Geyer v. Geyer

• Court: Court of Appeals of Tennessee
• Decided: February 20, 1998
• Docket: 01A01-9707-CH-00372
• Status: Published

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

-2- 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

-3- 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

-4- 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

-5- 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

-6- 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

-7- 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:

-8- _______________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE

-9-