Kirk v. Kirk, 45A03-0103-CV-80.

• Court: Indiana Appellate Court
• Writing for the Court: BROOK.
• Citation: Kirk v. Kirk, 759 N.E.2d 265 (Ind. App. 2001)
• Decision Date: 05 December 2001
• Docket Number: No. 45A03-0103-CV-80.,45A03-0103-CV-80.
• Parties: Garry L. KIRK, Appellant-Petitioner, v. Kathy Mae KIRK, Appellee-Respondent.

759 N.E.2d 265

Garry L. KIRK, Appellant-Petitioner, v. Kathy Mae KIRK, Appellee-Respondent.

No. 45A03-0103-CV-80.

Court of Appeals of Indiana.

December 5, 2001.

Rehearing Denied January 9, 2002.

Gregory S. Reising, Gary, Indiana, Attorney for Appellant.

Jason L. Horn, Munster, Indiana, Attorney for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-petitioner Garry L. Kirk ("Father") appeals the trial court's denial of his petition for modification of custody of and visitation with his daughter G.L.K. We reverse and remand.

Issues

Father raises one issue on appeal, which we restate as the following two:

I. whether the trial court abused its discretion in denying Father's petition for modification of custody; and

II. whether the trial court abused its discretion in denying Father's petition for modification of visitation.

Facts and Procedural History¹

The marriage of Father and appellee-respondent Kathy Mae Kirk ("Mother") was dissolved on March 31, 1992. Mother was awarded legal and physical custody of G.L.K., who was born in 1989. At first, Father exercised unsupervised visitation with G.L.K. every other weekend; at Mother's suggestion, this developed into visitation where all three were present. Until mid 1995, Father maintained visitation in this manner every other weekend for approximately seven hours on either Saturday or Sunday. In September 1995, Mother accused him of sexually molesting G.L.K. and refused to allow further visitation. In October 1995, Father petitioned the court to hold Mother in contempt for withholding visitation, and the following month, Mother petitioned for modification of visitation, citing the alleged molestation. In February 1996, Father filed his first petition for change of custody and modification of visitation.

Over the next five years, the trial court repeatedly attempted to establish regular visitation between Father and G.L.K., but all attempts were unsuccessful. The court appointed a total of seven experts and two guardians ad litem ("GALs"), received two more petitions from Father, and held Mother in contempt three times. All experts and GALs who filed reports with the court expressed concern over Mother's and G.L.K.'s mental health and recommended that the court consider a change in custody if Mother did not cooperate with attempts at reunification. Significantly, none of the experts felt that there was any credible evidence that the alleged molestation had actually taken place, and no criminal charges have ever been brought against Father. Finally, on January 16, 2001, the court ruled on all issues, denying Father's petition for change of custody, ordering family therapy for all parties, and prescribing new visitation guidelines. Father was to have visitation supervised by Mother's parents once a week for three hours, and after eight weeks was to have weekly four-hour unsupervised visitations in a public place. Father now appeals.

Discussion and Decision

I. Custody Modification

Father alleges that the trial court abused its discretion in denying his petition for modification of custody. Because stability and permanence are considered best for the child, when a non-custodial party petitions for a modification in custody, the burden is on that party to demonstrate that the existing custody order is unreasonable. See Fields v. Fields, 749 N.E.2d 100, 108 (Ind.Ct.App.2001),trans. denied. Indiana Code Section 31-17-2-21 provides that a court may not modify a custody order unless the petitioner shows that (1) the modification would be in the best interests of the child, and that (2) a substantial change has occurred in one or more of the following factors a court must consider under Indiana Code Section 31-17-2-8:

(1) The age and sex of the child.

(2) The wishes of the child's parent or parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parent or parents;

(B) the child's sibling; and

(C) any other person who may significantly affect the child's best interests.

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

In its consideration of the statutory factors, the trial court's inquiry is limited to changes that have occurred since the last custody decree. See Hanson v. Spolnik, 685 N.E.2d 71, 77 (Ind.Ct.App.1997), trans. denied.

