Odom v. Odom

Decision Date05 December 2001
Docket NumberM1999-02811-COA-R3-CV
CourtTennessee Court of Appeals
PartiesROBERT VAUGHN ODOM v. MARY JO ODOM

Appeal from the Chancery Court for Dickson County, No. 3564-94, Allen W. Wallace, Judge

This appeal involves a bitter custody dispute over three children between the ages of nine and fourteen. During the divorce proceeding in the Chancery Court for Dickson County, the parties agreed that the mother would have custody of the children and also agreed on visitation arrangements that accommodated the mother's planned move to another state. Several months after the entry of the divorce decree, the father petitioned to change custody and to hold the mother in contempt for interfering with his relationship with the children. During the ensuing three years, the parties traded allegations of sexual and physical abuse of the children and other misconduct. Following a bench trial in December 1998, the trial court found that there had been a material change in the children's circumstances and granted the father custody of the children. On this appeal, the mother asserts that she was denied due process by the trial court's refusal to require the parties and their children to undergo a psychological examination and that the trial court unlawfully delegated its judicial authority to a psychologist who had been counseling the children. We have determined that the mother received an essentially fair hearing on this custody dispute and, therefore, affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Mary Jo Odom.

Karla C. Hewitt, Nashville, Tennessee, for the appellee, Robert Vaughn Odom.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which ALAN E. HIGHERS and DAVID R. FARMER, JJ., joined.

I.

Robert Vaughn Odom and Mary Jo Fielder were married in October 1986 in Georgia, less than one week before Mr. Odom's twenty-fourth birthday. Ms. Odom was already twenty-four years old and had three-year-old and five-year-old sons from a prior marriage. Between 1987 and 1992, the parties had two sons and a daughter of their own. Mr. Odom joined the Dickson Police Department in 1993, and Ms. Odom worked as a part-time licensed practical nurse.

The parties separated in October 1994. On November 4, 1994, Mr. Odom filed a petition for divorce in the Chancery Court for Dickson County. Ms. Odom counterclaimed for divorce and sought custody of the parties' three children pending the trial. On May 24, 1995, the parties signed a marital dissolution agreement that, among other things, granted sole custody of the children to Ms. Odom and directed Mr. Odom to pay $728 per month in child support. Mr. Odom's visitation rights were established to accommodate Ms. Odom's planned move to West Virginia. On May 26, 1995, the trial court filed a final divorce decree incorporating the parties' marital dissolution agreement.

Ms. Odom and the parties' three children moved to Parkersburg, West Virginia shortly after the entry of the final divorce decree. Mr. Odom soon married Andrea Biele, a nurse with a six-year-old son. Ms. Biele and her former husband had been friends of the parties while they were married and were divorced approximately four months before the parties obtained their divorce.

Less than three months after the entry of the final divorce decree, Mr. Odom petitioned the trial court to change custody and to hold Ms. Odom in contempt for obstructing his telephone calls to his children and for refusing to pay her share of his visitation travel expenses. He also alleged that Ms. Odom, contrary to the marital dissolution agreement, "repeatedly talked negatively about him to the children" in an effort to destroy his relationship with the children. Following a hearing in November 1995, the trial court entered an order on January 3, 1996, denying Mr. Odom's petition.

While this matter was pending, the first of several serious disputes between the parties occurred. On December 31, 1995, after the three children returned to West Virginia from Christmas visitation with Mr. Odom, Ms. Odom and her aunt discovered a suspicious bruise on her six-year-old daughter's chest. On January 2, 1996, at the suggestion of the West Virginia child protective service authorities, Ms. Odom had her daughter examined at a hospital emergency room. Ms. Odom informed the hospital personnel that she was concerned about the bruise because Mr. Odom was "addicted to pornography." 1 Ms. Odom also informed Mr. Odom that she intended to commence judicial proceedings in West Virginia to prevent him from continuing to visit the children.

