Facts: Mother and Father divorced in 2018 with an agreed parenting plan designating Mother as the primary residential parent.

Eleven months later, Father petitioned to change custody.

Mother sent this interrogatory to Father: “Please list all witnesses you intend to call at trial, giving their names, addresses, and a short statement of what you expect their testimony to be.”

Father named three witnesses but did not identify Mother as one of them.

When the trial began, Father called Mother is his first witness. Mother’s counsel objected because Father did not list Mother as a trial witness in his interrogatory answer.

The trial court did not allow Father to call Mother in his case-in-chief.

Father tendered Mother’s discovery deposition as an exhibit.

Later, Father asked the trial court to reconsider. To prevent cumulative testimony, the trial court allowed Father to call Mother as a witness but only as to events that occurred after her deposition was taken.

At the close of Father’s proof, the trial court granted Mother’s motion to dismiss Father’s petition for failure to prove a material change of circumstances.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee Rule of Civil Procedure 26.02 provides that parties may obtain discovery regarding any matter

which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including . . . the identity and location of persons having knowledge of any discoverable matter.

The Court found it was error to prevent Father from calling Mother as a witness but concluded the error was harmless:

While parties may discover the identities of persons having relevant knowledge of any discoverable matter, this Court has held that parties are not entitled to discover the identities of the persons their adversary intends to call as a witness, absent a local rule or court order providing the same. . . . Further, we have discovered no local rule for the [trial court], nor have we been directed to any by Mother or Father, that governs the time for the pretrial exchange of witness lists. Accordingly, Father’s response to Mother’s Interrogatory [] complied with Tennessee Rule of Civil Procedure 26.02, and, as a result, Father had no obligation to disclose “all witnesses [he] intend[ed] to call at trial,” as requested by Mother. Therefore, we conclude that the trial court abused its discretion by prohibiting Father’s counsel from calling Mother as a witness during Father’s case-in-chief.

However, while the trial court erred in prohibiting Father’s counsel from calling Mother as a witness during his case-in-chief, this Court has also held that the erroneous exclusion of evidence does not require reversal where the substance of the evidence reaches the finder of fact by other means. . . .

While the trial court abused its discretion in denying Father’s the opportunity to call Mother as his first witness during his case-in-chief, the trial court allowed him to submit Mother’s deposition testimony as an exhibit to the record. Additionally, on the second day of trial, the trial court allowed Father’s counsel to call Mother as a witness in order to testify about events that occurred since the date her deposition had been taken. Moreover, the trial court stated during the proceedings and in its final order that it had read Mother’s deposition and that it had taken her testimony into consideration. . . . After our review of the record, we conclude that the trial court heard, read, and analyzed all of the competent and relevant evidence needed in order to resolve the issue before it. We are unable to determine how, based on the evidence in this record, the outcome of this case would have been different had Father’s counsel been permitted to call Mother as a witness during Father’s case-in-chief. Accordingly, we conclude that the trial court’s error was harmless.

The Court affirmed the trial court’s dismissal of Father’s petition.

McAdams v. McAdams (Tennessee Court of Appeals, Eastern Section, August 13, 2020).