Bowlin v. Bowlin

• Court: Court of Appeals of Tennessee
• Decided: June 24, 1999
• Docket: 03A01-9807-CV-00243
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE June 24, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk RONALD D. BOWLIN, ) C/A NO. 03A01-9807-CV-00243 ) Plaintiff-Appellee, ) ) ) ) ) APPEAL AS OF RIGHT FROM THE v. ) HAMBLEN COUNTY CIRCUIT COURT ) ) ) ) MARY WILMA BOWLIN, ) ) HONORABLE KINDALL T. LAWSON, Defendant-Appellant.) JUDGE

For Appellant For Appellee

PAUL G. WHETSTONE DOUGLAS R. BEIER Morristown, Tennessee Evans & Beier Morristown, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 In this divorce case, the trial court awarded Ronald D.

Bowlin (“Father”) the “sole and exclusive custody” of the

parties’ minor child, Mariah Summer Bowlin (“Summer”),1 age 3.

The child’s mother, Mary Wilma Bowlin (“Mother”), was awarded

specific visitation rights. Mother appeals, raising one issue

for our review: Did the trial court err when it admitted into

evidence records of Mother’s in-patient stay at a drug and

alcohol rehabilitation center operated by Cornerstone of

Recovery, Inc. (“Cornerstone”).

I.

In the original complaint for divorce, Father charged

that

[Mother] is an alcohol abuser and also takes Prozac for depression. She is both physically and verbally abusive to Husband when drinking alcohol and has on occasions too numerous to recite subjected the minor child to this conduct, as well as driving the child around in an automobile when she is in this condition.

In addition to a divorce, Father sought “immediate temporary

custody” of Summer as well as her exclusive custody following the

final hearing.

Mother filed an answer to the original complaint. She

accompanied it with a counterclaim for divorce in which she

sought the “exclusive care, custody and control” of Summer. In

her answer, Mother stated the following:

1 For ease of reference, we will refer to the child by her middle name -- the name used by her parents.

2 ...[Mother] would show to the Court that she has admitted that she has a problem with alcohol. [Father] has capitalized upon [Mother’s] decision to deal with her substance abuse problem by seizing custody of the parties’ minor child. At present, [Mother] is alcohol-free and plans to live a life of sobriety. She denies that she has been physically and verbally abusive to [Father] unless provoked by him. She denies that she has driven with the child in an automobile when under the influence of alcohol.

The parties’ pleadings frame issues that bring into play Mother’s

alleged chemical dependency. Evidence on this subject was

clearly relevant on the issues of divorce and the relative

fitness of the parties to be Summer’s custodian.

Father’s original complaint was filed on May 9, 1997.

On May 15, 1997, Mother was voluntarily admitted to the drug and

alcohol rehabilitation center operated by Cornerstone. She was

discharged June 16, 1997.

Father subpoenaed Mother’s records at Cornerstone.

Upon Cornerstone’s motion raising issues of privilege, the trial

court determined that the “records in their entirety are

necessary for the conduct of [the] proceeding and that failure to

disclose said records would be contrary to public interest.”2 It

ordered that the records be filed and maintained by the trial

court clerk under seal. It further ordered that the parties be

permitted access to the records. This preliminary ruling is not

assigned as error on this appeal.

2 See T.C.A. § 33-3-104(10)(A)(iv)(Supp. 1998).

3 On or about August 21, 1997, Mother’s records at

Cornerstone were filed under seal. The records were accompanied

by the affidavit of Cornerstone’s “Medical Records Custodian.”

The affidavit conforms to the requirements of T.C.A. § 68-11-

405.3

Martha Rogers-Hornsby, “the records custodian or keeper

of the records at Cornerstone,” was called as a witness by

Father. She identified Mother’s file at Cornerstone,4 after

which Father moved its admission into evidence. Father’s motion

was met with the following objection:

Your Honor, these records contain statements from what I’d like to call a holographic declarant. These are counselors at Cornerstone who have sat down with Ms. Bowlin and interviewed her throughout the course of her treatment there. Ms. Bowlin would make a statement, and the counselor would allegedly hear the statement and would write down what was said. That is a third-party, holographic declarant, who, I submit, is not here today.

3 T.C.A. § 68-11-405 provides, in part, as follows:

(a) The records shall be accompanied by an affidavit of a custodian stating in substance:

(1) That the affiant is duly authorized custodian of the records and has authority to certify the records;

(2) That the copy is a true copy of all the records described in the subpoena;

(3) That the records were prepared by the personnel of the hospital or community mental health center, staff physicians, or persons acting under the control of either, in the ordinary course of hospital or community mental health center business at or near the time of the act, condition or event reported therein; and

(4) Certifying the amount of the reasonable charges of the hospital or community mental health center for furnishing such copies of the record.

* * * 4 Ms. Rogers-Hornsby’s oral testimony also laid a proper foundation to qualify Mother’s records as business records under Rule 803(6), Tenn.R.Evid.

4 And this is not a business record in the traditional sense. And if the Court were to allow these records to be used in any way whatsoever, here, today, it would deny me the right to cross-examine the person who actually wrote down the information.

