Keisling v. Keisling

• Decision Date: 29 November 2005
• Citation: 196 S.W.3d 703
• Parties: Sharon Marcel KEISLING v. Daniel Kerry KEISLING v. Francisco (Frank) Huberto Guzman and Wife, Billie Ann Guzman.
• Court: Tennessee Court of Appeals

196 S.W.3d 703

Sharon Marcel KEISLING v. Daniel Kerry KEISLING v. Francisco (Frank) Huberto Guzman and Wife, Billie Ann Guzman.

Court of Appeals of Tennessee, Western Section, at Nashville.

March 3, 2005 Session.

November 29, 2005.

Permission to Appeal Denied by Supreme Court May 30, 2006.

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John E. Herbison, Nashville, Tennessee, for the appellants, Sharon Marcel Keisling, Frank Guzman, and Billie Ann Guzman.

Dan R. Alexander, Nashville, Tennessee, for the appellant, Sharon Marcel Keisling.

Gloria Jean Evins, Guardian Ad Litem, Lebanon, Tennessee, appellant, pro se.

Amanda G. Crowell, Lebanon, Tennessee, for the appellee, Daniel Kerry Keisling.

OPINION

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID R. FARMER, J., joined.

This is a post-divorce petition to modify custody. During the marriage, the mother and father lived with the mother's parents. The parties were divorced in September 1998, and custody of the parties' three children was granted to the mother. After the divorce, the mother and the parties' children continued to live with the maternal grandparents. In March 2000, the mother filed a petition to restrict the father's visitation, alleging that the father sexually abused the parties' two daughters. A guardian ad litem was appointed for the children. After a hearing, the allegations of sexual abuse were determined to be unfounded. Approximately a year later, the mother filed a second petition to restrict the father's visitation, once again alleging sexual abuse. The father filed a counter-petition for custody based on a material change in circumstances. The father alleged that the mother and her parents were causing harm to the children by subjecting them to persistent questioning and repeated physical examinations in an attempt to prove sexual abuse. The mother's parents were joined as third-party defendants. The mother's parents then filed a cross-petition for grandparent visitation. After a bench trial, the trial court granted the father's petition for a change in custody and allowed the mother unsupervised visitation in the grandparents' home. The grandparents' petition for grandparent visitation was dismissed. At the conclusion of trial, the guardian ad litem for the children submitted a request for $15,000 in fees. The trial court denied the request, awarding the guardian ad litem only the $1,500 she had already been paid. The mother, the grandparents, and the guardian ad litem now appeal. We affirm the decision of the trial court, except that we remand to the trial court for reconsideration of the guardian ad litem's fee request in light of the applicable law.

This is the second appeal in this venomous post-divorce struggle over child custody between the father on one hand and the mother and her parents on the other hand.¹ Respondent/Appellee Daniel Kerry Keisling ("Father") and Sharon Marcel Keisling ("Mother") were married and had three children, D.R.K. (a son, born April 9, 1991), R.A.K. (a daughter, born June 3, 1993), and H.R.K. (a daughter, born September 6, 1996). During the marriage, Mother, Father and the children lived in the same household with Mother's parents, Respondents/Appellants Francisco (Frank) Huberto Guzman and Billie Ann Guzman (collectively, "Grandparents"). The parties were divorced on September 16, 1998. In the divorce decree, Mother was designated as the primary custodial parent, and Father was awarded liberal residential parenting time. After the divorce, Mother continued to reside with the children in her parents' home.

In March 2000, Mother filed a petition to modify Father's visitation, seeking to restrict Father's visitation based on allegations that he had sexually abused the parties' daughters. In connection with this action, Father's visitation was initially suspended, then it was restricted pending final resolution. Mother and Grandparents reported the allegations of sexual abuse to the Department of Children's Services ("DCS"), which recommended that the children be physically examined. Based on this recommendation, H.R.K. and R.A.K. were both taken by Mother and Grandmother to the Our Kids Center at the Nashville General Hospital ("Our Kids Center" or "the clinic") for physical and psychological examinations. The reports on the examinations of H.R.K. and R.A.K. indicated that, when the girls would return from visiting Father, they would be questioned at some length by Mother and/or Grandparents about whether they had been subjected to sexual abuse. In addition, they would be examined physically for indications of sexual abuse, including examinations by Grandmother of the girls' genitals with a magnifying glass. The reports concluded that there was no evidence of sexual abuse. They also strongly recommended that Mother and Grandparents refrain from the questioning the girls regarding sexual abuse and refrain from physically examining them for signs of sexual abuse, noting that such repeated interrogations and examinations were harmful to the children.

