COMPTON (SHARON LYNN) VS. COMPTON (JASON CHRISTOPHER)Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEALS FROM BOONE CIRCUIT COURT
HONORABLE DAVID MELCHER, SPECIAL JUDGE
ACTION NO. 02-CI-00663
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BEFORE: ACREE AND CAPERTON, JUDGES; ROSENBLUM,1 SPECIAL
ROSENBLUM, SPECIAL JUDGE: Sharon Compton appeals the Findings of
Fact, Conclusions of Law, and Judgment entered September 13, 2006 by the Boone
Family Court granting Jason Compton supervised visitation with the parties’
Retired Judge Paul W. Rosenblum presiding as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5) (b) of the Kentucky Constitution.
daughter, K.C. In addition, Sharon Compton appeals the order entered July 6,
2007 overruling her motion for relief pursuant to Kentucky Civil Rule 60.02 (f) as
well as her motion to sanction the guardian ad litem and terminate his appointment
and supplement the record.
Sharon Compton married Jason Compton on August 11, 2001. On
February 10, 2002, the couple’s daughter, K.C., was born. The couple separated in
February 2002. A petition for dissolution of marriage was filed in May 2002. In
December 2002, the couple entered into a mediation agreement that established
joint custody and equal parenting time of their daughter. The decree of dissolution
of marriage was entered April 2003. Sharon also has another daughter, K.R., by a
On December 26, 2003, Jason went to Sharon’s home to pick up K.C.
for a scheduled visit. Sharon claims that Jason threw K.C. into his car and then
shoved and punched Sharon. Jason disagrees with Sharon’s version of the facts.
Jason claims that as he put K.C. into a car seat Sharon tried to pull K.C. out of the
car. Jason does, however, admit that a shoving match ensued between Sharon and
him. On January 5, 2004 a two year domestic violence order issued against Jason.
The same day, on December 26, 2003, Sharon took K.C. to St. Luke
Hospital where she claimed that K.C. had been sexually abused. A vaginal exam
was performed that indicated that K.C. had not been sexually abused. Then on
January 21, 2004, Sharon called K.C.’s pediatric physicians. She stated that after
K.C. resumed visitation with Jason her pupils were dilated and she acted lethargic.
On January 26, 2004, Sharon called the pediatricians’ office again and requested
that K.C. have tests to determine if she had been given any over the counter
medications such as Benadryl or cough medicine. On January 30, 2004, Rose
Hemsath, Sharon’s mother, went to the pediatricians’ office and requested
documentation that Sharon could use in a custody proceeding by specifically
requesting documentation concerning child abuse by Jason.
On February 4, 2004, Sharon called the pediatricians’ office to report
that K.C. was sexually abused by her father. The same day, Sharon and her mother
took K.C. to Children’s Hospital in Cincinnati, Ohio, where Sharon told physicians
that she was concerned that Jason had sexually abused K.C. She claimed that upon
returning from a visit with Jason two days earlier that K.C.’s genital area appeared
red. Dr. Cathy Gouldin performed vaginal and rectal examinations and concluded
that both areas appeared normal and was unable to determine if sexual abuse had
On February 29, 2004, Sharon and her mother again took K.C. to
Children’s Hospital with another complaint. They claimed that after visiting Jason
earlier that day K.C. returned home with redness in the diaper area. An
examination was performed and the treating physician found mild vulvar erythema
and diagnosed K.C. with vulvitis, otherwise known as diaper rash. Sharon was
told to treat the condition with sitz baths, air and desitin.
Due to the sexual abuse allegations against Jason, the court ordered a
custody evaluation to be performed by psychologist Dr. Edward J. Connor. Dr.
Connor’s report, dated June 1, 2004 concluded that Sharon’s accusations against
Jason appeared to be false. His report further stated that subjecting K.C. to
multiple vaginal examinations could be damaging to K.C. According to a
supplemental report prepared by Dr. Connor, dated September 1, 2004, K.C. had
undergone fourteen vaginal exams.
On December 14, 2004, Sharon filed a motion in Boone Family Court
seeking to terminate or restrict Jason’s visitation rights based upon an allegation of
sexual abuse upon K.C. The Court’s order of December 14, 2004, made no
findings of sexual abuse, but ordered that Jason’s visitation be supervised.
The court appointed another psychologist, Dr. Stuart Bassman, to
perform a forensic sex abuse assessment. Dr. Bassman’s report, dated June 20,
2005, stated that, “overall, we do not see K.R.’s credibility as firmly established.”
