# FILED
February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk JAMES DANIEL GEYER, J R., ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00372 VS. ) ) Coffee Chancery ) No. 96-158 KATHLEEN HELEN GEYER, ) ) Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHAN CERY COUR T OF COFFEE COUNTY AT MANCHESTER, TENNESSEE THE HONORABLE GERALD L. EWELL, SR., CHAN CELLOR

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 REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - This case arises from the divorce of Ja mes Geyer (the Husband) and Kathleen Geyer (the Wife). The trial court decreed the parties divorced and awarded custody of their minor child to the Wif e. 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 th e 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 persona lity. On February 12, 1997, the c ourt filed a Memor

andu m Opinion in response to several motions incl uding 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] persona lity, which the record shows, unfortunately, to be somewhat

obsessive and parano id . This is an unusual and undesirable situation but is not, in th e opinion ofthe Court, to such a degree that it s hould 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 str ike the foregoing language arguing that the finding was contrary

to the proof put on during the tri al. The Husband averred that the terms “obsessive” and “paranoid” have specific p sychologicaland psychiatric meaning within those discipl ines of study and tha t without expert testimony in this matter tending to show such characte r tra its, “this court is not in a position to make such a finding.” While the court refused to strike the finding, it did order that t he language and any referenc e thereto be sealed with no portion to be revealed to the general public.

The Husband argues that the proof before the Cou rt was that he was a good father and a professional at his work. In his brief, the Husband acknow ledges t hat there was proof that he took issue with the Wife traveling for wor k and that he- 3 -

confronte d her sup ervisor in an attempt to stop her work-related travel. He also acknowledges

that there was proof that he taped conversations wi th the Wife during the pendency of the divorce and hired private inv estigators to follow her. In addition, the proof show

ed that the Hu sband kept a p istol in th e home for protection contrary to the Wife’s wishes. He admits that he tapped the home phone line, explai ning that he did so to monitor phone calls with his e x-wi fe . It is the Husband’s posi tion that
none of these activities, taken singlyor as a whole, can lead to the conclusion that he is paranoid and obsessiv e.

The Husband acknowledged that he had hired a private i nvestigator to follow the Wife around the ir hometown as well as in Nashville and to Detr oit on a b usines s trip. The investigator questioned a counselor that the W ife was seeing in Nashville. The Husband stated that he had some concern s regarding the ro le th is
man was playing. The Wife testified that the Husband surreptitiousl y installed caller ID in t heirhome which the Wife did not discover for s ome time. She said that the Husband would call her at work many times dur ing the day intimating

that he did not trust that she was real ly there.

Rule 13(d) of the Tennessee Rules of Appellate Procedure provides the appropr iate stan dard of r eview:

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 tr ial court , accomp anied 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 fa ct at iss ue was tha t the Husb and's pe rsonalit y is “somewh at obses sive and paranoid.” After review ing the record, we cannot say that a preponderance of the evidence is contrary to the tr ial court’s finding. The Husband readily admits many of the incidents which supp ort this findingregarding his pers onality. Moreover, such a determination was relevant to the issues with which the courtwas faced such as the- 4 -

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 commonadjectives by w hich non-professionals might describe persons. It is obviously i n this sen se that th ese term s were used by the cour t below. We find that the evidence does not pr eponderate against the f indi ng that the Husband, at least for thet ime period involved, exhibited a personality which was “somewhat obsessive and paranoid.”

II

.

In his second issue, the Husband contend s th at the court erred in changing the custodian of the parties’ minor child's custodial account from him to the Wife. The parties ha d stipulated that this account was the separate property of the minor child. We review the trial c o urt’s decision to change the custodian of this accountde novo without a pres umption of correctness as none is g iven a trial court’s conclusion of law. Hamblen County Educ. Ass 'n v. Hamblen County Bd. of Educ. , 892 S.W.2d 428, 431 (Te nn. Ct. App. 1994).

The Husband

assert s that th e case of Reymann v. Reyma nn , 919 S.W.2d 615 (Tenn. Ct. App. 1995), stands for the propositi on that the courts do not have the authority to

make an o rder regardin g the in terest in any p roperty

of achild. We disagree. In Reymann , the trial court divested the interest of a father and his adult daughter in two annuities w

hich the father and daughter jointly owned and

vested the
same in the mother as trustee of a s pend thrift trust for the benefit of the da ughter. This court v

acated the porti on of the j udgment affe c ting the daughter’s pr operty correctly reasoning as follows:

So faras 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 regar ding her interests in any property.
. . . Itseems that the Trial Court has required the defendant to contribute his absolute property rig ht in the- 5 - annuitiesto a spendthrift trust to a daug hter who is an adult, has graduat ed fro m college and, so far as this record shows, is legally competent. N o authority is cited or known to th is Court whi ch autho rize s a party to a divorce case to contribute to a trus t fund for the benefit of a competent adult child. Id. at 618. We find that Reymann is n o t 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 ad ult and the lower co urt’s order did mu ch more than ch ange the custodian of the property at issue.
However, a uthori ty which is dir ectly 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 paren t wh o, in the court’s judgment, would best serve the welfare of the minor child and the child's estate. The parentappointed guardian of the child’s estate m ay, but does not have to be, the parent with legal custody

. The trial court is vested with clear authority purs uant to this statute to award the guardianship of proper ty of a mino r child to either parent when the parents divor ce. In this case, the c ourt determined that it wou ld best serve the wel fare of the minor child to appoi nt the Wife as custodian of the account, and based upo n the record before us, we affirm this decisi on.

