In re the Marriage of Kimbrell

119 P.3d 684, 34 Kan. App. 2d 413, 2005 Kan. App. LEXIS 910
CourtCourt of Appeals of Kansas
DecidedSeptember 16, 2005
DocketNo. 93,450
StatusPublished
Cited by9 cases

This text of 119 P.3d 684 (In re the Marriage of Kimbrell) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Kimbrell, 119 P.3d 684, 34 Kan. App. 2d 413, 2005 Kan. App. LEXIS 910 (kanctapp 2005).

Opinions

Green, J.:

William David Kimbrell (David) appeals the trial court’s decision regarding parenting time with his 16-year-old son Evan Kimbrell. The issue in this case is whether the trial court can condition a noncustodial parent’s right to parenting time with his or her minor child upon the desires of the child. We determine that this cannot be done. K.S.A. 2004 Supp. 60-1616(a) makes it clear that a parent has a right to reasonable parenting time with his or her minor child “unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.” Conditioning parenting time on the wishes of a minor child improperly gives the child the authority to determine a noncustodial parent’s rights to parenting time and visitation and can have the effect of completely denying the noncustodial parent’s rights to parenting time.

Under the facts of this case, we determine that in the absence of a finding that parenting time “would seriously endanger the child’s physical, mental, moral or emotional health,” the trial court must set a reasonable and specific schedule for David’s parenting time with Evan. Accordingly, we reverse in part and remand to the trial court with directions to either determine an appropriate and reasonable parenting time and visitation schedule or make tire required statutory finding that the exercise of parenting time in this case would seriously endanger tire child’s physical, mental, moral, or emotional health.

The parties, David Kimbrell and Janet Bouley, formerly known as Janet Kimbrell, divorced in April 1996, after nearly 16 years of marriage. The parties had three children together, Anna Kimbrell (date of birth 04/18/81), Dylan Kimbrell (date of birth 09/05/86), and Evan (date of birth 10/09/88). At present, Evan is the only minor child involved in this case.

At the time of their divorce, David and Janet entered into a mediated agreement, where they agreed to joint custody of their [415]*415children and a shared parenting time arrangement. Apparently, about 6 months after the divorce, Janet and David resumed their relationship, but it was bumpy over the next several years. They ended their relationship in May 2000.

In July 2001, David moved to modify the 1996 divorce decree and for an emergency change of placement for Dylan and Evan. In his motion, David asked that he be given residential custody of Dylan and Evan, that the trial court order strict supervision of Janet’s contact with the boys, and that the trial court order a psychological evaluation of Janet, Dylan, and Evan to determine whether Janet was alienating the children from him. David maintained that Janet had “commenced a program and concerted effort to alienate the three children” from him and that she had interfered with his visitations and the parenting time and visitation schedule. At David’s request, these motions were dismissed in March 2002.

For summer 2001, the parties agreed to a split parenting arrangement where the children would essentially spend alternating weeks with each parent. In addition, the parties agreed to participate in psychological evaluations and testing. The agreed parenting plan was to continue until psychological evaluations and reports were completed.

Upon agreement by the parties, the trial court appointed Susan Vorhees, Ph.D., to conduct evaluation and testing of the parties and their minor children. Although David later moved for a protective order to prohibit the dissemination of Dr. Vorhees’ proposed report, the trial court ordered that Dr. Vorhees’ evaluation be provided to the court. Dr. Vorhees’ report, which was filed in December 2002, indicated that David was alienated from his children due to his own behavior. According to Dr. Vorhees, “[David] is alienated from them by his own inability to accept that they and their mother are independent individuals, that they need and want a relationship with both parents, and that he cannot be in control of either of these relationships.” Dr. Vorhees indicated that David’s alienation from the children could be resolved by David faying to accept his children for who they are and by fastening to his children.

[416]*416The trial court, on its own motion, appointed retired District Court Judge James Buchele as the case manager in January 2002. The trial court’s decision in this case indicates that the parties had been voluntarily working with Judge Buchele since October 2001. Judge Buchele recommended in January 2002 that the children reside with Janet and that David’s parenting time be “as approved by the Case Manager or as ordered by the Court.” David moved for review of these recommendations and also for ah order for family therapy and other relief.

In February 2002, Judge Buchele made additional recommendations, including that Dylan and Evan be with David on Wednesdays after school until 8 p.m. and on alternating Saturday and Sunday afternoons. Judge Buchele again made recommendations in March 2002. Judge Buchele recommended that David spend a week during spring break with Evan and that the parties participate in family counseling with Michael Lubbers, Ph.D. At that time, Dylan and Evan were seeing Dale Bamum, Ph.D., and Janet and David were each working with a mental health professional. David objected to both the February 2002 and March 2002 recommendations.

On June 12, 2002, Judge Buchele submitted his report and recommendations and also responded to David’s objections. In his report, Judge Buchele addressed David’s allegations that Janet had alienated Dylan and Evan. Judge Buchele’s opinion was that Dylan’s and Evan’s alienation from David was caused by David’s own conduct. Nevertheless, Judge Buchele was encouraged by the fact that David had spoken with Dr. Bamum and had agreed to work on a new approach to communicating with Evan.

In his report, Judge Buchele recommended modification of the existing parenting plan. Judge Buchele expanded David’s parenting time with Evan, setting forth specific times that Evan would spend with David. Judge Buchele’s recommendations assumed there would be some change in the status quo. Judge Buchele recommended that David’s parenting time with Dylan be “as they may agree.”

After David and Janet separately filed objections to Judge Buchele’s recommendations, Judge Buchele issued a supplemental re[417]*417port on June 27, 2002. Judge Buchele indicated that the brief attempt to expand David’s parenting time with Evan had been disastrous. Judge Buchele concluded that the problems in this case could not be resolved by additional time being spent between Evan and his father. Judge Buchele recommended that Evan be with David on Wednesdays from 4 to 8 p.m. and for one 24-hour period every weekend. Both David and Janet objected to Judge Buchele’s June 27, 2002, supplemental report and recommendations.

In November 2002, upon David’s motion, the trial court appointed Dr. Richard Gardner, M.D., to conduct a parental alienation syndrome (PAS) evaluation of the family. The trial court terminated its order for counseling with Dr. Lubbers but ordered Dylan and Evan to continue therapy with Dr. Barnum. Moreover, the trial court ordered that the contact between Evan and David continue under the current arrangement and that the contact between Dylan and David be as Dylan desired.

Dr. Gardner completed the PAS evaluation and filed a written report in January 2003. Dr.

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Bluebook (online)
119 P.3d 684, 34 Kan. App. 2d 413, 2005 Kan. App. LEXIS 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-kimbrell-kanctapp-2005.