The opinion
JAMES DANIEL GEYER, JR., )
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9707-CH-00372
VS. )
) Coffee Chancery
) No. 96-158
KATHLEEN HELEN GEYER, )
Defendant/Appellee.
)
) FILED
February 20, 1998
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF COFFEE COUNTY
AT MANCHESTER, TENNESSEE
THE HONORABLE GERALD L. EWELL, SR., CHANCELLOR
JOSEPH E. FORD
McBEE & FORD
17 So. College Street
Winchester, Tennessee 37398
Attorney for Plaintiff/Appellant
ROBERT F. HAZARD
COPELAND, CONLEY & HAZARD
111 West Grundy Street
P. O. Box 176
Tullahoma, Tennessee 37388
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
This case arises from the divorce of James Geyer (the Husband) and
Kathleen Geyer (the Wife). The trial court decreed the parties divorced and awarded
custody of their minor child to the Wife. In addition, the court ordered that the Wife
be designated the custodian of an account which was the sole property of the child.
The Husband has brought this appeal before the Court of Appeals.
I.
The first issue presented by the Husband is whether the trial court erred
in finding as a matter of fact that the Husband had an obsessive and paranoid
personality. On February 12, 1997, the court filed a Memorandum Opinion in
response to several motions including a Motion for New Trial. In its opinion, the court
made the following statement:
At the outset the Court says and said from the Bench that
there is some real concern about [the Husband’s]
personality, which the record shows, unfortunately, to be
somewhat obsessive and paranoid. This is an unusual
and undesirable situation but is not, in the opinion of the
Court, to such a degree that it should affect his right to
have said child in his physical custody as will be decreed.
Subsequent to this opinion, the Husband filed a motion to strike the foregoing
language arguing that the finding was contrary to the proof put on during the trial. The
Husband averred that the terms “obsessive” and “paranoid” have specific
psychological and psychiatric meaning within those disciplines of study and that
without expert testimony in this matter tending to show such character traits, “this
court is not in a position to make such a finding.” While the court refused to strike the
finding, it did order that the language and any reference thereto be sealed with no
portion to be revealed to the general public.
The Husband argues that the proof before the Court was that he was a
good father and a professional at his work. In his brief, the Husband acknowledges
that there was proof that he took issue with the Wife traveling for work and that he
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confronted her supervisor in an attempt to stop her work-related travel. He also
acknowledges that there was proof that he taped conversations with the Wife during
the pendency of the divorce and hired private investigators to follow her. In addition,
the proof showed that the Husband kept a pistol in the home for protection contrary
to the Wife’s wishes. He admits that he tapped the home phone line, explaining that
he did so to monitor phone calls with his ex-wife. It is the Husband’s position that
none of these activities, taken singly or as a whole, can lead to the conclusion that he
is paranoid and obsessive.
The Husband acknowledged that he had hired a private investigator to
follow the Wife around their hometown as well as in Nashville and to Detroit on a
business trip. The investigator questioned a counselor that the Wife was seeing in
Nashville. The Husband stated that he had some concerns regarding the role this
man was playing. The Wife testified that the Husband surreptitiously installed caller
ID in their home which the Wife did not discover for some time. She said that the
Husband would call her at work many times during the day intimating that he did not
trust that she was really there.
Rule 13(d) of the Tennessee Rules of Appellate Procedure provides the
appropriate standard of review:
Unless otherwise required by statute, review of findings of
fact by the trial court in civil actions shall be de novo upon
the record of the trial court, accompanied by a
presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.
See Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). To reiterate, the
finding of fact at issue was that the Husband's personality is “somewhat obsessive
and paranoid.” After reviewing the record, we cannot say that a preponderance of the
evidence is contrary to the trial court’s finding. The Husband readily admits many of
the incidents which support this finding regarding his personality. Moreover, such a
determination was relevant to the issues with which the court was faced such as the
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custody of the parties’ minor child. While the Husband expressed concern that these
terms have specific psychological and psychiatric meanings within those disciplines
of study, they are also common adjectives by which non-professionals might describe
persons. It is obviously in this sense that these terms were used by the court below.
