Trial Judge decisions regarding the credibility and weight of telephonic witnesses testimony reviewed by same standard as other witnesses

Terri Ann Kelly v. Willard Reed Kelly

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 custodyruling. Kellyv.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.