The Court of Appeals’ decision to affirm the family court’s award of custody to the father in its July 28, 2009 opinion in Divine v. Robbins, 385 S.C. 23, 683 S.E.2d 286 (Ct.App. 2009) isn’t terribly surprising. Being an uncooperative parent who withholds visitation to get one’s way, putting one’s own desires ahead of the child’s best interests, possessing an uncontrolled temper, and having untreated Narcissistic Personality Disorder (as the mother had in this case) are never ideal circumstances for a custody fight.
However, the Court of Appeals’ decision on evidentiary issues raised by the mother in her appeal is noteworthy. The trial court refused to allow mother’s mother to testify regarding her observations of the child after the child visited with the father because mother’s discovery responses only noted that the grandmother would testify “to Mother’s characteristics as a parent and her specific observations of Father.” Because grandmother’s proffered testimony went beyond mother’s discovery responses, the court prevented grandmother from testifying on this issue.
I am aware of no other reported South Carolina decision in which the court limited a witness’ testimony because the discovery response did not list the proffered topic as a topic of that witness’ testimony. Typically, the courts have allowed a witness to testify on any matter her or she was competent to testify to so long as the witness was listed in discovery.
Based on this decision, it is clear that attorneys responding to standard interrogatories will need to either be broader or more detailed (or both) in listing the proposed topics of a witness’ testimony. Failure to do so may cause the court to limit the witnesses testimony if the opposing party objects that the witness’ proposed testimony is outside the bounds of the discovery responses. A diligent attorney will also want to review the opposing party’s discovery responses when a witness is called by the other party to insure that the opposing party does not attempt to elicit testimony on issues that go beyond the topics listed in the discovery response.
