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February 2, 1994


Appeal from the Circuit Court of Shelby County. No. 89-D-24. Honorable Michael R. Weber, Judge Presiding.

Goldenhersh, Lewis, Rarick

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Respondent-counterpetitioner, Kenneth Roy Doty (hereinafter respondent), appeals from a judgment of dissolution of marriage entered in the circuit court of Shelby County awarding petitioner-counterrespondent, Andria Alice Doty (hereinafter petitioner): custody of the parties' two minor children subject to visitation by respondent, the marital home, and other marital property. The trial court also found respondent to be in contempt of court for failing to comply with its order to refrain from unsupervised visits with his daughter. Respondent was sentenced to two days in the county jail and ordered to pay $250 in attorney fees. In this cause, respondent raises the following issues: (1) whether the trial court abused its discretion in refusing to interview the oldest child in order to assist in determining custody, (2) whether the trial court erred in not assigning a guardian ad litem to the children in determining custody, (3) whether the trial court's contempt findings and sentence violated respondent's right to due process, (4) whether the trial court abused its discretion in denying respondent custody and limiting his visitation, and (5) whether the trial court abused its discretion in distributing marital property and debts. We affirm in part and vacate in part.


The parties married on July 3, 1980. It was petitioner's second marriage and respondent's third. Two children were born of this marriage, a son, born July 30, 1981, and a daughter, born September 19, 1986. According to petitioner, problems arose in 1987 when respondent began to get "very negative about everything." Petitioner was affected by this and went to see a psychologist. Respondent went with her a few times; however, respondent began to believe that petitioner was having an affair. In fact, respondent alleged petitioner had numerous affairs. Soon the parties were separated, and on April 10, 1989, petitioner filed for dissolution of marriage.

When proceedings were initiated, petitioner was 37 years old and employed as a registered nurse at Decatur Memorial Medical Center. Petitioner earned $23,207 in 1989. Petitioner was employed outside the home throughout the parties' marriage. Respondent was 43 years old when the petition was filed and worked as a truck driver for ABF Trucking. Respondent had net earnings of $32,470.56 in 1989. He was unemployed during the early years of the parties' marriage. During most of the marriage petitioner took primary care of the children with assistance from baby-sitters. Early in the marriage, when respondent was unemployed, he took care of the parties' son.

To say that both parties were bitter about the divorce proceedings is to say the least. There were accusations of adultery, child sexual abuse, phone-tapping, and physical violence. The children were caught in the middle of all this. Before the dissolution hearing, a number of petitions, counterpetitions, and motions were filed. On May 12, 1989, petitioner filed for an order of protection. An interim order of protection was granted on May 26, 1989. A plenary order of protection was granted on July 16, 1989. The order protected petitioner and the parties' two children. It provided petitioner custody and possession of the marital home and set child support and limited visitation.

On September 1, 1989, respondent filed a two-count petition alleging violation of the visitation order and requesting a rule to show cause against petitioner. Respondent also sought to modify visitation. A hearing was set for September 7, 1989, but was continued until September 14, 1989, by agreement of the parties.

On September 8, 1989, petitioner became concerned that respondent was sexually abusing their daughter and called the Department of Children and Family Services (the Department) sexual abuse hotline, at which time she was referred to an organization called Growing Strong. Petitioner explained her concerns to representatives of that agency, who recommended she call her attorney and take her daughter to a pediatrician for an examination. Petitioner did take her daughter to see a pediatrician. The pediatrician filed a report with the Department which prompted an investigation of respondent. On September 27, 1989, an order was entered by the trial court which provided that all further visitation between respondent and his daughter was to be in the presence of either respondent's sister, respondent's sister-in-law, or respondent's son.

On October 2, 1989, respondent filed a motion seeking a mental examination of petitioner and the children. Respondent alleged petitioner was mentally abusing the children and falsely accusing respondent of sexual abuse of his daughter. On October 13, 1989, the parties agreed that petitioner and the children would be examined by Dr. Boyd. Dr. Boyd found that petitioner was not mentally impaired.

On July 5, 1990, the trial court granted a dissolution of marriage. On September 13, 1990, a hearing on the remaining issues was held. Several witnesses testified on behalf of respondent, and several other witnesses testified on behalf of petitioner. Petitioner testified that her daughter made statements and acted in such a way that both petitioner and baby-sitters suspected respondent sexually abused her. Notwithstanding this testimony, the parties stipulated that the Department's investigation concluded that charges of sexual abuse against respondent were unfounded. There was testimony that the parties' son was having difficulty adjusting to the separation and divorce of his parents. His grades had suffered and he was easily upset. He had seen a school counselor in an attempt to help him deal with the stress. Respondent admitted to taking the parties' son to his attorney's office on three or four occasions to assist in this case. Respondent also admitted that videotapes were made of the children's visits with respondent and that videotapes were made at respondent's attorney's office. Respondent hired Ron Little, Director of Social Services at Kemmerer Village, a residential treatment center for adolescents and children suffering from emotional and/or behavioral disorders, to evaluate his parenting skills. Little was hired in preparation for trial. Mr. Little met with respondent and the parties' two children on two separate occasions. Little opined that respondent is a competent parent with good communications skills. Respondent, Little, and respondent's attorney met with the son one week before the hearing, at which time the son stated he wanted to live with his father. Little agreed that putting a child in such a situation where he is asked who he wants to live with is not advisable, but he stated that divorce cases often require that this be done.

With regard to the contempt finding, the children's babysitter testified that she saw respondent and his daughter without accompaniment in respondent's car after the trial court had ordered respondent to conduct his visits with his daughter while in the presence of others. Respondent himself admitted that he was alone with his daughter for two short periods of time although the trial court ordered him not to be.

With regard to the division of property, an appraisal of the marital home was admitted into evidence by stipulation of the parties. The marital home was appraised at $39,000. The value of other marital ...

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