Gotwald v. Gotwald
| Decision Date | 09 November 1988 |
| Citation | 768 S.W.2d 689 |
| Parties | Richard G. GOTWALD, Plaintiff-Appellant, v. Susan C. GOTWALD, Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
Anne Russell, (on appeal), Robert L. Jackson (trial), Nashville, for appellant.
Lewis Conner, Robert E. Boston, Nashville, for appellee.
In this divorce case, the father, Richard G. Gotwald, has appealed from certain post-decree decisions of the Trial Court regarding custody, care and support of the infant child of the parties.
On November 14, 1983, the parties were divorced, custody of the 1 year old son of the parties was committed to the mother, and stated visitation was allowed the father who was ordered to pay $425 per month child support.
On May 24, 1985, the father filed a petition for injunction and change of custody on grounds of abuse of the child by the wife's intimate friend.
On the same date the Trial Court enjoined the mother and her intimate friend from interfering with the father's temporary custody of the child.
On May 28, 1985, the mother answered denying misconduct on the part of her intimate friend.
On September 10, 1985, the Trial Court restored custody to the mother under conditions excluding the intimate friend from association with the child and amended schedule of visitation with the father.
On March 10, 1986, the mother filed a "Counter Complaint", reciting a lengthy list of complaints against the husband and praying that she be restored to unrestrained custody, that the injunction against association with her intimate friend be lifted, that child support be increased, that the child advocate appointed by the court be discharged and for attorney's fees.
On April 2, 1986, the father filed an "Amended and Supplemental Complaint for Change of Custody", alleging further abuse of the child by the mother.
On April 3, 1986, the father filed an "Amended Complaint Adding Additional Defendant," naming the intimate friend of the wife and seeking to enjoin him from being in the presence of the child.
On May 13, 1986, the mother answered the Amended and Supplemental Complaint denying the material averments thereof.
The trial of this case consumed 9 weeks, involved 45 witnesses, and produced 7,375 pages of testimony. Obviously, any comprehensive summary of the evidence is impractical. The general substance of material evidence will be reviewed, in logical, but not chronological order in the record.
It is uncontroverted that, following the divorce in November, 1983, the father married his present wife whose first name is "Suzy", not to be confused with "Susan" his first wife and mother of the child. Also after the divorce, the mother established a social relationship with one Glenn Booth.
Dr. James McGeehee, a psychiatrist, testified without contradiction or objection that, prior to the divorce, he treated the father for "adjustment disorder" and "dysthymic disorder" arising out of loss of his wife's attention to the child and his affair with a girl friend.
The father testified to certain bruises on the child's body and statements of the child to him such as:
Glenn scares me
Mommy don't like you and I don't either.
Mommy said you're a drunk.
Glenn and Mommy pinch my fingers.
Glenn's not nice to me.
Don't take me to Mommy's.
Glenn pinched it (my ear).
Glenn pulls my hair.
Glenn punches me in my stomach.
The present wife of the father corroborated the testimony of the father.
Jo Larrimer, next door neighbor of the father, testified that the child made some of the above statements to her.
Meg Wade, a friend of the father, testified that she saw bruises and heard some of the above statements of the child.
The child advocate testified that the child made similar statements to her.
Charles Gentry, director of Family and Children's Services of Knoxville, Tennessee, testified that the father brought the child to him and that the child made statements similar to the above. However, Gentry also testified that the child told him he had not been hurt by Glenn or anybody.
Dr. Embry McKee, a psychiatrist, testified that the father brought the child to him on May 22, 1985, and that the child told him his hair had been pulled, his penis squeezed, his ear pulled, and his stomach hit, and that he had been whipped and "tinkled on" by "Glenn".
At Dr. McKee's direction, the child was taken by the father to Dr. Kent Kyger on May 24, 1985. Dr. Kyger testified that the child told him that Glenn was mean to him, hurt him, pinched him, burned him, put him in a closet and "pinched" his penis. Dr. Kyger further testified that he subsequently interviewed the mother and Booth and observed the child in Booth's presence and concluded that the child was suffering from anxiety caused by separation from his mother and that the statements of the child regarding abuse were untrue. The father asserts that the opinion of Dr. Kyger was strongly influenced by his discovery that Glenn Booth is a doctor.
