JERRI L LIDDELL V RODNEY L LIDDELL (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
JERRI L. LIDDELL, by her Guardian
DARLENE ELLIS,
UNPUBLISHED
June 28, 2011
Plaintiff-Appellee,
v
No. 294656
Chippewa Circuit Court
LC No. 08-009951-DO
RODNEY L. LIDDELL,
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
In this divorce action involving a division of the parties’ marital property and an order of
spousal support, defendant Rodney Liddell appeals as of right from the judgment of divorce. We
affirm.
Plaintiff Jerri Liddell and defendant married in March 2004. In May 2005, while riding
on a motorcycle with defendant, plaintiff suffered serious injuries after a collision with another
vehicle. Plaintiff sustained a closed-head injury, and at trial the parties stipulated that plaintiff
“is disabled from a closed head injury.” On the basis of plaintiff’s brain injury, her daughter,
Darlene Ellis, became her guardian and conservator. Defendant cared for plaintiff for some time
after the accident, but in July 2007 the parties separated. Ellis filed a complaint for divorce on
plaintiff’s behalf in June 2008.
At trial, Ellis was the sole witness for plaintiff. After plaintiff rested her case, defendant
expressed his desire to call plaintiff as a witness, but the trial court precluded him from doing so,
as reflected in the following colloquy:
Defense counsel: Your Honor, I need to ask several questions [of
plaintiff]. Obviously, nothing complex, fine. There are several issues I need to
ask regarding this.
***
The Court: Obviously, she is disabled. What kind of questions do you
have to ask?
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Defense counsel: Just a few questions regarding a few things.
***
Regarding Remax Realty.
The Court: We don’t care.
Defense counsel: Actually [defendant] didn’t get income from Remax
Reality [sic]. These questions matter. Basically the guardian testified about how
her mother was feeling.
The Court: I assume we are saying she can’t work, Miss Ellis says she
can’t work?
Ellis: Yes.
The Court: And she is not going to be able to work?
Ellis: Correct.
***
Defense counsel: She feels the fact she has a traumatic brain injury—she
hasn’t been found incompetent to testify. But I will not interfere with the Court’s
ruling. . . .
Defendant challenges the trial court’s refusal to allow testimony by plaintiff on the
grounds that (1) MCL 600.2161 entitled him to call the opposing party as a witness at trial, and
(2) the trial court shirked its obligation under MRE 601 to question plaintiff to ascertain whether
she was incompetent. “The mode and order of interrogation of witnesses [rest]s within the trial
court’s discretion.” Linsell v Applied Handling, Inc, 266 Mich App 1, 22; 697 NW2d 913
(2005). An abuse of discretion exists when a court selects an outcome falling outside the range
of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006). To the extent that this issue demands that we construe a Michigan Rule of
Evidence or a statute, we consider de novo these legal questions. Waknin v Chamberlain, 467
Mich 329, 332; 653 NW2d 176 (2002).
“The purpose of MCL 600.2161[1] is to permit calling the opposite party, or his agent or
employee, as a witness with the same privileges of cross-examination and contradiction as if the
1
The language comprising MCL 600.2161 reads:
In any suit or proceeding in any court in this state, either party, if he shall
call as a witness in his behalf, the opposite party, employee or agent of said
opposite party, or any person who at the time of the happening of the transaction
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opposite party had called that witness.” Linsell, 266 Mich App at 26. MRE 601 cautions,
“Unless the court finds after questioning a person that the person does not have sufficient
physical or mental capacity or sense of obligation to testify truthfully and understandably, every
person is competent to be a witness except as otherwise provided in these rules.” Pursuant to
MRE 611:
(a)
The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.
We initially observe that although the basis for the trial court’s refusal to permit
testimony by plaintiff seems not entirely clear, it does not appear that the court necessarily
deemed plaintiff incompetent to testify as contemplated in MRE 601. In light of the parties’
stipulation near the beginning of the bench trial that plaintiff’s traumatic brain injury had
rendered her disabled, a reasonable inference arises that the trial court exercised the authority
and discretion invested in it by MRE 611(a) to prevent plaintiff from experiencing “harassment
or undue embarrassment.” MRE 611(a)(3). Given (1) the parties’ stipulation concerning
plaintiff’s brain injury, and (2) the testimony of plaintiff’s guardian-daughter, immediately
before the court precluded plaintiff from testifying, about plaintiff’s ongoing medical difficulties,
we simply cannot conclude that the trial court made a decision beyond the range of reasonable
and principled decisions when it denied defendant’s request to elicit testimony by plaintiff.
Maldonado, 476 Mich at 388; Linsell, 266 Mich App at 22-26.
Even assuming that the trial court incorrectly refused defendant’s calling of plaintiff as a
witness, we discern no substantial prejudice to defendant arising from this evidentiary ruling.
MRE 103(a); MCR 2.613(A). Defendant complains on appeal that the ruling prevented him
from asking plaintiff about “division of assets, location of assets, the care and help offered by . . .
Defendant . . . after the accident, issues regarding the ability to work and the receiving of
commissions from the parties’ place of employment, and the payment of joint taxes on behalf of
the parties.” But our review of the record confirms that the parties introduced testimony by Ellis,
defendant and two other defense witnesses, as well as documentary evidence, that touched on all
the topics about which defendant now purports that he wanted to question plaintiff. Because of
the cumulative nature of the testimony that defendant hoped to elicit from plaintiff, we detect no
out of which such suit or proceeding grew, was an employee or agent of the
opposite party, shall have the right to cross-examine such witness the same as if
he were called by the opposite party; and the answers of such witness shall not
interfere with the right of such party to introduce evidence upon any issue
involved in such suit or proceeding, and the party so calling and examining such
witness shall not be bound to accept such answers as true.
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measurable prejudice to defendant stemming from the trial court’s ruling to forbid plaintiff’s
testimony. Badiee v Brighton Area Schools, 265 Mich App 343, 357; 695 NW2d 521 (2005)
(observing that “[a]ny error resulting from the exclusion of cumulative evidence is harmless”).
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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