The modification of custody lies within the sound discretion of the court, and we will reverse only upon a showing of manifest abuse of this discretion. See Fields, 749 N.E.2d at 107-08. We find such an abuse when the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. at 108. We will neither judge the credibility of witnesses nor reweigh the evidence. Id. Neither party requested, and the trial court did not enter, special findings in this case; therefore we review under the general judgment standard. See Shelby Eng'g Co. v. Action Steel Supply, Inc., 707 N.E.2d 1026, 1027 (Ind.Ct.App.1999). Under this standard, we affirm if the judgment can be sustained on any legal theory consistent with the evidence. See id.

Father claims that the court's ruling is contrary to all evidence and expert advice, save for the opinions of Mother and G.L.K., and that the court therefore abused its discretion in denying his petition. We must examine the record in detail to evaluate this claim.

In November 1996, clinical psychologist Dr. Marguerite P. Rebesco ("Rebesco") recommended that the court order professionally directed reunification efforts and that if such reunification could not reasonably occur within four months, "an alternate residential setting that would promote [G.L.K.'s] health may need to be considered." (Emphasis added.) This recommendation was seconded one month later in a report by the GAL, attorney Cheryl Lynn Moultrie ("Moultrie"), who stated that reunification efforts utilizing professional guidance by a qualified therapist should commence immediately and that if reunification "cannot reasonably occur within four months, an alternate residential setting for [G.L.K.] shall be determined by the court to promote [G.L.K.'s] health." (Emphasis added.) Four months later, Moultrie reported that there had been no progress since her earlier report and again recommended a custodial evaluation to determine Mother's fitness to retain custody of G.L.K. She also opined that "[G.L.K.'s] belief of the allegations [of molestation] is directly related and substantially caused by the pathology between [Mother] and [G.L.K.]." (Emphasis added.)

In July 1997, Moultrie filed an additional report with the court. She noted the emotional distancing between G.L.K. and Father, stating, "Every indication suggests that the mother has continuously and persuasively supported and orchestrated this distancing.... The mother has systematically refused to cooperate with a therapeutic reuniting of child with father." (Emphasis added.) Moultrie again recommended that the court oversee the therapeutic reunification of Father and G.L.K.

Six months later, clinical psychologist Dr. Ronald Ruff ("Ruff") reported to the court:

[R]eunification between [Father] and [G.L.K.] will be extremely difficult due to the dysfunctional, highly symbiotic, codependency which exists between [Mother and G.L.K.].... [Mother's] non-inclusion of [Father] and total desire for her daughter to deny and disown her father's existence and presence in her life is extremely emotionally unhealthy. It is my opinion that this psychopathology relates to [Mother's] dysfunctional nature with respect to wanting to maintain almost total control of her daughter's life ....

(Emphasis added.) Ruff recommended therapeutic reunification efforts and "that serious consideration be given to removing [G.L.K.] to a neutral residential placement which would allow her the opportunity to develop her sense of identity, autonomy, and to effect a more positive relationship with her father." After issuing the above report, Ruff commenced therapeutic reunification sessions with G.L.K. and Father. In April 1998, Ruff diagnosed G.L.K. with parental alienation syndrome and again recommended "that the court consider removing [G.L.K.] to a more neutral setting so that she can have the opportunity to form her own, independent views of her father without any potential interference or alienation."

In July 1998, clinical psychologist Douglas W. Caruana ("Caruana"), submitted his report to the court. Caruana noted that "[d]ata generated in this evaluation is strikingly similar to the previous professional reports" and that

[t]he recommendations offered by Dr. Rebesco in her November 27, 1996 report are extremely accurate, concise and should be given the strongest consideration.... These recommendations assume compliance by both [Father] and [Mother]. In particular, [Mother] will need to demonstrate the necessary willingness to resolve her pathological contribution in this case, while supporting her daughter with a healthy and accurate effort. Without this, she should not be allowed to continue in the role of custodial parent.

In February 1999, Caruana advised the court of Mother's refusal to cooperate in reunification sessions and advised that "[i]f this lack of cooperation is substantiated, it... indicates a strong need for judicial intervention as soon as possible to resolve this impasse. I believe that continued obstruction of the healing process by any of the parties involved is detrimental to the well being of the minor child in this case, and must be dealt with directly." (Emphasis added.)

In March 1998, Carole Dougherty, ACSW/LCSW, ("Dougherty") appointed by the court to begin therapeutic reunification sessions, reported Mother's total lack of cooperation. She summarized the previous professional...