Are Attorneys Allowed to be Present During Judge’s Questioning of Children; Hamilton County Circuit Court

Robbins v. Robbins, (Tenn.Ct.App. filed 8/16/2018)


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TRIAL COURT:  This appeal arises from a divorce. Wife sued her husband Husband for divorce in the Circuit Court for Hamilton County after approximately 20 years of marriage. Following trial, the Trial Court divided the marital estate, entered a permanent parenting plan regarding the parties’ minor children. Husband appealed raising a host of issues. Of note, the Husband argued that the Trial Court erred in not allowing him to be present when the Judge questioned the children in chambers.  The Court of Appeals held that that the Trial Court erred in excluding Husband, pro se, and Wife’s attorney from in-chambers questioning of the Children, however it was not reversible error.


TENNESSEE LAW:  The Trial Judge has discretion to interview children apart from the courtroom setting if he considers it is in the best interest of the child. However, if he elects to follow this procedure, he must examine the child “in the presence of attorneys for each side and in the presence of the court reporter” Newburger v. Newburger, 10 Tenn. App. 555 (1930), and in order to have a complete record on appeal, a transcript of such evidence must be filed. Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997).

In Haines v. Haines, No. E2005-02180-COA-R3-CV, 2007 WL 27112,  (Tenn. Ct. App. Jan. 4, 2007), we held that: “[T]he right to have counsel physically present during a trial court’s interview of a child is a substantial right, implicating, as it does, a litigant’s right to due process.”


COURT OF APPEALS:  The Court of Appeals addressed this issue as follows:

Initially, we recognize that the Trial Court took steps to ensure fairness to the parties and proper procedure. The record contains a sealed transcript of the Children’s testimony in chambers, which facilitates appellate review. The Trial Court also invited the parties to submit questions. Nevertheless, we are troubled by the Trial Court’s decision to exclude Wife’s counsel and Husband, acting pro se, and the attendant due process implications.

This is perhaps an unusual scenario. Given Husband’s history of domestic assault, the Trial Court understandably was hesitant to subject the Children to his interrogation. We do not take issue with the Trial Court’s decision to not permit Husband to directly question the Children. To that extent, we disagree with Husband’s argument on appeal. However, Wife’s counsel and pro se Husband were not in the same room as the Children during their testimony, and the Children’s testimony subsequently was sealed. The Trial Court found that it “has not spoken with two teenagers who were as appropriate, intelligent, well-spoken, clear in their thought process, and mature as these two young people.” Having read their testimony, we see how the Trial Court arrived at this assessment of the Children’s intelligence and maturity. The Children’s welfare is of course a high priority, but the due process rights of the parents may not be ignored either.

As a result of the procedure adopted by the Trial Court, the parties had no access to or knowledge of the Children’s testimony. It was sealed and made unavailable to them but was considered by the Trial Court. Although Wife’s counsel and pro se Husband were allowed to submit questions beforehand, that is no substitute for being there. Wife’s counsel and Husband perhaps could have supplemented their questions in response to the Children’s testimony by submitting additional questions in writing to be asked by the Trial Court. At the very least, they would have known what was being said by the Children and considered by the Trial Court in a case in which the parents’ as well as the Children’s interests were at stake.

We hold that the Trial Court erred in excluding Wife’s counsel and Husband, acting as his own counsel, from chambers during the Children’s testimony or, at a minimum, providing some method for Wife’s counsel and Husband, pro se, to be able to observe the testimony live from a location other than the Judge’s chambers.

Our holding that the Trial Court erred, however, does not conclude our analysis. Not all error is reversible. Rule 36 of the Tennessee Rules of Appellate Procedure
provides that a final judgment “shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). The Trial Court clearly relied on a host of other testimony and evidence in arriving at its conclusions regarding parenting. We hold that the Trial Court’s error in questioning the Children outside of the presence of Wife’s counsel and Husband, pro se, or in the alternative, providing some means for them to observe the Children’s testimony live was error but, under these circumstances, not reversible error. This additional testimony and evidence as already discussed in the Opinion more than preponderates in favor of the Trial Court’s findings relevant to the issue of parenting.

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