C.J.L. v. M.W.B.

879 So. 2d 1169
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 28, 2003
Docket2010703
StatusPublished
Cited by22 cases

This text of 879 So. 2d 1169 (C.J.L. v. M.W.B.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.J.L. v. M.W.B., 879 So. 2d 1169 (Ala. Ct. App. 2003).

Opinions

CRAWLEY, Judge.

C.J.L. (“the mother”) and M.W.B. (“the father”) were divorced in 1999 in Georgia. The divorce judgment awarded the parties joint custody of their three minor children, M.E.B., C.N.B., and D.C.B. The mother moved with the children to Montgomery, Alabama; the father, who is in the United States Army, resides on base at Ft. Ben-ning, Georgia. Once the mother moved to Montgomery, the parties had several problems with the original custody provisions, which awarded the father custodial privileges ■ from Thursday evening through Monday morning. The Georgia- court modified the judgment to change the father’s custodial periods in an effort to better serve the interests of the children and the parties. The parties continued to share custody of the children.

In March 2000, the mother filed in the Montgomery Circuit Court a petition to modify custody. The father contested jurisdiction, and the mother’s petition was ultimately dismissed. In May 2001, the father filed a petition in the Montgomery Circuit Court seeking to have the wife held in contempt for denying him visitation with his children.1 The mother answered, coun-terpetitioned to hold the' father in contempt, and petitioned for a modification of custody and a suspension of the father’s visitation privileges. The father answered the mother’s petitions and also petitioned for a modification of custody. The trial court appointed a guardian ad litem for the children and appointed Dr. Karl Kirkland, a psychologist, to perform a custody evaluation to aid the court in determining custo-' dy.

After a trial, the court modified custody, awarding the father sole physical custody of the parties’ three children. The mother appeals. She first argues that.the trial court erred by admitting and relying on the testimony of Dr. Kirkland because he, according to the mother, based his recommendation on his diagnosis of parental alienation syndrome (“PAS”), which the mother contends is not widely accepted as a syndrome or diagnosis in the psychological community and therefore does not pass [1172]*1172the “general acceptance” test for the admissibility of scientific evidence under Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).2 She also argues that the trial court did not have sufficient evidence from which to find that the children were “alienated” from their father and that the trial court’s modification of custody was contrary to established law. Finally, she argues that the trial court erred by “unduly” relying on a report by the guardian ad litem, which was submitted before trial.

I. A Brief History of Events Surrounding the Original Divorce

To better understand the present case, a brief discussion of certain aspects of the history of the parties’ divorce is necessary. Before the parties separated, in September 1997, the mother told the father that M.E.B., who was four years old at the time, and C.N.B., who was not yet three years old, had indicated that their paternal grandfather, T.D.B., had sexually molested them while their paternal grandmother, J.B., watched. When the mother told the father of these allegations,3 the father, who was on a temporary assignment at the time, urged the mother to take the children to the base hospital at Ft. Gordon, Georgia, where the father was stationed at the time, to have them examined. The mother had the children examined by Dr. Janus Butcher at Eisenhower Army Medical Center on September 23, 1997, only 3 days after the children first made the allegations. Dr. Butcher found no physical evidence of sexual abuse. The mother, however, was not satisfied with Dr. Butcher’s opinion that no abuse had occurred,4 and she took the children to see Dr. Sara O’Heron on October 16, 1997, over 25 days after the alleged incidents of abuse occurred. Dr. O’Heron saw the children again on March 31, 1998. Dr. O’Heron opined that sexual abuse had occurred.

Based on Dr. O’Heron’s opinion, the paternal grandparents were arrested and, subsequently, indicted on several charges. For some reason not clear in the current record, the indictments were set aside and the case was resubmitted to another grand jury. The second grand jury “no-billed” the charges. The father strongly supported his parents through the resolution of the allegations against them, further damaging the parties’ already disintegrating marriage and resulting, ultimately, in a bitter divorce.

During the months following the first allegation of sexual abuse and during the divorce process, the children were examined by two psychologists, Dr. Greg Swanson and Dr. Joseph Frey. Both psychologists opined that the children had likely been sexually abused by their grandfather. However, Dr. Frey, who prepared a custody evaluation for the Georgia court, commented that the mother’s behavior, includ[1173]*1173ing “generalizing these charges onto her husband” and “her excessive reliance [on] and indulgence in what her children tell her,” had fueled inappropriate conduct by her during the pendency of the divorce proceedings. He specifically noted her zeal to have the children’s contacts with the father supervised and limited and indicated that the mother wanted the “children away from their father at any cost.” He recommended the shared custody arrangement incorporated into the Georgia court’s divorce judgment, opining that the mother “is incapable of allowing [the children] to form an appropriate relationship and attachment with their father, who has not demonstrated any defined acts of sexual or physical abuse.”

II. The Events Giving Rise to and Underlying the Present Case

The father’s contempt petition in the present case was prompted by the mother’s unilateral decision to deny the father visitation with his children beginning in April 2001. The mother admitted that she denied the father visitation first with D.C.B., a son, who was three at the time, and then with all three children. She explained that the son had returned from the spring break visitation with his father unusually “clingy” and that the son had indicated that he was upset with his father and even stated that he wanted his father dead. The mother said that such behavior was unusual because the son had always enjoyed visitation with the father. Upon her questioning of him, the son commented that the father had spanked him, so the mother inferred that the child had been punished and that he was simply upset at being punished. However, the mother noticed later that evening as she bathed the son that the son’s anal area was red and that the son complained that it hurt. When questioned about why his bottom hurt, the son, according to the mother’s testimony at trial, said that the father had “dug in his bottom.”

The mother testified that she took the son to the emergency room to be examined, but that the emergency-room physician referred her to Dr. Penny White, a pediatrician trained in examining children alleged to be victims of sexual abuse. The mother took the son to Dr. White, who testified at trial that the mother reported that the son had told her that the father “took a white thing and put it in [his] bottom and it goes all the way to God.” Dr. White testified that the results of her examination of the son were “normal” and explained that, typically, physical examinations do not yield abnormal results even if a child has been sexually abused.

In addition to having the son examined by Dr.

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Bluebook (online)
879 So. 2d 1169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cjl-v-mwb-alacivapp-2003.