TOBI DAUENHAUER v. DOUGLAS DAUENHAUER
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001842-MR
TOBI DAUENHAUER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY COREY, JUDGE
ACTION NO. 93-FD-001714
v.
DOUGLAS DAUENHAUER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND TACKETT, JUDGES.
BARBER, JUDGE:
The Appellant, Tobi Dauenhauer (“Tobi”), contends
that the trial court abused its discretion in modifying the
parties’ joint custody arrangement and in “terminating”
visitation with her two sons pending her completion of a therapy
program.
Finding no error, we affirm.
Tobi and the Appellee, Doug Dauenhauer (“Doug”), were
married on September 29, 1988.
1995.
They were divorced on July 6,
The parties have two minor children, Michael and Matthew.
Michael is Tobi’s natural son and Doug’s adoptive son born on May
1, 1987.
Doug adopted Michael when he was 22 months old.
Matthew is the parties’ natural son born on December 27, 1988.
On July 6, 1995, the trial court entered a judgment awarding the
parties joint custody with the children residing primarily with
Doug during the regular school year and with Tobi during the
summer.
By order entered November 3, 1995, the visitation
provisions in the judgment were somewhat modified.
On June 3, 1999, Doug filed a motion seeking sole
custody and requesting that Tobi’s visitation be limited or
supervised.
In his supporting affidavit, Doug outlined a series
of events which led to his filing the subject motion.
Doug
alleged that, after he filed a motion to hold Tobi in contempt
for failure to pay child support, she retaliated by telling their
son, Michael, that Doug was not his father.
On February 27, 1997, the court entered an order
restraining Tobi from allowing Michael to have contact with his
biological family.
On December 8, 1997, a commissioner’s hearing
was held on a motion to hold Tobi in contempt for facilitating
visitation with the child’s biological father in contravention of
Court order, failure to provide visitation and failure to make
child support payments.
The Domestic Relations Commissioner
concluded:
A history of this case indicates there is not
just one isolated incident of refusal to
adhere to the Court’s order, but there have
been no less than four instances, beginning
with the contempt found by Judge Corey in
1996. Thereafter, Tobi has violated no less
than three Court orders, those including
contact with the child’s biological father,
visitation order that she return the child by
7:00 p.m. and additional child support
arrearages of over $3,000.00. Your
Commissioner recommends that she be found in
contempt of Court.
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By order entered March 3, 1998, the trial court
confirmed the Commissioner’s report and order except for an award
of attorney’s fees to Doug.
Doug alleged that, following entry of that order, Tobi
embarked on a “a steady campaign to interfere with his
relationship with the children.”
Doug maintained that Tobi
suddenly began making regular visits to school which were
disruptive and had a negative impact upon the children.
Doug
also alleged that, throughout the remainder of the 1997-98 school
year, Tobi began “beating on his door, peering through windows,
and making numerous telephone calls.”
Doug stated that, as a
result of Tobi’s actions, his current wife, Mary, filed a
criminal complaint against Tobi which resulted in a restraining
order being issued in an attempt to keep Tobi away from Doug’s
residence.
Doug also claimed that as a result of Tobi’s
“scheming” an action had been initiated by the Cabinet for
Children and Families over allegations that he had abused the
children.
These allegations led to the court appointing Terry
Fontenot as a counselor for the children and ordering the parties
to cooperate with him.
On March 14 and April 11, 2000, a hearing was held on
Doug’s motion for sole custody and to limit or require
supervision of Tobi’s visitation.
Several witnesses testified
including Paula Berry, Ph.D., the court-appointed custody
evaluator; Terry Fontenot, the children’s counselor and Ed
Vaughn, LCSW,
Tobi’s counselor.
On June 30, 2000, the trial
court entered a judgment granting Doug sole custody of the two
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minor children, Matthew and Michael.
The trial court ordered
that Tobi “shall be entitled to visitation with the children from
Friday at 6:00 p.m. until Sunday at 6:00 p.m. on alternating
weekends once . . . [she] begins cooperating with the treatment
plan proposed by the children’s therapist, Terry Fontenot, and
Mr. Fontenot recommends resumption of Respondent’s regular
visitation with the children.”
The court further ordered that
the “parties shall cooperate with any limited supervised
visitation plan recommended by Mr. Fontenot as a part of the
children’s therapy.”
On appeal, Tobi argues that the trial court abused its
discretion in modifying the parties’ joint custody arrangement
and in awarding sole custody to Doug.
Tobi attempts to persuade
us that the trial court’s decision is based upon a “clearly
erroneous” finding, -- “that the children’s present environment
when under Respondent’s [Tobi’s] influence seriously endangers
their mental and emotional health because of the Respondent’s
continuing efforts to undermine the Petitioner’s [Doug’s]
parental authority and to alienate these children from their
father.”
