Keesee v. Keesee, 95-229

Decision Date14 June 1996
Docket NumberNo. 95-229,95-229
Citation675 So.2d 655
Parties21 Fla. L. Weekly D1401 Willard KEESEE, Appellant, v. Karen KEESEE, Appellee.
CourtFlorida District Court of Appeals

Patricia L. Strowbridge of Patricia L. Strowbridge, P.A., Orlando, for Appellant.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando, for Appellee.

W. SHARP, Judge.

Willard (Craig) Keesee appeals from a final judgment of dissolution of marriage. He argues on appeal that the trial court erred in awarding primary residential custody of the parties' six-year-old daughter and two-year old son to the former wife, Karen Keesee, and having done so, that the visitation schedule imposed by the court was not sufficiently "liberal." We affirm.

The party who seeks to challenge a trial court's initial custody decision in a contested custody case carries a heavy burden. Where the testimony is in conflict, the trial court must resolve all factual disputes. 1 The appellate court cannot readdress the credibility of witnesses (weight to be given to testimony by A. as opposed to B.) and the resolution of directly contradictory statements by witnesses. 2 Further, the initial custody determination by a trial court is one clothed in the longest of discretionary robes. Only if the appellate court concludes, after reading the record from beginning to end, that no reasonable trial judge would have reached the conclusion being appealed (another way of saying there was an abuse of discretion), is a reversal possible. 3

Counsel for Craig asserted at oral argument in this case that there was no competent evidence in the record upon which the trial court could reasonably have based its ruling. Counsel for Karen assured us there was more than a sufficient basis in the record. Under such circumstances, we have no choice except to read the entire record. Both attorneys cannot be right.

This case was vigorously litigated over a three-day period. Numerous witnesses appeared for both sides. There were expert witnesses, family members, neighbors, social friends, school teachers and acquaintances, a guardian ad litem, and the parties themselves. The record in this case arrived at the appellate court in a packing-sized box. We affectionately call such cases in the Fifth District a "box" case.

After reviewing the record in this case, we conclude that there was sufficient competent evidence to support the trial judge's rulings, and we cannot hold he abused his discretion. We choose to write an opinion in this case because we wish to warn appellate counsel not to make such arguments without good cause. However partisan the lawyer, and however intense the litigation below has been, candor with the appellate court is the only option. In the future, such extreme positions which prove to be without substance, may be grounds for this court to impose sanctions or take other measures to discourage such practice.

I. Determination of Primary Residential Custody in Former Wife's Favor

In deciding whether the record supports the trial judge's determination which favored the former wife in this case, we must, as an appellate court, read the record in a manner most favorable to her, and disregard any conflicting evidence counter to her position. 4 Had the trial court ruled in favor of the former husband, we would be reading the record to support his position. The following is a summary of the evidence and record presented, which supports Karen as the parent best suited to have primary residential custody of the children.

Numerous witnesses testified Karen is a loving, concerned parent, who had been the children's primary caretaker since birth. She was the parent who took them to their pediatricians for regular checkups, and for various illnesses. She participated in an unusually large number of programs and activities with the children: a parent-run preschool co-op; the Sunshine Generation Performance program; the PTA; volunteering as an Addition in the public school; sports programs; the M.D. Anderson counseling program for children whose family members have cancer; and religious instruction at the Holy Family Catholic Church. Not until appellant had temporary custody of the children did he participate to any extent in such programs.

Further, the testimony established that Karen was by far the more supporting, nurturing and loving parent. She put the children's interests and concerns before any other matter. She tried to educate herself to be a better parent by taking parenting classes and reading books about subjects relating to the children. She considered the daughter was "gifted" and thus checked out library books about how to raise such a child. She also sought help from experts and checked out books when she thought her son had a speech-delayed problem caused by numerous ear infections. She also played with the children, took them on field trips, to the park, swimming and read to them. During the marriage, appellee's job kept him away from home long hours, and he did not participate in such activities.

