Kiefer v. Yellon

646 So. 2d 1073, 94 La.App. 5 Cir. 218, 1994 La. App. LEXIS 3139, 1994 WL 638053
CourtLouisiana Court of Appeal
DecidedNovember 16, 1994
DocketNo. 94-CA-218
StatusPublished

This text of 646 So. 2d 1073 (Kiefer v. Yellon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kiefer v. Yellon, 646 So. 2d 1073, 94 La.App. 5 Cir. 218, 1994 La. App. LEXIS 3139, 1994 WL 638053 (La. Ct. App. 1994).

Opinion

laCANNELLA, Judge.

Defendant, Carl I. Yellon, appeals from a district court judgment in favor of plaintiff, Lori Weiss Kiefer (formerly Yellon), regarding custody of and visitation with their minor child. For the reasons which follow, the judgment of the trial court is affirmed.

The parties were married on April 5, 1981. On January 24,1990, they finalized the adoption of the minor child, Lindsey Nicole Yel-lon. Shortly thereafter, appellee filed for divorce. A judgment, dated July 3, 1991, granted a final divorce and joint custody of the minor child. Appellee was named custodial parent and liberal visitation was granted to appellant. Custody and visitation proceeded smoothly although there was tension between the parties. Both parties eventually remarried, appellee to Blake Kiefer and appellant to Michele Cupples.

On December 9, 1992, appellee filed for sole custody of the minor child, alleging that appellant had sexually abused the child. She requested that all ^visitation be terminated pending the outcome of the ease. The order suspending visitation by appellant was signed ex parte on December 9, 1992.

On December 22, 1992, appellant filed a rule requesting sole custody of the minor child. He denied all allegations that he had sexually abused his child and alleged, to the contrary, that it was the new husband of appellee who was sexually abusing the child.

Numerous other rules were filed by both parties. During the six day hearing, appel-lee alleged and attempted to prove that appellant had sexually abused their minor child and appellant attempted to prove that the sexual abuse allegations were retaliatory or to protect the guilty party, Mr. Kiefer. At the close of testimony, the trial judge took the matter under advisement and rendered judgment on October 28, 1993. The trial court ruled that the minor child had been sexually abused by appellant, granted sole custody of the child to appellee and suspended all visitation rights of appellant. He was ordered to undergo therapy. The trial court also determined that appellee and her husband had exhibited inappropriate behavior in their bathing practices with the child which the court ordered to stop. Appellee and her husband were also ordered to undergo therapy. It is from this judgment of October 28, 1993 that appellant appeals.

[1075]*1075Appellant assigns four errors on appeal and consolidates them into two arguments in brief. First, he argues that the trial court erred in applying the wrong burden of proof and in failing to apply the proper rules of evidence. Second, he argues that under La. R.S. 9:3761 it was reversible error for the trial court to fail to appoint an attorney to represent the minor child.

Appellant’s focus in his first argument concerns the sufficiency of the evidence and whether the trial court erred in reaching its determination. On appeal, the factual findings of the trial judge are entitled to great weight and | .¡.should not be overturned on review absent a showing of a clear abuse of discretion. Norris v. Norris, 604 So.2d 107 (La.App. 2nd Cir.1992); Guillory v. Guillory, 602 So.2d 769 (La.App. 3rd Cir.1992); Hicks v. Hicks, 594 So.2d 532 (La.App. 5th Cir.1992). A trial judge has wide discretion to determine the best interest of the child and his custody order should not be disturbed on appeal unless there has been a manifest abuse of discretion. Russell v. Russell, 589 So.2d 3 (La.App. 5th Cir.1991). Where a change of custody is sought after a considered decree has been issued, the person seeking the change must meet his burden of proof by clear and convincing evidence. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Here, the record reveals that the testimony and medical reports introduced into evidence clearly support the trial judge’s findings. In fact, there was no contrary evidence, only an inconclusive report by Dr. William Janzen.

Appellee and her husband testified that the report of sexual abuse was initiated after the child had attempted to touch Mr. Kiefer’s groin area. Upon being reprimanded she stated spontaneously that her daddy allowed her to touch him. Upon further questioning, the child described several different instances of sexual abuse that her father had perpetrated. Appellee then took the child to a clinical social worker, Elaine Spence-Carver. Ms. Spence-Carver recommended that ap-pellee have the child medically examined and an appointment was set up through Children’s Hospital with Dr. Rebecca Russell.

Dr. Russell, a pediatrician, conducted a physical examination of the child and had a verbal interview with the child. Dr. Russell was accepted at trial as an expert in the field of pediatries and child abuse. She testified at trial that the physical exam revealed evidence consistent with sexual abuse, namely, adhesions of the hymen indicative of a healed rupture. She opined that the injury would not be consistent with diaper rash, infections, falling injuries or self exploration, but rather was caused by penetration. Dr. Russell opined that based Ison her physical exam of the child, she thought the child had been sexually abused.

Dr. Russell also conducted a verbal interview with the child involving anatomically correct dolls. During the course of the interview, often in spontaneous utterances, the child revealed numerous instances of sexual behavior that she had participated in with her father, including touching his penis, kissing his penis and having him rub his penis on her until ejaculation. Dr. Russell gave several examples from the interview of the reliability of the information she got from the child. She pointed out that many of the child’s comments were spontaneous and that the child would disagree with her on some points, which is indicative of the fact that the child was not just answering what she thought the interviewer wanted to hear. The child also used the anatomically correct dolls to indicate the exact behavior. Also, the child used age-appropriate words in her descriptions and not adult words that she may have heard. It was Dr. Russell’s opinion that the child had been sexually abused by appellant.

Next, the child was taken to the East Jefferson Office of Community Services (OCS) and spoke with Kenneth Trahan. His investigation of the complaint gave rise to further interviews with the child in which she again confirmed the sexual acts in which appellant had made her participate.

[1076]*1076Appellant denied that he had ever sexually abused his child. He attempted to cast doubt on appellee’s motives in reporting the sexual abuse by testifying that, in the week before she made the report, he had an argument with her first, and later with Mr. Kiefer about the child’s bathing practices in appel-lee’s home. Appellant testified that the child had been at his home on a visit when she expressed to his wife that she bathed with Mr. Kiefer. Mrs. Yellon was concerned over this statement and reported it to appellant. In turn, he discussed it with appellee, expressing that he believed it was inappropriate and requested that it stop. Two days later, when appellant called to speak with his child, he had an | (¡argument with Mr. Kiefer over the bathing matter and Mr. Kiefer told him that he could not speak to her because Mr. Kiefer was about to give her a bath. They quarrelled and Mr. Kiefer hung up. Appellant contends that appellee and her husband fabricated the sexual abuse charges in order to stop appellant from asserting charges against Mr. Kiefer for bathing with the child.

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Related

Bergeron v. Bergeron
492 So. 2d 1193 (Supreme Court of Louisiana, 1986)
Norris v. Norris
604 So. 2d 107 (Louisiana Court of Appeal, 1992)
Guillory v. Guillory
602 So. 2d 769 (Louisiana Court of Appeal, 1992)
Dye v. Schwegmann Giant Super Markets, Inc.
599 So. 2d 412 (Louisiana Court of Appeal, 1992)
Hicks v. Hicks
594 So. 2d 532 (Louisiana Court of Appeal, 1992)
Russell v. Russell
589 So. 2d 3 (Louisiana Court of Appeal, 1991)

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Bluebook (online)
646 So. 2d 1073, 94 La.App. 5 Cir. 218, 1994 La. App. LEXIS 3139, 1994 WL 638053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiefer-v-yellon-lactapp-1994.