Tobi maintains that the facts presented at trial, as
set forth in her statement of case, do not support the court’s
finding.
We disagree.
It is apparent that the evidence was in conflict.
Tobi’s omission of any reference to Terry Fontenot’s testimony in
her “statement of the case” speaks for itself.
Instead of
focusing on the issue that she raised Tobi devotes her argument
on appeal to telling us what Doug did or didn’t do as
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justification for her own conduct.
fact.
We are not the finder of
This Court is bound by the "clearly erroneous" standard of
review found in CR 52.
We may not disturb the lower court’s
findings, if they are supported by substantial evidence.
Poe v.
Poe, Ky. App., 711 S.W.2d 849 (1986).
The record reflects that Paula Berry, Ph.D., a courtappointed psychologist reported being “troubled by the parental
alienation Tobi Dauenhauer perpetuates by her behavior -- the
most obvious defining action being her introduction of Michael to
his biological father.”
Dr. Berry stated that it would be “more
honest” to recommend Doug for sole custody “as opposed to the
present joint custody arrangement which appears to be ‘in name
only.’”
Dr. Berry believes that Tobi’s emotionality,
impulsivity, and lack of insight rendered her poorly equipped to
engage in healthy joint-decision making with Doug; further, Dr.
Berry was reluctant to recommend greater contact between Tobi and
her sons due to Tobi’s undermining of the children’s relationship
with Doug.
The record also reflects that Terry Fontenot believed
that there was emotional abuse by one parent -- Tobi.
Mr.
Fontenot testified that he was against keeping the custody
arrangements as they are now.
He stated that the boys continue
to be damaged by Tobi, and he would like to see an end to joint
custody with sole custody awarded to Doug.
Clearly, the trial
court’s finding has a substantial evidentiary foundation.
trial court did not abuse its discretion in modifying the
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The
parties’ custody arrangement; therefore, the award of sole
custody to Doug is affirmed.
Tobi also contends that the trial court “essentially
terminated” her relationship with her children pending her
compliance with or completion of a treatment plan that was
“wholly undefined” in the trial court’s judgment.
The trial
court ordered that Tobi shall be entitled to visitation from
Friday at 6:00 p.m until Sunday at 6:00 p.m. on alternating
weekends, once she begins cooperating with the treatment plan
proposed by the children’s therapist, Terry Fontenot, and upon
Mr. Fontenot’s recommendation to resume Tobi’s regular visitation
with the children.
The court also directed the parties to
cooperate with any limited supervised visitation plan recommended
by Mr. Fontenot as a part of the children’s therapy.
Mr. Fontenot’s proposal is discussed by the
trial court at page 6 of the judgment:
He [Fontenot] would like to have Respondent
[Tobi] work with him and the children in a
family counseling session in addition to
participating in her own counseling [with Ed
Vaughn]. He notes that Respondent needs to
apologize to the children for coloring things
and poisoning them against their own father.
He believes that the children need to hear a
clear statement from Respondent that she is
taking responsibility for her actions.
Tobi would have us believe that the trial court’s
“result” is contrary to the recommendation of the “court’s own
expert” based upon one sentence selected from Dr. Berry’s report.
Tobi
omits the fact that Dr. Berry stated “it would be more
honest” to recommend Doug as the sole custodian and that she was
reluctant to recommend greater contact between Tobi and her sons
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due to Tobi’s undermining of their relationships with their
father.
Dr. Berry testified that she had spoken with Mr.
Fontenot.
Dr. Berry concurs with his recommendation of 6-8
sessions with Tobi and her sons directed at decreasing parental
alienation.
Dr. Berry believes that Tobi needs to recognize that
the children should not participate in making adult decisions
such as those involving money.
Dr. Berry testified that she and
Mr. Fontenot agreed that the 6-8 sessions of counseling prior to
resuming Tobi’s visitation with the boys would be a good
recommendation.
Dr. Berry believes that at the end of those
sessions Mr. Fontenot would be in the better position to
recommend whether the resumption of visitation should be
incremental or all at once.
Matters involving visitation rights are held to be
peculiarly within the discretion of the trial court.
Drury, Ky. App., 32 S.W.3d 521 (2000).
Drury v.
The trial court’s order
regarding visitation is based upon the recommendations of the
children’s therapist and the court-appointed psychologist.
There is no abuse of discretion.
The judgment of the Jefferson
Family Court entered June 30, 2000 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Mark Mulloy
Mulloy & Mulloy
Louisville, Kentucky
J. Russell Lloyd
Mobley & Lloyd
Louisville, Kentucky
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