(T.R. 421). Dr. Bassman noted, “K.R. is reported as saying in one of her CAC
interviews that her mother told her to ‘tell the truth because if Mommy goes to jail
she’ll never go back and Jason could hurt me again.’” (T.R. 420) Dr. Bassman’s
report also noted that K.R., “ [i]s reported to have indicated on her CAC interview
that she knew certain alleged events had occurred ‘because my mommy told me’
and said ‘mamaw’ in response to a question about how she knew something else
occurred.” (T.R. 420). Dr. Bassman concluded, “so uncertain is the evidence for or
against the contention that Jason sexually abused the children that we have
determined that we cannot fairly conclude that the children were or were not
victims of sexual abuse, nor that Jason was a perpetrator of sexual abuse.” (T.R.
On November 23, 2005, Sharon took K.C. to her pediatricians’ office
and once again alleged that K.C. had been sexually abused by her father. The
pediatricians’ report stated there was suspected sexual abuse. The report further
stated that Sharon was directed to take K.C. to Children’s Hospital or the
Mayerson Center for Safe and Healthy Children (Mayerson Center). Sharon
incorrectly reported to the court that the pediatricians’ office confirmed sexual
abuse. Further, she failed to report that examinations conducted on November 23,
2005, at both Children’s Hospital and the Mayerson Center for Safe and Healthy
Children resulted in normal findings.
Eight days later, on December 1, 2005, Sharon took K.C. to
Children’s Hospital and the Mayerson Center again. Sharon claimed that she was
still concerned about rectal bruises and requested another exam. Children’s
Hospital refused Sharon’s request noting that “[i]n light of normal medical exam
last week and no concerns of an abusive incident in the meantime, no exam was
performed today” (398-99).
By December 19, 2005, Sharon filed two criminal complaints against
Jason alleging sexual abuse of K.C. Both complaints were dismissed. Sharon had
also contacted the state police and claimed that Jason sexually abused both her
daughters, K.R. and K.C. The state police investigated Sharon’s claims and a
special prosecutor was appointed to the case. After a review of the state police
investigation, the special prosecutor concluded that the case did not merit
Since 2003, Sharon subjected K.C. to over sixteen vaginal
examinations. Although none of the examinations conclusively indicated that K.C.
was sexually abused, Sharon continuously claims K.C. told her that Jason hurt her
and that she was afraid of him. Sharon claims that both K.R. and K.C. exhibited
behavior indicative of sexual abuse. She claims that K.R. acts out sexually by
“humping and masturbating”. Sharon also claims that K.C. said that Jason “hurt
her pee pee”, inserted her hand into her underwear and rubbed her genitals.
This series of allegations are not the only accusations of sexual abuse
made by Sharon. In 2000, Sharon took K.R. to the St. Luke Hospital Emergency
Room claiming that K.R.’s biological father, Rick Rodriquez, sexually abused her.
At the time, Sharon and Rick were engaged in a custody dispute over K.R. Then in
2001, Sharon took K.R. to St. Luke Hospital again and complained that K.R.’s
perineum was red and alleged that she had been sexually abused by an unnamed
older male cousin. Dr. Robert A. Hudepohl, the emergency room physician, did
not find any indication that K.R. had been sexually abused and recommended that
K.R. abstain from bubble baths.
Sharon contends that the trial court erred by granting Jason supervised
visitation. She contends that the trial court should only have granted visitation to
Jason contingent upon his completion of a state-certified domestic violence
perpetrator treatment program and a sex offender treatment program and upon a
finding that any visitation would be in K.C.’s best interest and that such visitation
be therapeutically supervised. She further contends that the trial court erred by
denying her motion for relief from judgment pursuant to Kentucky Civil Rule
60.02 (f) as well as her motion to sanction the guardian ad litem and terminate his
appointment and supplement the record.
We first address Sharon’s claim pertaining to the trial court’s grant of
supervised visitation. Circuit Courts may modify visitation if the court finds that
visitation would seriously endanger the child’s physical, mental or emotional
health. KRS2 403.320 (1). Further, “upon request of either party, the Court shall
issue orders which are specific as to frequency, timing, duration, conditions, and
method of scheduling visitation and which reflect the development age of the
child.” KRS 403.320 (1).
If a court’s decision as to visitation is clearly erroneous in light of
the facts we must reverse the decision. Drury v. Drury 32 S.W. 3d 521 (Ky. App.
