Jackson v. Jackson, 82-506.

• Decision Date: 11 May 1983
• Docket Number: No. 82-506.,82-506.
• Parties: Henry L. JACKSON, Appellant, v. Barbara JACKSON, Appellee.
• Court: D.C. Court of Appeals

Page 459

461 A.2d 459

Henry L. JACKSON, Appellant, v. Barbara JACKSON, Appellee.

No. 82-506.

District of Columbia Court of Appeals.

Argued March 23, 1983.

Decided May 11, 1983.

Patricia A. Barnes, Washington, D.C., for appellant.

Stanley M. Dietz, Washington, D.C., for appellee.

Before NEBEKER, PRYOR and TERRY, Associate Judges.

TERRY, Associate Judge:

On this appeal from an order granting the parties an absolute divorce, appellant challenges only that portion of the order which denied his request for visitation rights with his son. We hold that the trial court did not abuse its discretion in denying that request.

I

The parties were married on September 7, 1968, and on September 22, 1970, their only child, Michael Jackson, was born. In November 1972 the parties separated.

Appellee testified that during her courtship with appellant, she noticed that he was overly dependent on his family, particularly his mother, and that he sometimes exhibited "lapses of memory." Nevertheless, she "cared about him, [and] . . . because he was in church, [she] wanted someone with whom [she] could carry out church work," so they were married. Major problems developed, however, when Michael was born.

Appellee decided to stay at home the first two years and care for Michael. Appellant was unhappy with this decision, apparently because his mother wanted appellee to return to work while she herself took care of the child. Their family life progressively deteriorated. One day appellant's supervisor at work called appellee and recommended that appellant see a psychiatrist. Together appellant and appellee visited the psychiatrist, who told appellee that her husband was very ill and needed immediate hospitalization.¹

Appellant occasionally exhibited abnormal behavior. For example, appellee testified that appellant would lock her and Michael in a room and not let them out, that he sprayed her with mace "at least a dozen" times, and that twice he tied her hands behind her back.² Once he disappeared for an entire week, leaving no trace of his whereabouts.

Appellant's bizarre behavior continued after their separation. For example, appellee testified that once while she was attending a choir rehearsal, appellant came to the church and placed on top of the piano a graduation card to her "to which he signed the name of one of the members of [the] church, and . . . put two prophylactic rubbers in there and also one church offering envelope." She stated that since their separation in 1972, appellant had never expressed any desire to see Michael regularly until about a year before the trial. She also testified that she encouraged her son "to be sympathetic [towards his father] because he just [was] not himself," but she felt that the decision whether to see his father "should be his decision."

Appellant had some difficulty answering simple questions put to him by his counsel, and at times his testimony was disjointed and confused. When asked about his reasons for wanting to visit his son more often, he said, "It would encourage him to become more advanced in learning English and how to print and write his name." In response to questions about what activities he would engage in with his son if he were granted visitation rights, appellant's answers were vague and, as the trial court noted, showed that he "seemed to plan none of the visitation activities that are ordinary for a boy of Michael's age. . . . Only through leading questions on redirect did [appellant's] lawyer elicit responses about visiting museums."

Dr. Christine K. Kehne, a psychiatrist at Saint Elizabeths Hospital, testified that appellant's mental health would improve if he had more contact with his son. She recommended that a visitation program be established with initial bi-weekly visits of three to four hours in the company of some family member. After six months, Dr. Kehne suggested, the court could review the case and, depending on the degree of progress, decide whether unchaperoned visits might be feasible. Although Dr. Kehne had never met with Michael to discuss her plan, she testified that she had "no doubt whatsoever" that a visitation arrangement "would be an entirely safe and desirable experience for them both under reality conditions. . . ."

"Trial court determinations of custody, child support, visitation rights, and counsel fees . . . are subject to reversal only for clear abuse of discretion." Moore v. Moore, 391 A.2d 762, 770 (D.C.App.1978) (citations omitted). On the other hand, we have held that "[t]he denial to a parent of his right of visitation with his children, who are in custody of the other parent, is a drastic action . . . justified only in extreme cases." Paine v. Paine, 201 A.2d 20, 22 (D.C.App.1964). In Surrey v. Surrey, 144 A.2d 421 (D.C.Mun. App.1958), we recognized that a mother's illness "would not ipso facto deprive her of the privilege of seeing her children."

When custody of children has been awarded to one parent, the parent deprived of their custody has the right of visitation with the children and ought not to be denied that right unless by his conduct he has forfeited his right, or unless the exercise of the right would injuriously affect the welfare of the children. Id. at 423; see Townsend v. Townsend, 205 Md. 591, 597, 109 A.2d 765, 768 (1954). After reviewing the record, we have concluded that this is the sort of "extreme" case contemplated in Paine, and that the trial court therefore did not abuse its discretion in denying appellant's request for visitation rights.

Appellant contends that the trial court did not give proper weight to the testimony of Dr. Kehne recommending that a visitation program be established.³ The record does not support this contention. The trial court's opinion shows that it fully considered Dr. Kehne's testimony concerning appellant's mental state and the desirability of granting him visitation rights. The court concluded, however:

There is not the slightest doubt that Dr. Kehne...