule 26(b)(1), effective in 1970.
This issue arises out of the fact that on pretrial discovery deposition the defendant failed to name a detective previously employed by her to investigate the conduct of the plaintiff, as a person "who has information about this divorce suit that is pending." It must be noted that we are dealing with factual witnesses, not expert witnesses.
A problem arises because of the form of some questions posed to the defendant during the discovery. Over several pages of the transcript, the attorney for the plaintiff asked the defendant for the names of witnesses she proposed to produce at the trial. The defendant was evasive, hesitant, and unresponsive. On appeal the defendant argues that the plaintiff was not entitled to an answer to those questions which seek the identity of trial witnesses. We fail to find a reported Tennessee decision on the issue.
In courts of federal jurisdiction the majority view appears to be that a party may not be asked on pretrial discovery for the names of trial witnesses. 4 Moore's Federal Practice § 26.57(4), at 26-204 (2d ed. 1980). This view is reasonable because normally the attorney, not the party, decides on the witnesses to be called at trial. Whether or not a particular witness will be called often depends upon the unfolding of various facts at trial taken in the light of what the witness knows or does not know, and trial tactics will, at times, demand the exclusion of a witness for varied reasons. We, therefore, hold that a party may not be questioned on pretrial discovery deposition for the identity of factual witnesses to be used at the trial.
This is not to say, however, that the word "witness" can not be used in seeking the identity of persons with knowledge of discoverable matter. In Moore, supra, it is stated: "(i)t (the similar federal rule) certainly requires disclosure of all potential witnesses, for a witness must necessarily be a person 'having knowledge of (some) discoverable matter.' " We do hold, however, that the better form of the question would not use the word "witness," but rather the words "person," "individual," or "people." This identity of the information sought would relate the question directly to the knowledge of the deponent who might not understand the meaning of the word "witness." This form of question would also eliminate some confusion that has arisen as to whether the word "witness" used for this purpose relates only to eye witnesses or to all people who have knowledge of discoverable matter.
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