We find that the evidence does not preponderate against the finding that the
Husband, at least for the time period involved, exhibited a personality which was
“somewhat obsessive and paranoid.”
II.
In his second issue, the Husband contends that the court erred in
changing the custodian of the parties’ minor child's custodial account from him to the
Wife. The parties had stipulated that this account was the separate property of the
minor child. We review the trial court’s decision to change the custodian of this
account de novo without a presumption of correctness as none is given a trial court’s
conclusion of law. Hamblen County Educ. Ass'n v. Hamblen County Bd. of Educ., 892
S.W.2d 428, 431 (Tenn. Ct. App. 1994).
The Husband asserts that the case of Reymann v. Reymann, 919
S.W.2d 615 (Tenn. Ct. App. 1995), stands for the proposition that the courts do not
have the authority to make an order regarding the interest in any property of a child.
We disagree. In Reymann, the trial court divested the interest of a father and his adult
daughter in two annuities which the father and daughter jointly owned and vested the
same in the mother as trustee of a spendthrift trust for the benefit of the daughter.
This court vacated the portion of the judgment affecting the daughter’s property
correctly reasoning as follows:
So far as this record shows, the daughter is not a party to
this suit, and neither the Trial Court nor this Court has any
authority to make any order regarding her interests in any
property. . . . It seems that the Trial Court has required the
defendant to contribute his absolute property right in the
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annuities to a spendthrift trust to a daughter who is an
adult, has graduated from college and, so far as this
record shows, is legally competent. No authority is cited
or known to this Court which authorizes a party to a
divorce case to contribute to a trust fund for the benefit of
a competent adult child.
Id. at 618. We find that Reymann is not authoritative as it rests on facts which are
completely distinguishable from those in the case at bar. Specifically, the “child” there
was a legally competent adult and the lower court’s order did much more than change
the custodian of the property at issue.
However, authority which is directly on point can be found in the
Tennessee Code. Section 34-11-102(d) (1996) provides in pertinent part as follows:
If the parents of a minor child are divorced, the court may
award the guardianship of the property of the minor child
to the parent who, in the court’s judgment, would best
serve the welfare of the minor child and the child's estate.
The parent appointed guardian of the child’s estate may,
but does not have to be, the parent with legal custody.
The trial court is vested with clear authority pursuant to this statute to award the
guardianship of property of a minor child to either parent when the parents divorce.
In this case, the court determined that it would best serve the welfare of the minor
child to appoint the Wife as custodian of the account, and based upon the record
before us, we affirm this decision.
III.
In his final issue, the Husband asserts that the trial court erred in
denying his request to make an offer of proof regarding the changing of the custodian
of the minor child’s custodial account. The Husband made a post-trial motion “for the
issuance of an order allowing the reopening of the proof in the divorce case with
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regard solely to the issue of which party is to be designated custodian of the
Waterhouse account of the minor child.” As grounds for his motion, the Husband
averred that “prior to trial he was assured that this issue in fact was not at issue at the
trial and that he would remain the custodian of said account for the minor child of the
parties. He would show that, at the trial of the case, he did not testify concerning
where the money in that account came from or the fact that he had been custodian
of the account and handled the account for the minor child of the parties by
agreement of the parties.” In addition, the Husband alleged that “in order to obtain
proper appellate review of this Court’s decision to change the custodian of that
account for the minor child this proof should be allowed to be placed in the record.”
As stated, the Husband moved that he be allowed to make an offer of proof in the
alternative.