2000). “[T]his Court will only reverse a trial court's determinations as to visitation
if they constitute a manifest abuse of discretion, or were clearly erroneous in light
of the facts and circumstances of the case.” Id. at 525, quoting Wilhelm v. Wilhelm,
Ky., 504 S.W.2d 699, 700 (1973). A trial court has not abused its discretion unless
its decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Sexton v. Sexton, 125 S.W. 3d 258, 272 (Ky.App. 2004).
Kentucky Revised Statutes.
A review of the record reflects that the majority of evidence indicative
of sexual abuse was presented by the testimonies of Sharon and her family
members. Testimonial evidence presented by Jason and his family members seems
to disprove the abuse allegations. Here, the trial court reasoned that neither party
proved that sexual abuse did or did not occur. The court noted that although none
of the physical examinations indicated sexual abuse, physical evidence of sexual
abuse does not always exist. The trial court further noted, “There has been no
testimony of any expert to indicate that K.C. has been traumatized or is suffering
psychological difficulties as a result of conduct allegedly committed by Father.”
(Order, T.R. 677). The trial court found K.R.’s statements, “Mommy told me,” and
“Mammaw told me”, to be very disturbing. The court concluded, “Both Parties
presented evidence that concerns this Court. It is a tragedy to allow a child contact
with a sexual abuser. It is also a tragedy to deny a Father meaningful contact with
his child if he is not a sexual abuser”. (Order, T.R. 680).
Our review of the record indicates that there is substantial evidence in
the record to support the trial court’s findings. Furthermore, we do not believe that
the trial court’s determination granting Jason supervised visitation constitutes a
manifest abuse of discretion. Clearly the trial court was faced with a most difficult
case and the mandated supervised visitation is a reasonable outcome designed to
protect K.C.’s welfare.
Sharon also alleges that the trial court erred when it refused to admit
testimony from Sharon, her mother and brother about disclosures made by K.R.
and K.C. concerning physical and sexual abuse by Jason. Sharon claims that the
court erred in ruling that the statements were hearsay under KRE3 803 and that the
statements do not fall within the KRE 803 exceptions (1), (2), or (3). Although
such statements may fall within those exceptions, a thorough review of this issue is
not possible because the videotape containing the relevant avowal testimony was
not submitted for this court’s review. Kentucky Courts have consistently held that
an appellant has a duty to insure that the record on appeal is complete.
Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 603
(Ky.1968). To the extent the record is incomplete, we must presume the omitted
portion of the record supports the trial court's order. Id. at 603.
Next, Sharon claims that the trial court erred by denying her CR4
60.02 (f) motion for relief as well as her motion to sanction the guardian ad litem
and terminate his appointment and supplement the record. Specifically, Sharon
claims that the court appointed guardian ad litem, Honorable Thomas Willenborg,
labored under a conflict of interest because of his representation of Dr. Connor in
Dr. Connor’s own divorce case. Sharon contends that Mr. Willenborg valued his
relationship with Dr. Connor more than the welfare of his current client, K.C.
Sharon also argues that Mr. Willenborg failed to disclose this relationship during
the pendency of his guardian ad litem representation.
We must review a court’s decision on a CR 60.02 motion under an
abuse of discretion standard of review. Bethlehem Minerals Co. v. Church and
Kentucky Rules of Evidence.
Kentucky Rules of Civil Procedure.
Mullins, Corp., 887 S.W.2d 327, 329 (Ky. 1994). “Relief under CR 60.02 (f) is
available where a clear showing of extraordinary and compelling inequities is
made.” Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). When making this
determination, courts must consider two factors; “(1) whether the moving party
had a fair opportunity to present his claim at the trial on the merits, and (2) whether
the granting of CR 60.02 (f) relief would be inequitable to other parties.”
Bethlehem, supra; Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957).
The circuit court order denying Sharon’s CR 60.02 motion, entered
July 6, 2007, noted that the guardian ad litem’s sole concern was the best interest
of K.C. The court found that the guardian ad litem complied with all applicable
rules and regulations associated with his duties. We note that no authority in
Kentucky exists for the appointment of a guardian ad litem in a child custody case.
It is also significant that Dr. Connor was not being represented by Mr. Willenborg
at the time of the trial herein on March 8-10, 2006. The trial court’s determination
that, “no reason of an extraordinary nature justifying relief under CR 60.02 (f) has
been established” does not constitute an abuse of discretion. Nor does the trial
court’s order with respect to the motion filed June 28, 2007 constitute an abuse of
Accordingly we affirm the trial court’s Findings of Fact, Conclusions
of Law, and Judgment entered September 13, 2006 as well as the order entered
July 6, 2007.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert W. Carran