809 F.2d 541 (8th Cir. 1987), 86-5048, Schempp v. Reniker
|Citation:||809 F.2d 541|
|Party Name:||Jana SCHEMPP, et al., Appellant, v. Jay RENIKER, Appellee.|
|Case Date:||January 21, 1987|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted Oct. 15, 1986.
Wayne F. Gilbert, Rapid City, S.D., for appellant.
Thomas J. Nicholson, Sioux Falls, S.D., for appellee.
Before ROSS and WOLLMAN, Circuit Judges, and DUMBAULD [*], Senior District Judge.
DUMBAULD, Senior District Judge.
The case at bar involves a private tort action on behalf of a child born March 1, 1980 (brought by her grandparents, the parents of defendant's ex-wife, as guardians ad litem) against her father, Jay Reniker, alleging sexual abuse. The instant action is the third court case involving these charges, and in connection with the present litigation the District Court ordered, under Rule 35(a) FRCP, 1 upon defendant's motion, an examination of the child by two psychologists and a physician.
Jayne Schempp (formerly Jayne Reniker), the child's mother, refused to permit the child Jana Schempp (formerly known as Jana Reniker) to be examined unless she, Jayne, the mother, were permitted to be present at all times during the examination. This restriction was rejected by the expert examiners as contrary to proper professional practice. Thus no examination took place, and defendant (Jay Reniker, the father of Jana) moved for sanctions and/or summary judgment. 2 The matter was disposed of by the District Court with perhaps Solomonic wisdom. The motion for summary judgment was denied, as it would be unfair to deprive the child, Jana, of her judicial remedy when the obstruction to the proceedings was clearly the fault of the mother, Jayne, and not of Jana. Hence the action was dismissed, without prejudice to the right of Jana to reactivate proceedings when she becomes sui juris and no longer a minor under her mother's influence and control. We affirm.
To elaborate more fully the reasons justifying the District Court's order, a review of the history of the litigious relationships among the parties will be helpful.
Jay and Jayne were married in 1976. Jayne began a divorce action in April, 1984. Soon thereafter claims arose that Jay had sexually abused his children Jana and Jonathan. It is quite possible that these charges had their genesis in the wish to strengthen the wife's case for divorce and custody, though post hoc ergo propter hoc is never a conclusively cogent argument.
The charges resulted in a criminal prosecution against Jay. After hearing testimony for eight days, a Minnehaha County jury acquitted him after deliberating little more than two hours.
The sex charges were again litigated in a bitterly contested protracted divorce trial, which was...
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