On March 27, 2001, a hearing was conducted on Mother's petition to modify Father's visitation. On April 17, 2001, the trial court entered an order finding that Father "did not sexually molest any of the parties' minor children." Therefore, after more than a year of restricted visitation, Father's regular unsupervised visitation with the children was restored. The trial court ordered counseling for the children and for Mother, Father, and Grandparents.

In October 2001, R.A.K. was taken by Mother to see her pediatrician, Margareete Johnston, M.D. ("Dr.Johnston"). While in the examination room, R.A.K. allegedly volunteered comments to Dr. Johnston's nurse indicating that she had been sexually abused. Upon Dr. Johnston's recommendation, Grandparents brought R.A.K. and H.R.K. once again to the Our Kids clinic for physical examinations. As with the prior examinations, this second round of examinations indicated no sexual abuse.

In December 2001, Father filed a petition asking the trial court to grant him custody of the children. In May 2002, this petition was voluntarily dismissed.

On July 11, 2002, Mother filed a second petition to restrict Father's visitation with the children, based on renewed allegations of sexual abuse.² On July 12, 2002, Father signed a "Safety Agreement," agreeing to cooperate with DCS and to suspend his visitation until completion of the investigation into the renewed allegations of sexual abuse.

Meanwhile, on July 12, 2002, Mother took R.A.K. for yet another physical examination, this time at a rape crisis center in Memphis, based on comments that R.A.K. had made to Grandmother. Again, R.A.K. was examined for possible sexual abuse. This examination also indicated that no such abuse had occurred.

On July 22, 2002, approximately two weeks after the filing of Mother's second petition to restrict Father's visitation, the trial judge, Judge Clara W. Byrd, held what was characterized as an "emergency hearing" regarding the new allegations of child sexual abuse. Father filed no response to this second petition prior to the hearing. At the hearing, while discussing preliminary matters, counsel for Father told the trial court:

We don't think the kids are in a healthy environment in the maternal grandparents' house, and we think that the hatred between the grandparents and the father is damaging the kids. We're going to renew our petition to have the kids removed from that house or to change custody to [Father].

Counsel for Father later said that, because an earlier petition seeking to award Father custody was dismissed without prejudice, he intended "to refile the same now." Father, in fact, had not filed a written motion for a change in custody with the trial court, but made only an oral motion for such a change in open court.

After that, the hearing commenced, and testimony was heard for three days. During the course of the hearing, R.A.K., who is developmentally delayed, was questioned at length by the trial court and specifically was asked about distinguishing between the truth and a lie. While in a blue room, the trial judge asked R.A.K. whether it would be the truth or a lie to say the room was pink; R.A.K. was not able to discern whether that would be a true statement. H.R.K. had said during her testimony that Father had on two occasions tied her hands and legs to a pole and then sexually abused her. She had said that Father left her tied up, and that her brother D.R.K. came in the room and cut her loose. In his testimony, D.R.K. was initially reluctant to say that H.R.K.'s assertion was untrue, but later relented and indicated that the story of abuse was a "big tale his sister had made up."

After hearing all of the proof, the trial court again concluded that Father did not sexually abuse any of the children. The trial court found specifically that the children's allegations of sexual abuse were not credible. The trial court commented, "That's how serious this case is. These children are telling these lies."

The trial court was concerned that Mother and Grandparents were contributing to the children's creation of false stories of abuse by Father, and that Mother would not take the children to counseling as ordered by the court. Therefore, at the hearing, the trial court ordered that custody of the parties' children be temporarily changed from Mother to Father. Father was ordered to arrange immediate counseling for the children. The trial court prohibited Mother from exercising overnight visitation with the parties' children until she obtained housing of her own, separate from Grandparents. In addition, Grandparents were not permitted to be present during Mother's visitation. The trial court later clarified that it had based its ruling upon Father's "oral petition" requesting custody.

On August 8, 2002, thirteen days after the trial court's oral ruling was issued, Fa...