Dr. Roland Summit a "sex abuse expert" criticized Dr. Kyger's methods and conclusions.
Carol Etherington, Director of Davidson County Victim Intervention Program, criticized Dr. Kyger's methods.
The child was interviewed on numerous occasions by employees of the Department of Human Services, the Police Department and the District Attorney General.
The mother, Susan Gotwald, testified that none of the alleged abuse occurred in her presence and there had been no opportunity for such to occur during the brief periods when Booth was alone with the child. The mother also testified that, immediately after the birth of the child, the father deserted her and the child and began living with his present wife, Suzy; that she sought reconciliation, but received only notes regarding oral sex, slinky negligees and X-rated movies.
Glenn Booth testified that there was no truth in the allegations of abuse.
Dr. Jill Chambers, the mother's obstetrician, testified of the behavior of the father after the birth of the child.
Dr. Vernon Sharp, a psychiatrist, testified that he had seen Booth 12 or 15 times and that he was not a sex abuser; also that he had seen the child once, but, in view of the many others interviewing the child, he terminated the interview in the best interest of the child. Dr. Sharp also testified that a child of the age of the subject child is "very malleable in terms of the power of suggestion," and "could be written on just like a blackboard."
Dr. Ralph Underwager, clinical psychologist, testified that he had reviewed the various interviews with the child and that they were improperly conducted and of no probative value.
Dr. Moisy Shopper, a child psychologist, testified that he had reviewed all of the interviews by various public employees and found them to be manipulative and non credible.
Dr. Lee Coleman, a child psychiatrist, also testified critically of the various investigatory interviews and approved the method of confrontation employed by Dr. Kyger. He also testified as to the ease with which a young child can be "programmed", as to the unreliability of the evidence acquired after suggestive questioning.
Dr. Emmett Dozier, child psychologist, testified as to the advisability of confrontation between child and accused abuser and the ease of "programming" a small child by a parent.
Dr. John Fields, pediatrician of the child since birth, testified he had never observed any evidence of abuse.
Dr. Joseph LaBarbera, a child psychologist who conducted psychological testing of the child in the summer of 1985, reported that the tests showed favorable attitudes toward the mother and Booth, and negative attitudes toward the father and Suzy. He also reported that the child told him that he accused Booth of abuse because Suzy told him to. He also reported that the I.Q. of the child had increased thereby negativing any "regression" from abuse.
Judson Bylar, director of the day care center where the child spent 5 days a week throughout 1985 and 1986, testified that he never observed any evidence of abuse and that the bruise on the child's thigh occurred on March 13, 1986, in a fall from the "monkey bar" at the day care center.
Three other employees of the day care center corroborated the testimony of the director.
On October 17, 1986, the Trial Court filed a 29 page memorandum disposing of the issues of (1) Credibility of Witnesses, (2) Abuse by intimate friend of wife, (3) Fitness of Parents, (4) Custody and Visitation, (6) Future Therapy, and (7) Conduct of Trial. Under the last mentioned topic, the Court wrote:
Lawyers for both parties have engaged in tactics which have greatly protracted the case and deepened the level of hostility. Such tactics cannot be condoned, and the Court's decision in this case is not to be interpreted as condonation of the tactics of either side. It is hoped that from now on, counsel can reduce the level of hostility and become instruments of peace rather than instruments of conflict.
The memorandum concluded:
The change in circumstances which has occurred since the November 1983 decree necessitates a modification in the father's visitation but do not justify a change in custody. An appropriate order will be entered.
On October 17, 1986, the Trial Court entered an order leaving custody with the mother, modifying the schedule of visitation with the father and requiring an agreed plan of therapy to be filed by January 1, 1987.
On March 31, 1987, the Trial Court filed a memorandum setting a fee for the child advocate of $16,588, of which $12,092 had been paid by the parties and the remainder of which, with $450 expenses were taxed as part of the costs.
On the same date, the Trial Court filed a memorandum in which $125,000 was awarded to the wife for attorney's fee.
On the same date, the Trial Judge filed a memorandum...
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