Appeal from the Circuit Court of Madison County. No. 91-D-1692 Honorable Daniel J. Stack, Judge, presiding.
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Terrence J. Hopkins, J., and
Honorable Gordon E. Maag, J.,
The opinion of the court was delivered by: Justice Goldenhersh
Katherine S. (Meyer) Knoche (petitioner) appeals from an order of the circuit court of Madison County granting the petition of Steven G. Meyer (respondent) to modify the custody of the parties' daughter. The issues raised by petitioner on appeal are: (1) whether the trial court erred in excluding petitioner, who was appearing pro se, from the in camera interview of the child, (2) whether the trial court applied the proper standard of proof in transferring custody from petitioner to respondent, (3) whether the trial court's decision to modify custody was against the manifest weight of the evidence, and (4) whether the trial court's denial of a continuance to petitioner was an abuse of discretion. We affirm.
The parties were married on December 3, 1988. It was respondent's first marriage and petitioner's second. Petitioner had a daughter from her previous marriage. On September 21, 1989, the parties' only child, Chelsea, was born. On January 22, 1992, an order was entered by agreement, dissolving the parties' marriage, awarding custody of Chelsea to petitioner, and granting respondent certain reasonable visitation rights. Over the following years, numerous motions were filed by both parties on a variety of issues including, inter alia, child support, visitation, and venue. On April 4, 1996, respondent filed a motion to modify custody, seeking a transfer of custody of Chelsea from petitioner to respondent. On May 30, 1996, respondent filed an amended motion to modify custody, and that is the subject of the instant appeal.
On July 3, 1996, the trial court entered an order appointing a psychologist, Dr. Robert Clipper, to perform psychological evaluations of the parties. Before preparing his report, Dr. Clipper interviewed numerous people over an extended period of time. In particular, Dr. Clipper interviewed petitioner, respondent, Chelsea, and respondent's new wife. Dr. Clipper also interviewed two Department of Children and Family Services (Department) caseworkers and a police officer who investigated petitioner's report of alleged incidents of sexual abuse of Chelsea by Chelsea's stepgrandfather (respondent's new wife's father). Dr. Clipper filed an extensive report with the trial court on December 18, 1996.
As for the alleged incidents of sexual abuse, Dr. Clipper noted, "[The caseworkers and the police officer] found Chelsea, much as I did, as if she were merely reporting a story she heard." The Department determined that the alleged incidents were unfounded, and the trial court agreed. Overall, Dr. Clipper found respondent to be a "more stable and consistent parent to Chelsea" who is capable of setting aside his differences with petitioner for Chelsea's sake. Dr. Clipper opined that he does not believe that petitioner is capable of doing the same thing. Dr. Clipper noted that petitioner consistently disallowed respondent's visitation with Chelsea, despite police recommendations for her to recognize respondent's visitation rights, and that petitioner engaged in "dramatic scenes" and "histrionic outburst[s]." Ultimately, Dr. Clipper recommended transferring primary physical control of Chelsea from petitioner to respondent.
A hearing on respondent's petition to modify custody began on August 4, 1997. Seven witnesses testified for respondent, including Dr. Clipper, a police officer, petitioner's sixth husband, Roger Knoche, and four of petitioner's former boyfriends. At the end of the day, respondent was not finished presenting all his witnesses. The trial judge scheduled the hearing to resume on September 9, 1997, and explained to the parties that he had taken good notes and would not decide the case until he had heard all of the evidence. On September 2, 1997, petitioner's attorney filed a motion to continue, which the trial court granted. The hearing was then scheduled for February 25, 1998, but later rescheduled for March 12, 1998. On October 23, 1997, petitioner's attorney filed a motion to withdraw on the basis that petitioner had refused to cooperate with counsel in that she had failed to pay the attorney for services rendered. Petitioner's attorney sent petitioner a letter in which he notified petitioner of the pending motion, which was scheduled for November 7, 1997, and explained that she had a right to appear at the hearing on the motion to withdraw, obtain new counsel to appear for her, or have 21 days to obtain new counsel or enter her own appearance. The motion to withdraw was granted on November 7, 1997. Petitioner did not appear at the hearing.
On February 17, 1998, respondent's lawyer sent a letter to petitioner in which she explained that because petitioner's attorney had withdrawn, petitioner might not know that the date of the hearing had been changed. Respondent's attorney went on to inform petitioner that the hearing was scheduled to resume on March 12, 1998. On March 4, 1998, the trial court ordered that a summons be sent to petitioner to inform her that all pending matters, including petitioner's former attorney's motion for attorney fees, were set for a hearing. On March 12, 1998, the trial court reported that two days earlier, petitioner contacted his clerk and requested a continuance in order to obtain new counsel. The trial court informed petitioner that her request was denied. Petitioner attempted to get a continuance on the day of the hearing, but the trial court again denied the request, explaining that petitioner had plenty of time to get a new attorney but failed to do so. Petitioner then proceeded pro se. At the end of day, the trial court took the case under advisement.
