T.K. v. H.K.

24 So. 3d 1055
CourtCourt of Appeals of Mississippi
DecidedJanuary 5, 2010
DocketNo. 2008-CA-01969-CGA
StatusPublished
Cited by4 cases

This text of 24 So. 3d 1055 (T.K. v. H.K.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.K. v. H.K., 24 So. 3d 1055 (Mich. Ct. App. 2010).

Opinion

ROBERTS, J., for the Court.

¶ 1. H.K. filed a complaint against his former wife, T.K., for modification of custody of their then two-year-old daughter, S.K.1 The Harrison County Chancery Court found merit to H.K’s complaint and awarded H.K. primary physical custody of S.K. T.K. appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. H.K. and T.K. were married in 2001. Their only daughter, S.K., was born in January 2003. H.K. and T.K. separated in April 2003, and nearly two years later, they divorced. At that time, they agreed that T.K. would receive primary physical custody of S.K. and that H.K. would receive visitation rights.

¶ 3. The parties had consistently lived on the Mississippi Gulf Coast. During H.K.’s visitation weekend before Hurricane Katrina made landfall on Monday, August 29, 2005, H.K. had taken S.K. to Tallahassee, Florida so she would not be in the path of the hurricane when it made landfall. Although H.K.’s visitation was scheduled to end on Sunday evening, H.K. did not return to the Mississippi Gulf Coast until the following Tuesday.

¶4. H.K. returned S.K. to T.K.’s custody. At that time, T.K. did not have electricity, food, or water. H.K. asked T.K. to let S.K. remain with him because he had a generator that was able to supply electricity to his entire house and his living arrangements were relatively unaltered by the storm damage. T.K. refused H.K’s request. During the next four days, T.K. went to H.K.’s discount beer and tobacco store twice.2 Each time, T.K. was allowed to take what she needed from the store.

¶ 5. During T.K.’s second trip to the store, S.K. remained in T.K.’s car with an unidentified woman. According to H.K., S.K. was dirty; she had rashes; and she suffered from numerous insect bites. H.K. [1059]*1059again unsuccessfully asked T.K. to leave S.K. with him.

¶ 6. Without informing H.K., T.K. took S.K. to Phenix City, Alabama. H.K. attempted to call T.K., but she would not answer his calls or return his messages. H.K. did not see S.K. or communicate with T.K. for approximately two months.

¶ 7. On November 9, 2005, T.K. filed a form petition for protection from abuse against H.K. in the circuit court of Russell County, Alabama. Within the form petition, T.K. described herself as a resident of Russell County, Alabama. T.K. checked boxes and claimed that: H.K. had injured her; he had tried to injure her; he had threatened to injure her; he made her afraid she would be seriously injured; and he made her have sex by force or threat of force.3 Under the portion of the form that requires a written explanation of the basis for the request for protection, T.K. stated that H.K. had attempted to call her “several” times since September 8, 2005. T.K. further stated that she “ignored him till [sic] he called with my address.” T.K. elaborated on H.K.’s calls as follows:

9/12/05 — told me I better come back. 9/16/05 — He is sending his ex-wife Lujon who just got out of prison to take care of me. 10/05/05 — Left message if I know what is best I will bring [S.K.] to him. 11/08/05 — said he is coming to get [his] daughter and he knows where I am.

¶ 8. Among numerous other things, T.K. requested that the Russell County Circuit Court enjoin H.K. from the following: (1) threatening, attempting to commit, or committing acts of abuse against her or S.K.; (2) contacting her or S.K.; (3) being near her or S.K.; or (4) transferring unspecified property that she and H.K. mutually owned.

¶ 9. On December 5, 2005, the Alabama circuit court conducted a hearing on T.K/s petition. H.K. did not appear at that hearing. Two days later, the Alabama circuit court entered an order on T.K/s petition. The Alabama circuit court held that H.K. was prohibited from threatening or harassing T.K. Additionally, the Alabama circuit court held that H.K. was not allowed to contact or communicate with T.K.

¶ 10. On November 21, 2005, which was prior to the Alabama circuit court’s resolution of T.K/s petition, H.K. filed a complaint against T.K. in the Harrison County Chancery Court. Most pertinent to this appeal is H.K/s request that the chancery court modify the previous custody arrangement and award him primary physical custody of S.K. On January 13, 2006, the chancellor entered an order awarding H.K. with make-up visitation for the time that H.K. lost when T.K. kept S.K. from him with no contact. Additionally, the chancellor stated that the chancery court “shall be the arbiter or [sic] any dispute between the parties and the parties shall not seek to obtain the assistance of any court in any other jurisdiction.”

¶ 11. T.K. moved back to the Mississippi Gulf Coast in July 2006. Sometime prior to August 2006, H.K. became disturbed by things S.K. said during his visitation periods. S.K. indicated that Sergio Colon, an acquaintance of T.K/s, had sexually abused her. H.K. videotaped some of S.K.’s statements about Sergio. H.K. recorded S.K., who was three years old at that time, discussing how Sergio “licked her butt and her pee-pee.” Additionally, S.K. said that Sergio put her legs on his [1060]*1060shoulders. S.K. demonstrated what she meant by lying on her back, widening her knees, and pulling her ankles toward her own shoulders. S.K. also demonstrated how Sergio “licked her butt and her pee-pee.” S.K. also mentioned that Sergio “held [a] turtle in him [sic] hands,” that the turtle was on her mouth, and that the “turtle pooped in her mouth.”4

¶ 12. The hearing on H.K.’s complaint for modification was scheduled for August 2006. However, when the chancellor first discovered H.K.’s concerns regarding potential sexual abuse, the chancellor took emergency action. As a result, S.K. was temporarily removed from T.K.’s custody and placed in a shelter.5 The chancellor appointed Annette Williams as S.K’s guardian ad litem. Additionally, the chancellor appointed social worker Freída Kaletsch to conduct studies of H.K’s and T.K’s homes. Finally, the chancellor appointed J. Donald Matherne, Ph.D., a clinical psychologist, to interview S.K. regarding the assertion that she had been sexually abused.

¶ 18. On August 16, 2006, Dr. Matherne interviewed S.K. Dr. Matherne subsequently filed a written report that will be discussed in greater detail below. Paraphrasing for brevity’s sake, Dr. Matherne concluded that S.K.’s responses during the interview supported the assertion that S.K. had been sexually abused by a man named Sergio while she was in T.K.’s care.

¶ 14. However, on September 6, 2006, Williams, the guardian ad litem, filed a motion to return S.K. to T.K’s custody. Williams reported that she had interviewed T.K. and that she had “spoke[n] with” H.K., G.K., and the court-appointed social worker, among other people. Williams also stated that she based her motion on Dr. Matherne’s recommendation.6 The next day, the chancellor entered an order returning S.K. to T.K’s custody on the condition that Sergio have no contact with S.K.

¶ 15. Shortly after recommending that S.K. be returned to T.K.’s custody, Williams filed a motion requesting that the chancellor order T.K., H.K., and G.K. to submit to psychological evaluations. In October 2006, T.K., H.K., and G.K. agreed to undergo psychological evaluations to be performed by Dr. Matherne. Dr. Math-erne evaluated H.K. and G.K. on January 10, 2007. Dr.

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Bluebook (online)
24 So. 3d 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tk-v-hk-missctapp-2010.