The court-appointed psychologist, Dr. Fleischmann, who did a custody evaluation for the court of the parties and the daughter (the son was too young) and the guardian ad litem, both concluded that appellee had by far the greater insight into the children's feelings and emotional needs and had met this responsibility well in the past. Since receiving counseling during the pendency of the dissolution, she was in a superior position to continue to do so. She also evidenced a superior willingness and desire to foster a continuing and close relationship with appellant, and the two sets of grandparents. There was evidence in this record that the daughter was much more closely bonded to appellee, and that although she loved her father, she was fearful and insecure with him, due to having witnessed his physical and emotional abuse of her mother.

Neither party in this case was free from blame or fault. Karen was shown to have abused taking diet pills which contained a prescription drug called phentemine, a "first cousin" to amphetamines. She was a rather messy housekeeper, and did not handle the family finances in a responsible manner. She partly blamed appellant for the financial difficulties in which they found themselves at the end of the marriage, and she accused him of consuming at least half of the diet pills, which were over prescribed for her. But, she admitted having problems and sought counseling. At the time this final hearing was held, the expert witnesses who evaluated her, felt she was making progress on all fronts, and that her prognosis to overcome her problems was good.

In contrast, appellant denied he had any problems, or that he needed any kind of counseling. There was contrary evidence. Based on it, the court could have found that appellant had committed physical and emotional spouse abuse during the course of the marriage, more particularly, during the last two years the parties lived together. His ugly conduct escalated from threats and yelling, to pushing and hitting, and at the end of the marriage, such conduct took place in front of the children, causing damage to the daughter's feelings for him.

A pivotal piece of the evidence was a Christmas morning tape made by appellee of their home, Christmas tree, and children opening their presents. The trial judge, the guardian ad litem, and Dr. Fleischmann all viewed the tape. So did we.

In the tape, the appellant and appellee begin to argue about finances. Karen asks Craig to back off and let the children enjoy their Christmas. But Craig says he cannot. Things escalate. The tape records Craig threatening to smash Karen's face in because she is "pissing" him off. She tells him she just recorded that threat on tape. Craig grabs the camcorder from her, hits her in the head with it (she testified) and breaks it. The picture vanishes but the sound continues to record. The children can be heard, terrified and screaming in the background. Craig then walks out of the house and is gone for days without letting them know where he is. One witness who saw the tape said Craig's depicted behavior did not surprise her. It was not unusual for him.

Dr. Fleischmann said in his report, and at the trial, that this taped incident showing appellant as sullen, angry, cursing and ultimately aggressive, illustrated appellant's lack of concern about the children's emotional well-being. He said the tape struck him powerfully as an "appalling display of insensitivity to the kid's needs."

Appellant also denied ever taking any of Karen's diet pills. Yet at least five witnesses testified he or she had seen him do so on various occasions. Karen testified Craig took as many of her pills as she did. He used them to get high when they went out in the evening, or socially with friends, and then late at night, to enable him to have sex with her. There was also testimony that appellant, during the time he had temporary custody of the children, slammed the door in appellee's face so that the daughter could not kiss her Mom goodby, and that he limited or restricted telephone contact by appellee with the children while they were in his household. He denied this behavior also.

Some of the most damaging evidence against appellant was brought out by his own counsel, during the cross-examination of Karen at the trial. This may have been as much Craig's fault for not being forthright with his attorney, as hers for not knowing what the answers would be to her questions. For example, Karen was asked why the cable bill for the marital residence was put in her maiden name rather than her married name. She replied that before the parties were married, Craig had been caught stealing cable, so the cable company refused to grant cable in his name. The parties lived in a residence owned by his parents, where Craig had been living, prior to their marriage.

II. Propriety of Allowing Dr. Fleischmann to Act as The Court's Independent Expert...

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    ...Part I); Regan v. Regan, 660 So.2d 1166, 1168 (Fla. 3d DCA 1995)(Schwartz, C.J., dissenting in part); Keesee v. Keesee, 675 So.2d 655 (Fla. 5th DCA 1996)(Griffin, J., concurring specially). The majority's refusal to follow the prior caretaking arrangement rule in this case may well result i......
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