III.

In his final issue, the Husband asserts that the tri al court e rred in denying his request to make an offer of proof regarding the c hanging of the custodian of the minor child’s custodi al account. The Husband made a post-trial motion “for the issuance of an ord er allo wing the reope ning of the proof i n the divorce case with- 6 -

reg ard solely t o the issue of which party is to be designated custodi an of the Waterhouse account of the minor child.” As ground s for his motion, the Husband averred that “prior to trial he w as 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 t estify conc erning where the money in that account came from o r the fact that he h ad been custodian of the account and handled the account for the minor child of the partie s by agreementof the parties.” In addition, the Husband alleged that “i n order toob tain proper appellate review of this C our t’s decision to change the custodian of that accountfor the minor child this pr oof should be allowed to be plac ed in the record.” As stated, th e Husba nd moved that he be allowed t o make an offer of proof in the alternative.
Overruling the motion, the court examined al l f ive of the references to the custodial account whic h were found in the trial t ranscript. The court stated that “upon consideration of these citati ons together with the entire record in this caus e and weighingthe capabilities and suitab ility of the parties relative to this matter the Court is satisfied withits ruling i n this rega rd and de ems no f urther pr oof nec essary, nor is it deemed appropriate to reopen the pr oof 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 th e trial that the court addr essed this issue for

it had previouslyoverruled a motionby the Hus band to r

econsid er desi gnatio n of the Wife as custodian of the child’s ac count.

We must revie w two decisions made by the tri al 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 settl ed that a court’s decision regarding the reopening of the prooffor further evidence is within the discretion of the trial court, and unless it appears that the tr ial court’s action has permitted injustice, its exercise of discretion will not b e- 7 -

disturbed on appeal. Simpson v. Frontier Community Cred

it 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 in dicates t hat, given a second opportu nity, he wou ld have presented proof of the money’s origin and of the fact that he was the sole c ustodian of the accou nt by his wif e’s agreem ent. The five references to the custodial ac count found i n the record do reveal that the Husband was primarily responsible for this account-- it is evena pa rt of his testimony that the Wife agreed for hi m solely to handle the Waterhouse accounts. As such, this additi onal proof would have had little affect on the court’s considerati on of this issue, and therefore it is highly unlikel y that its absence has permitted an injustice. Moreover, the tr ial court stated that its decision to designate the Wife as custodian followed a “w eighing [of] the

capabilities
a nd suitability of the parti es relative to this matt er.” As our opinion has he retofor e revealed, there was ample proof from w hich the court could have formed opinions regarding the parties’ capabilities and suitabilities. We therefore findthat the court did not abuse its

discre tion in denyin g the Hu sband’s reques t to reopen the pr

oof.
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 of fers of proof as follows:

(a) Effect of Erron eous Ruli ng. Error m ay n ot be predicated upon a ruling which admits or excludes evidence unless a substantial rig ht of the party is affected, and . . . (2) Offer of Proof. In case th e ruling is one excluding evidence, the substance of the evidence and the specific evidentiarybasis sup porting a dmission were made known to the court by offer or we re apparent from the context. Tenn. R. Evid. 103. With regard to this rule, the cour

ts are clear th at “[t]he general rule is that ‘assuming an offerof proof has been seasonably made, it is error for the trial court to refuse to permit couns el to state what evidence he is offering.’” Alley v. State , 882 S.W.2d 810, 815 (T enn. Crim. App. 1994) (quoti ng 89 A.L.R. “Offer of- 8 -

Proof--Ruling--Error” § 2 at 283 (1963)). The problem with the application of this rule and its liberal interpr

etation to the instant case is that Rul e 103, by its language , applie s to r ulings which admit or exclude evidence duri ng trial. Its purpose is to
ensure that excluded evidence be in the record in o rder for a n appellate court to determine if the exclusion w as in error. Alley

, 882 S.W.2d at 816.

The case at bar is not a case abou t excluded evidence; rather it is a
case in which the Husband, after thr ee days of trial, sought to reopen the proof with evidence that cou ld have been presented at trial. As we have found, the court did not abuse its discretion in not r eopening the proof as the p roff ered evidence was not significantlydifferent to that which was in the record. Under these circumst ances, we find that the law does not compel that an offer of proof be permitted. Therefore, the trial c ourt di d not err

in disa llowi ng the H usband’ s offer of proof.

IV.

In conclusion, we affirm the decision of the trial cour t in all respects. The Court did not err in findi ng that the Husband had an obsessive and paranoid persona lity. Nor was it error for the court to

change the custodian of the parti es’ minor child’s account from the Husband to the Wife. Finally, we findthat the court did not
err in denying the Husband’s request to reope n the pro of or to m ake an offe r of proo f. R emand this cause to the trial c ourt for any further proceedi ng that may becom e necessary. Tax the cos ts on appeal to the appellant.

_____________________________ BEN H. CANTRELL, JUDGE

CONCUR:- 9 -

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE