Kahre v. Kahre
| Decision Date | 28 November 1995 |
| Docket Number | No. 83706,83706 |
| Citation | 916 P.2d 1355,1995 OK 133 |
| Parties | Greg KAHRE, Appellant, v. Shawna Laneil KAHRE, Appellee. |
| Court | Oklahoma Supreme Court |
Michael Gassaway, Oklahoma City, Oklahoma, Timothy D. McCoy, David Goscha, McCoy Law Firm, Oklahoma City, Oklahoma, for appellant.
Chuck Moss, Oklahoma City, Oklahoma, for appellee.
Phillip J. Tucker, Edmond, Oklahoma, Guardian ad litem for the parties' minor children, B.K., and K.K.
This litigation has been long and complex. Consequently, this statement of its facts and procedural background must necessarily deal
only with those matters material to the outcome of the litigation. Because of the volume of what has gone on here, much must be passed over in this opinion to ensure that a clear understanding of the issues is provided. Even so, there is much to tell. 1
Greg Kahre and Shawna Tortolini were married on December 4, 1986, when Greg Kahre was 18 and Shawna Kahre 17. Of that marriage two children were born, a son, B.K., on July 14, 1987, and a daughter, K.K., on November 25, 1988.
The divorce and ensuing custody fight, from which this appeal arose, were preceded by an earlier divorce. Greg Kahre sued Shawna Kahre for divorce on December 14, 1988, nineteen days after the birth of their daughter K.K.. On February 10, 1989, the court in the first divorce action granted a divorce to both parties, gave custody of the children to Shawna Kahre, and gave Greg Kahre reasonable rights of visitation.
In February, 1990, shortly after the first divorce was granted, the parties resumed living together as husband and wife, and bought a house, but on January 16, 1991 Greg Kahre once again filed for divorce. The second divorce was granted in 1992. The first child custody order entered in the second case, dated January 31, 1991, but not filed until October 19, 1992, gave temporary custody to Greg Kahre, with rights of visitation to Shawna Kahre. 2
Shawna Kahre's visitation rights were suspended in an order dated October 4, 1991, but not filed until October 19, 1992. Apparently, Shawna Kahre's visitation rights were suspended on the strength of Greg Kahre's allegation that a clinical psychologist, Richard E. Sternlof, Ph.D., had notified the Oklahoma Department of Human Services of potential sexual abuse of B.K. As the later discussion of Dr. Sternlof's role in this matter reveals, however, Dr. Sternlof's notification of DHS was based solely on what Greg Kahre, and his mother, Jacque Kahre, told him, and was made because it was required by law, not because Dr. Sternlof believed there had been sexual abuse.
The trial court granted the parties a divorce on June 16, 1992 but reserved the custody issue for later hearing. The custody hearing was held on April 12, 1994. On April 15, 1994, the trial court granted Shawna Kahre custody of the children, effective June 1, 1994. The trial court directed that Shawna Kahre have periods of visitation with the children between April 15 and June 1, 1994, before obtaining permanent custody on June 1, 1994.
Within days of the trial court's April 15, 1994 ruling granting custody of the children to Shawna Kahre, the first of some seventy letters and a petition protesting the trial court's decision were filed with the Court Clerk. At least ninety percent of the letters were written on one of three printed forms. All the letters told only Greg Kahre's version of the facts and one was signed by Jacque Kahre.
Greg Kahre failed to produce the children for either the first or second period of visitation the trial court had ordered on April 15 During a hearing on June 3, 1994, after the children had ostensibly been returned to Oklahoma City, the trial court denied Greg Kahre's motion for new trial, saying that he had agreed to such a course only to get the children back into the jurisdiction of the court and because "you [Michael Gassaway] continued to push me." The trial court apparently decided that it did not have to stand by the agreement because it had been arrived at through coercion. On the same day Jacque Kahre once again removed the children from the jurisdiction of the court, and secreted them until after this Court stayed the trial court's permanent custody order of April 15, 1994, on September 26, 1994. Following the trial court's refusal to grant Greg Kahre a new trial, Mr. Gassaway engaged in a tirade before television cameras outside Judge Humble's courtroom at the Oklahoma County Courthouse. Mr. Gassaway was convicted of contempt of court and fined for his conduct.
1994. Shawna Kahre then learned that Jacque Kahre, Greg Kahre's mother, had abducted the children, and refused to return them. Shawna Kahre later reluctantly agreed that Greg Kahre could have a new trial if the children were returned. At a hearing held May 20, 1994, Greg Kahre's attorney, Michael Gassaway, claimed that he did not know where the children were and could get them back only if the trial court agreed that a new trial would be granted. The trial court then tentatively agreed to grant a new trial if the children were returned, but expressed extreme reluctance to approve the plan because it appeared that Shawna Kahre had been coerced into agreeing to it.
On July 23, 1991, in an order not filed until October 19, 1992, the trial court appointed Phillip J. Tucker as guardian ad litem of the Kahre children. For reasons unexplained by the record the guardian ad litem was not notified of his appointment until after the custody hearing of April 12, 1994. 3 Judge Humble did not know of the guardian ad litem's appointment either, as the order of appointment was made by Judge Humble's predecessor, Honorable Thornton Wright, Jr. Following his notification of his appointment the guardian ad litem participated fully in this matter.
On February 27, 1995, the trial court ordered that the children not again be removed from the jurisdiction of the court without the court's prior written approval, and that Shawna Kahre have visitation with the children in the presence and under the supervision of the guardian ad litem. The visitation was to be for three hour periods on Saturdays or Sundays, at times to be arranged by the guardian ad litem. In his report and brief, filed with this Court, the guardian ad litem reported that there were three weekend visitations with Shawna Kahre and the children in February, 1995. The guardian ad litem reported that the children were anxious at the start of the visitations, but that once the visitations began, "the children showed no fear nor anxieties about being around and interacting with their mother."
On March 3, 1995, Greg Kahre's counsel, Timothy McCoy, orally applied for an order from this Court staying an order of the trial court, dated March 2, 1995, granting Shawna Kahre supervised visitation on March 4, 1995, although Greg Kahre's previous counsel, Michael Gassaway, had agreed to the order. 4 We temporarily stayed the trial court's March 2, 1995 order on March 3 On March 7, 1995, the trial court entered another agreed order that, among other things, gave Shawna Kahre supervised visitation of the children on Saturdays, and directed Greg Kahre to "restrict access to children by Jacque Kahre."
1995, but withdrew our order and dissolved the stay on March 7, 1995.
On February 28, 1995, Greg Kahre filed a motion to disqualify Judge Humble. Earlier, Greg Kahre had filed a judicial complaint against Judge Humble, that was resolved in Judge Humble's favor. Greg Kahre took the position that because Greg Kahre had filed a judicial complaint, Judge Humble should recuse himself. The Chief Judge, Honorable John Amick, denied Greg Kahre's motion to require Judge Humble to recuse.
Greg Kahre filed a motion on March 1, 1994, to remove Phillip Tucker as guardian ad litem. Greg Kahre relied in part on the fact that the guardian ad litem had not participated in the April 12, 1994 custody hearing, although it is undisputed that the guardian ad litem was not notified of his appointment until April 14, 1994. Greg Kahre's complaint against the guardian ad litem dealt mostly with the details of the guardian ad litem's handling of the children during visitation, although the guardian ad litem's actions appear to have been designed to ensure that the visitations occurred. The trial court denied Greg Kahre's motion to remove Mr. Tucker as guardian ad litem.
Greg Kahre failed to make the children available for visitation by Shawna Kahre on March 9, and March 18, 1995, in violation of the agreed order entered March 7, 1995. Then, on March 27, 1995, the guardian ad litem filed an application for an order requiring the physical presence of the children at a hearing before the trial court. The trial court ordered a hearing to be held on March 30, 1995. The guardian ad litem's application also asked that DHS be given physical custody of the children, and the trial court entered an order to that effect. DHS, however, contended that the trial court, sitting as a divorce court and not as a juvenile court, lacked jurisdiction to enter such an order. Consequently, the parties agreed to, and the trial court entered, the March 7, 1995 order that vacated the order granting custody of the Kahre children to DHS.
The children were not present at the...
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