The evidence reflects that after the parties divorced, petitioner married and divorced four additional times and lived with at least four men that she did not marry. Petitioner moved to seven different residences during this time, and each time Chelsea moved with her. Petitioner's third marriage to Kenneth Spencer was short-lived, as a judgment of dissolution was entered on March 25, 1993, slightly more than a year after her divorce from respondent was entered. Petitioner married her fourth husband, Michael Martin, on September 3, 1993. That marriage lasted less than a year. She obtained an order of protection against him on November 1, 1993, alleging that Martin drank excessively and physically abused her. She also alleged that he left her children home alone when he was supposed to be baby-sitting. Chelsea was four years old at the time, and petitioner's oldest daughter was seven. Petitioner divorced Martin, but she remarried him on March 25, 1994.
Sometime after her second marriage to Martin (marriage number five), petitioner alleged that Martin sexually abused her oldest daughter, and she again filed for divorce. At the hearing on the instant matter, petitioner explained the allegations: "Michael Martin had been exposing himself, masturbating in front of my daughter and everything. So, yes, I did file charges against him for that." An order of dissolution was entered on December 8, 1994.
Petitioner married her sixth husband, Roger Knoche, in September 1995, and she divorced him on November 15, 1996. During her marriage to Mr. Knoche, she was still haunted by her previous husband, Michael Martin. In July 1996, she obtained an order of protection for her and Roger Knoche against Mr. Martin. Mr. Knoche also had a violent personality, as evidenced by photos submitted as part of the posttrial motion in the instant case showing petitioner with severe bruising, allegedly caused by a beating from Roger Knoche when she and Chelsea were residing with him.
The evidence also indicated that petitioner interfered with respondent's visitation on numerous occasions. Respondent was forced to file various motions to compel visitation, and ultimately petitioner was found in willful contempt for violating court-ordered visitation. The record is replete with motions and cross-motions concerning visitation and court orders relating to visitation. Transcripts of messages that petitioner left on respondent's answering machine were introduced into evidence and reflect enormous hostility and anger on the part of petitioner and show that petitioner was indeed interfering with respondent's court-ordered visitation with Chelsea.
Petitioner attempted to explain her hostility on the basis that respondent's new wife intercepted her phone calls and interfered with her relationship with Chelsea. According to petitioner, respondent and his new wife are not so much concerned about Chelsea's well-being but, instead, have a "personal vendetta" against petitioner and harass her and "dig up dirt" to make her look bad. Petitioner realizes that she made some mistakes, but she considers herself a good and loving mother. She said she was tired of the "lies" respondent and his wife told about her and was "very sick and tired of the interference." Petitioner testified that her divorce from Roger Knoche was precipitated by respondent's "interference" and "badgering." Petitioner explained that she wants the fighting to stop and thinks that the parties should be able to work out their differences; however, she stated that they are unable to do that and everything ends in a fight.
The trial court conducted an in camera interview with Chelsea. Prior to the interview, the trial court explained to petitioner that since she did not have an attorney, she would not have anyone present during the in camera interview. Petitioner then inquired whether respondent's attorney would be allowed to talk to Chelsea. The trial judge told petitioner that he would not allow respondent's attorney to ask Chelsea any questions. During the interview, Chelsea stated a preference to remain with petitioner. Respondent's attorney was present during the interview. While the attorney did not ask questions directly to Chelsea, she did submit questions to the court for Chelsea to answer. The trial judge took the case under advisement because he wanted time to "absorb" the evidence.
On July 16, 1998, the trial court entered an order transferring the custody of Chelsea to respondent. The order also granted petitioner visitation, similar to the visitation previously awarded to respondent. Accordingly, the trial court granted petitioner a period of summer visitation with Chelsea. Chelsea, therefore, stayed with petitioner for her scheduled summer visitation. As soon as that period came to an end, petitioner filed a motion to stay the order of the trial court and a motion to reconsider. Petitioner engaged counsel to assist her in this matter. Petitioner retained custody during the time the motion to stay and reconsider was pending. The motion to reconsider was set for October 1, 1998. On that date, respondent and his attorney appeared, and the trial court granted petitioner a continuance based upon her representations to the trial court that she had a back injury which prohibited her from appearing in court. In order to verify her incapacity, the trial court ordered petitioner to provide a doctor's statement within five days. Petitioner failed to supply such a statement. The hearing was reset for November 23, 1998. On November 20, 1998, petitioner's attorney filed a motion for a continuance due to a scheduling conflict in another matter. The trial court granted the continuance over respondent's objection and rescheduled the hearing for December 3, 1998. On that day, an order was entered that permitted petitioner to obtain a transcript of the trial court's in camera interview with Chelsea, to have the ...