Facts: Mother and Father, the parents of two children, divorced after 14 years of marriage.

The trial court’s local rules require each party to file, at least eight days before trial, a sworn statement with supporting documents to show their income and itemization of all assets and debts with their values.

The trial court’s local rules also require each party to file their witness and exhibit lists at least three days before trial, noting that not doing so “shall be grounds for exclusion” of witnesses and exhibits.

Father’s counsel did not file Father’s sworn statement attesting to income and marital property “until late in the afternoon of the day preceding trial.” Father’s counsel never filed the witness and exhibit lists.

When questioned by the trial court, Father’s counsel acknowledged that he was aware of the local rules and understood them.

The trial court let Father testify on his behalf but prevented Father from calling other witnesses or presenting exhibits because he did not abide by the Court’s local rules.

After the trial, but before the trial court’s decision was released, Father filed a statement showing that his trial counsel had been the subject of disciplinary actions in other states. The trial court entered an agreed order substituting new counsel for Father.

Two weeks later, the trial court entered a detailed final judgment. Here is a sample of some findings:

• Father chased Mother and the children down the highway with his car;
• Father disobeyed the court order by texting the children;
• Father violated the statutory injunction by withdrawing $100,000 in marital funds;
• Father intentionally interfered with the sale of marital property;
• Father intentionally failed to pay his part of the counseling costs;
• Father made derogatory and disparaging remarks about Mother’s intelligence, body parts, and weight in the children’s presence;
• Father has difficulty controlling his anger and a propensity to blame Mother and the children for his behavior; and
• Father emotionally and physically abused Mother.

The trial court awarded Father 55 days of parenting time, to be exercised on alternating weekends and some holidays. Mother was given sole decision-making authority.

Father appealed.

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

Parenting time. The Court affirmed the trial court’s award of only 55 days of parenting time:

The evidence demonstrated that Mother had been the children’s primary caregiver and had performed the majority of parenting responsibilities while Father was disengaged and inattentive. Father’s behavior during the divorce proceedings also demonstrated that he would not be likely to experience improved performance of parenting responsibilities in the future or to facilitate and encourage the children’s relationship with Mother.

The evidence established that Mother enjoyed a closer bond with the children than Father and was nurturing and attentive, whereas Father had alienated the children with his behavior toward them and Mother. The counselors testified that Father’s behavior had affected the children’s mental and emotional health in a negative manner. Considerable evidence was presented regarding Father’s emotional abuse, which had caused the children anxiety and distress. Importantly, the children’s counselor specifically opined that Father’s visitation time should be limited due to the effect of his behavior on the children’s mental health.

Exclusion of evidence. Tennessee trial courts are given a wide degree of latitude in their determination of whether to admit or exclude evidence, even if this evidence would be relevant. Trial courts also have broad discretion regarding the enforcement of local rules.

When determining the proper sanction for a party’s failure to name a witness on a witness list, trial courts ordinarily should consider:

• the explanation given for failing to name the witness;
• the importance of the testimony of the witness;
• the need for time to prepare to meet the testimony; and
• the possibility of a continuance.

With these considerations in mind, the trial court may let the witness testify, exclude the testimony, or grant a continuance so the other party can take the deposition of the witness or otherwise prepare to meet the testimony.

When a trial court excludes a party’s evidence, the party must make an offer of proof to preserve that issue for appeal. An offer of proof should contain the substance of the evidence excluded and the evidentiary basis supporting the admission of the evidence. These requirements may be satisfied by presenting the actual testimony, stipulating the content of the excluded evidence, or presenting a summary, oral or written, of the excluded evidence. Generally, the appellate courts will not consider issues relating to the exclusion of evidence when this tender of proof has not been made.

Tennessee courts recognize two exceptions to the rule requiring an offer of proof. The first is in the rule itself and applies when the substance of the evidence and the specific evidentiary basis supporting admission is apparent from the context of the questions. The second has been fashioned by the courts and applies when exclusion of the evidence seriously affects the fairness of the trial.

The Court found the sanction imposed was well within the trial court’s authority and Father’s failure to make an offer of proof was fatal to his appeal:

Father argued the trial court abused its discretion by declining to waive its local rules and by failing to perform the analysis described [above]. Father also contends that he was prejudiced by the trial court’s decision to limit his ability to present evidence at trial. We determine, however, that Father’s arguments are impacted by his failure to make an offer of proof at trial in compliance with Tennessee Rule of Evidence 103(a) (“Error may not be predicated upon a ruling which … excludes evidence unless a substantial right of a party is affected, and … 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.”). This failure ordinarily renders the issue waived.

Here, we are unable to determine whether Father’s excluded documentary evidence would have affected the outcome of the trial due to Father’s failure to make an offer of proof concerning these documents. We likewise determine that neither of the exceptions to requiring an offer of proof is applicable here. As such, we conclude that Father has waived the issue presented concerning the trial court’s exclusion of his documentary evidence.

The Court affirmed the trial court’s judgment in its entirety, found Father’s appeal to be frivolous, and awarded Mother her attorney’s fees incurred on appeal.

Source: Creger v. Creger (Tennessee Court of Appeals, Middle Section, March 16, 2023).

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