In February 1996, Mr. Odom, Andrea Odom, and her son began family counseling with a licensed psychologist practicing in Clarksville, Tennessee. Mr. Odom and his new wife were experiencing marital conflicts, and Mr. Odom felt "stressed out" after his children returned to West Virginia and by Ms. Odom's allegations that he had sexually abused their daughter. On February 7, 1996, Mr. Odom filed a second petition to modify custody and to hold Ms. Odom in contempt. He asserted that Ms. Odom was continuing to obstruct telephone visitation with his children and that he was fearful that Ms. Odom was "planning to have him arrested on fictitious or manufactured charges when he returns to West Virginia for his visitation." Approximately one week later, Ms. Odom commenced proceedings in West Virginia to stop Mr. Odom's visitation. Following a conversation with the West Virginia judge assigned to the case, the trial court declined to relinquish jurisdiction to the West Virginia courts. As far as we can tell, the West Virginia proceeding ended at this point without a definitive conclusion.

In September or October 1997, Ms. Odom and the parties three children moved to Meridian, Idaho. After Ms. Odom declined to permit him to exercise his scheduled October visitation, Mr. Odom filed an amended petition asserting, in addition to the allegations in his February 1997 petition, that Ms. Odom had moved to Idaho "to deter or defeat" his visitation rights.

The parties' three children traveled to Tennessee for Christmas visitation in December 1997 and returned to Idaho on January 3, 1998. The following day, Mr. Odom became anxious about his children and had an argument with his wife. When his wife stated that she was going to her father's house, Mr. Odom grabbed his service revolver and began waiving it around to convince her not to leave the house. Mr. Odom never fired the weapon and eventually unloaded it and threw it on the bed. Mr. Odom's wife summoned the police, and by the time they arrived, Mr. Odom had calmed down. He was examined at the hospital following the incident, and he and his wife had a session with their family therapist on January 5, 1998. Mr. Odom took medication for his anxiety for several days and returned to duty following two weeks of leave.

During the children's visitation in June 1998, Mr. Odom and his wife decided to include them in their family counseling sessions because they were concerned about the children's behavior. They specifically asked the psychologist to interview Mr. Odom's nine-year-old daughter separately. During her first two interviews, the child told the psychologist that her fifteen-year-old half-brother had been sexually abusing her and that he, in fact, was the one who had caused the bruise on her chest that had precipitated the sexual abuse investigation in 1996. The girl's two brothers also ascribed conduct to the same half-brother that the psychologist concluded was physical and sexual abuse. The psychologist reported her findings to Mr. Odom and to the authorities in Tennessee and Idaho.

On August 7, 1998, Mr. Odom petitioned for a restraining order to prevent Ms. Odom (now Kiesig) 2 from removing the children from his custody. He supported this petition with an affidavit from the family's psychologist detailing the children's accounts of their half-brother's sexual and physical abuse. Ms. Kiesig opposed Mr. Odom's petition, stating that it was "totally false." Following a hearing, the trial court entered an order on September 18, 1998, restraining Ms. Kiesig from removing the children from Mr. Odom's custody and granting her supervised visitation.

In October 1998, Ms. Kiesig requested the trial court to appoint an independent psychiatrist to examine the parties and their three children. She also requested an emergency hearing in chambers for the purpose of providing the trial court information indicating that the children were in danger as long as they were in Mr. Odom's custody. 3 Following a November 2, 1998 hearing, the trial court declined to order an independent psychiatric examination of the parties or their children or to hold an emergency hearing regarding temporary custody of the children. However, the trial court granted Ms. Kiesig's request for an early hearing and set the trial of all pending issues for December 3-4, 1998. 4

The trial court handed down its ruling from the bench on December 4, 1998, following a two-day hearing. After observing that the children "have been through a lot with their parents fighting like they are," the court found that the parties' daughter had been sexually abused by her older half-brother both in West Virginia and in Idaho. Accordingly, the trial court concluded that there had been a material change in the children's circumstances and that the children would be "in danger" if they returned to Idaho to live with their half-brother. The trial court also described Ms. Kiesig as "vindictive" and "manipulative" and concluded that she had even attempted to solicit perjured testimony against Mr. Odom. 5 After concluding that Ms. Kiesig was untruthful, the court concluded that Ms. Kiesig had moved first to West Virginia and then to Idaho to frustrate Mr. Odom's efforts to visit...

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