The trial court overruled the objection, and the entirety of

Mother’s records at Cornerstone were admitted into evidence. On

subsequent direct examination, Ms. Rogers-Hornsby was asked to

identify specific documents in the records, and Father sought to

bring the contents of these documents to the court’s attention.

These efforts were also met with objections, all of which were

overruled. It is the trial court’s rulings on Mother’s

objections that form the basis for her singular issue on this

appeal.5

II.

Mother’s issue causes us to focus on subsection (6) of

Rule 803, Tenn.R.Evid. -- a provision of the Rules of Evidence

dealing with hearsay exceptions. Rule 803(6) provides as

follows:

A memorandum, report, record, or data compilation in any form of acts, events, conditions, opinions, or diagnoses made at or near the time by or from information transmitted by a person with knowledge and a business duty to record or transmit if kept in the course of a regularly conducted business activity and if it was the regular

5 Mother candidly -- and correctly -- acknowledges that if the medical records were properly admitted, it cannot be said that the evidence preponderates against the trial court’s judgment awarding Father custody of Summer. See Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.App. 1996). For this reason, she does not make an issue as to the lower court’s factual findings.

5 practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes every kind of business, institution, association, profession, occupation, and calling, whether or not conducted for profit.

Rule 803(6) is commonly referred to as the business records

hearsay exception. “It rests on the premise that records

regularly kept in the normal course of business are inherently

trustworthy and reliable.” Alexander v. Inman, 903 S.W.2d 686,

700 (Tenn.App. 1995). To qualify for admission under Rule

803(6), the documents sought to be admitted must satisfy the

requirements set forth in the Rule. Id. These requirements were

satisfied in this case by the affidavit of the medical records

custodian. See T.C.A. § 68-11-405. See also T.C.A. § 68-11-406

(“The copy of the record shall be admissible in evidence to the

same extent as though the original thereof were offered and the

custodian had been present and testified to the matters stated in

the affidavit.”) As previously indicated, the requirements of

the Rule were also satisfied by the oral testimony of Ms. Rogers-

Hornsby.

Mother’s initial objection to the introduction into

evidence of her records is without merit. Mother argues that her

records should not have been admitted into evidence because to do

so would deny her “the right to cross-examine the person who

actually wrote down the information.” While her “no cross-

examination” argument may be true, it is legally immaterial in

6 this case. Rule 803(6) -- like its statutory “ancestor”6 -- is

specifically designed “to enable litigants to introduce and use

business records without calling the numerous witnesses who were

involved in preparing and keeping them.” West End Recreation,

Inc. v. Hodge, 776 S.W.2d 101, 105 (Tenn.App. 1989). Generally

speaking, an objection based on the failure of a party to call

the individual or individuals who prepared the business records

is not sufficient to block their admissibility.

Once Mother’s records at Cornerstone were admitted into

evidence, counsel for Father asked Ms. Rogers-Hornsby to identify

and read from specific documents in the file -- the Physician’s

Summary of Physical Findings and Recovery Issue, Addiction

Assessment forms, a psychological test form, History, Social

Assessment, and Progress Notes. Much of the questioning

pertained to Mother’s statements to counselors and to Dr. Riley

Senter, medical director of Cornerstone. Mother’s statements,

while hearsay, were clearly admissible. See Rule 803(1.2),

Tenn.R.Evid. They pertained to Mother’s use of alcohol and

drugs, and other subjects relevant to Mother’s fitness to be the

custodian of Summer. They were generally not favorable to Mother

and, hence, were clearly “against the declarant’s interest.” Id.

Mother’s objections to the admissibility of the records as they

pertained to her statements were again based upon the absence at

trial of the individuals who wrote down Mother’s comments. As

previously indicated, such an objection generally is not

sufficient to bar the introduction of business records into

evidence.

6 T.C.A. § 24-7-111, repealed by Chapter 273, Public Acts of 1991.

7 A relatively small portion of Ms. Rogers-Hornsby’s

testimony pertained to diagnoses made by Dr. Senter. Counsel for

Mother challenges these notations on the basis that they should

not have been admitted into evidence because they pertain to

diagnoses made by an expert who was not called as a witness. In

this connection, it should be noted that the business records

exception specifically encompasses “opinions, or diagnoses.” Id.

To the extent that Mother’s objection can be construed as

complaining that there was no showing of Dr. Senter’s

qualifications to make the diagnoses or to express the opinions

contained in Mother’s records, this issue, generally speaking,

“goes to weight and not admissibility.” Graham v. State, 547

S.W.2d 531, 538 (Tenn. 1977).7 See also MC CORMICK ON EVIDENCE 503

(John W. Strong ed., 4th ed. 1992).

The drug and alcohol rehabilitation center operated by

Cornerstone appears to be a reputable institution, and there is

nothing about the challenged records to suggest that “the source

of information or the method or circumstances of preparation

indicate lack of trustworthiness.” See Rule 803(6), Tenn.R.Evid.

Mother’s issue is found to be without merit.

The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant. This case is remanded for

such further proceedings, if any, as may be required, consistent

7 The opinion in Graham was published before the Rules of Evidence were enacted. That case was decided under T.C.A. § 24-714 (later T.C.A. § 24-7- 111), since repealed. Rule 803(6), Tenn.R.Evid., is similar to the former code section.

8 with this opinion, and for the collection of costs assessed

below.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.