Overruling the motion, the court examined all five of the references to
the custodial account which were found in the trial transcript. The court stated that
“upon consideration of these citations together with the entire record in this cause and
weighing the capabilities and suitability of the parties relative to this matter the Court
is satisfied with its ruling in this regard and deems no further proof necessary, nor is
it deemed appropriate to reopen the proof and allow an offer to be made by [the
Husband]. He had his opportunity to thoroughly litigate this matter for trial.” This was
the second time following the trial that the court addressed this issue for it had
previously overruled a motion by the Husband to reconsider designation of the Wife
as custodian of the child’s account.
We must review two decisions made by the trial court, first its decision
not to reopen the proof and next its decision not to permit an offer of proof. As for the
former, it is well settled that a court’s decision regarding the reopening of the proof for
further evidence is within the discretion of the trial court, and unless it appears that the
trial court’s action has permitted injustice, its exercise of discretion will not be
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disturbed on appeal. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147,
149 (Tenn. 1991). We thus review this decision for an abuse of discretion. Robertson
County, Tenn. v. Browning-Ferris Indus. of Tenn., Inc., 799 S.W.2d 662, 665 (Tenn.
Ct. App. 1990); see Oliver v. State, 348 S.W.2d 325, 327 (Tenn. 1961). The
Husband’s motion indicates that, given a second opportunity, he would have
presented proof of the money’s origin and of the fact that he was the sole custodian
of the account by his wife’s agreement. The five references to the custodial account
found in the record do reveal that the Husband was primarily responsible for this
account -- it is even a part of his testimony that the Wife agreed for him solely to
handle the Waterhouse accounts. As such, this additional proof would have had little
affect on the court’s consideration of this issue, and therefore it is highly unlikely that
its absence has permitted an injustice. Moreover, the trial court stated that its
decision to designate the Wife as custodian followed a “weighing [of] the capabilities
and suitability of the parties relative to this matter.” As our opinion has heretofore
revealed, there was ample proof from which the court could have formed opinions
regarding the parties’ capabilities and suitabilities. We therefore find that the court
did not abuse its discretion in denying the Husband’s request to reopen the proof.
Turning to the issue of the court’s denial of the Husband’s request to
make an offer of proof, we first cite the rule regarding offers of proof as follows:
(a) Effect of Erroneous Ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected,
and . . .
(2) Offer of Proof. In case the ruling is one excluding
evidence, the substance of the evidence and the specific
evidentiary basis supporting admission were made known
to the court by offer or were apparent from the context.
Tenn. R. Evid. 103. With regard to this rule, the courts are clear that “[t]he general
rule is that ‘assuming an offer of proof has been seasonably made, it is error for the
trial court to refuse to permit counsel to state what evidence he is offering.’” Alley v.
State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994) (quoting 89 A.L.R. “Offer of
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Proof--Ruling--Error” § 2 at 283 (1963)). The problem with the application of this rule
and its liberal interpretation to the instant case is that Rule 103, by its language,
applies to rulings which admit or exclude evidence during trial. Its purpose is to
ensure that excluded evidence be in the record in order for an appellate court to
determine if the exclusion was in error. Alley, 882 S.W.2d at 816.
The case at bar is not a case about excluded evidence; rather it is a
case in which the Husband, after three days of trial, sought to reopen the proof with
evidence that could have been presented at trial. As we have found, the court did not
abuse its discretion in not reopening the proof as the proffered evidence was not
significantly different to that which was in the record. Under these circumstances, we
find that the law does not compel that an offer of proof be permitted. Therefore, the
trial court did not err in disallowing the Husband’s offer of proof.
IV.
In conclusion, we affirm the decision of the trial court in all respects. The
Court did not err in finding that the Husband had an obsessive and paranoid
personality. Nor was it error for the court to change the custodian of the parties’ minor
child’s account from the Husband to the Wife. Finally, we find that the court did not
err in denying the Husband’s request to reopen the proof or to make an offer of proof.
Remand this cause to the trial court for any further proceeding that may become
necessary. Tax the costs on appeal to the appellant.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
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_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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