In Re Marriage Of Kimbrell

119 P.3d 684 (2005)

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Nature of the Case

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Facts

H and W 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. In July 2001, H moved to modify the 1996 divorce decree and for an emergency change of placement for Dylan and Evan. H maintained that W 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 H's request, these motions were dismissed in March 2002. 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 H 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 H was alienated from his children due to his own behavior. According to Dr. Vorhees, 'H 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.' A judge recommended that the children reside with W and that H's parenting time be 'as approved by the Case Manager or as ordered by the Court.' In November 2002, upon H'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. Gardner found no evidence that the children were suffering from PAS or that W was a PAS alienator. Instead, Dr. Gardner indicated that the primary source of the children's alienation from H was H's own psychiatric problems, especially his obsessive-compulsive personality disorder and paranoid trends. Dr. Gardner recommended that W continue to have primary parenting time with Dylan and Evan, that W have primary legal custody, and that the court rescind the order requiring Dylan and Evan to participate in therapy. More reports, more Ph.D.’s, and more motions followed. A special master issued his written report in January 2004. The court determined that Evan's parenting time with his father, given his maturity and the history of this case, should be as is mutually requested. H appealed.