KATHRYN A. DUKE
HAROLD W. DUKE, III
Session May 23, 2014
Appeal from the Chancery Court for Williamson County No. 33519 James G. Martin, III, Chancellor
James L. Weatherly and Jacqueline B. Dixon, Nashville, Tennessee, for the appellant, Harold W. Duke, III.
Helen Sfikas Rogers, Nashville, Tennessee, for the appellee, Kathryn A. Duke.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins J., joined.
W. NEAL McBRAYER, JUDGE
This is a post-divorce case involving issues of child visitation, parent alienation, civil contempt, criminal contempt, evidence, and attorneys' fees. Kathryn A. Duke ("Mother") and Harold W. Duke, III ("Father") are the parents of three children who were born in 1995, 1997, and 2000. The Chancery Court for Williamson Country granted the parties a divorce in July 2009, naming Mother the primary residential parent. Mother was awarded 285 days with the children, and Father was awarded 80 days.
Three months after the parties were divorced, Mother filed a motion for civil contempt based on Father's alleged failure to pay court-ordered support and expenses. Mother subsequently filed a petition in January 2010 seeking an order holding Father in civil and/or criminal contempt of the court's prior orders due to statements made by Father to the children about the parties' divorce and derogatory comments made by Father to the children about Mother. Mother also requested that the trial court severely limit or modify Father's time with the children.
The trial court entered a restraining order against Father on January 13, 2010, in which Father was enjoined and restrained from: (1) discussing the parties' divorce or post-divorce litigation with the children; (2) approaching Mother's vehicle or exiting his house during exchanges of the children at Father's residence; (3) exiting his car during exchanges at Mother's residence; and (4) communicating with Mother other than through their attorneys.
Father filed a motion to vacate the restraining order on January 20, 2010. The trial court modified the restraining order to permit Father to communicate with Mother by e-mail, stating "such communication shall be factual concerning logistics or compliance under the Parenting Plan or other such issues that the parents must address, and it shall contain no commentary by either party outside of the factual information that needs to be exchanged." In all other respects, the court directed that the restraining order would remain in effect.
On April 13, 2010, Father filed a petition seeking a restraining order against Mother and permanent change of custody with respect to the oldest child, Wesley. Father's request for a restraining order was based on what Father perceived to be Mother's inappropriate interactions with, and discipline of, Wesley. Father also asked that Mother be restrained from approaching Father in an attempt to engage him in conversation because Father was restrained from communicating with Mother face-to-face. The trial court entered a restraining order against Mother on April 14, 2010, enjoining and restraining her from: (1) driving a vehicle while any of the children are clinging to the outside of the vehicle; (2) grabbing her son in an inappropriate way; (3) approaching Father to converse while Father is prohibited from conversing with Mother; and (4) discussing the contents of Father's petition with the children.
The parties filed additional related motions and petitions over the next few months. In addition, Father sought permission to interview the children. Father claimed the children may be necessary witnesses in the case because statements were allegedly made to the children in violation of a restraining order. The trial court entered an order on August 26, 2010, addressing three motions by Father and eight motions by Mother. The court granted Father's motion to interview the children. The restrictions on the parties' communication via e-mail remained in place. The court also denied Father's emergency request for a change of custody with respect to Wesley.
Following the trial court's August 26, 2010 Order, the parties continued to file motions and amended petitions alleging contempt of the court's orders by the other parent and requesting additional restraining orders. Father also made further requests for custody of Wesley. In October 2010, Father filed an Amended Petition in which he sought equal physical custody and/or equal parenting time with the parties' daughters, Emily and Caroline.
A. March 15, 2011 Hearing and Agreed Parenting Evaluation
On March 8, 2011, Father filed a motion seeking permission for the children to be interviewed by a potential Rule 26 expert regarding issues related to the children's best interests and Father's parenting of the children. Mother opposed this motion, and the court held a hearing on this and other issues on March 15, 2011.
At the hearing on March 15, Mother's attorney explained that, during the parties' divorce proceedings in 2009, Dr. William Bernet and another doctor tested the children, interviewed the parents, conducted full psychiatric tests on the parents, and recommended a parenting plan. Mother's counsel informed the court that both Father's and Mother's attorneys approached Dr. Bernet "to weigh back in on this" due to Mother's allegation of parental alienation. Mother's attorney explained that Dr. Jay Woodman and Dr. Bernet met on the Friday before the March 15 hearing and decided that it might be best for Dr. Bernet to interview Mother and Father again to "get all the information he might need on the children to raise [sic] whatever conclusions he needs to make that would be helpful to the court."
Dr. Woodman and Dr. Bernet, at least initially, thought these children do not need to be interviewed. They have been through horrible stuff. They have been bounced back and forth between these parents. Dr. Woodman is doing everything he can. He is seeing these children almost weekly, and what Dr. Woodman was told by [Father's attorney] is that they are thinking about taking the children to see Dr. Hunt, who is Dr. Duke's treating psychiatrist. I would guess that the purpose of that would be for Dr. Hunt to say your dad really does have [attention deficit disorder ("ADD")] and he really does need to take Adderall. Even at trial, Dr. Murray Smith, Dr. Scott Ruder, and Dr. Bernet all testified that they didn't think that was the case.
And so where do we start? Once we start down this slippery sliding slope of let[ting] the children [be] interviewed . . . by their Rule 26 [expert], then do I have the opportunity to have my own Rule 26 person look at them? If so, then why have we been bothering Dr. Bernet? . . . Dr. Bernet has the history. He saw these kids four years ago, basically. He could compare what he saw when they were going through the divorce versus what's going on now.
After hearing argument from both sides, the court denied Father's motion to have the children interviewed by a Rule 26 expert. The trial court explained:
I met with the children, as you-all know, and talked to them, and at this time I'm not inclined to go any further with these children than they have already gone with Dr. Woodman.
I'll reserve the issue, though, and if at the trial of this case I think somebody else is needed, I will revisit the question, but I'm not going - - I'm not going any further with additional expert evaluation of these children between now and the trial.
On April 6, 2011, Mother and Father proposed an Agreed Order for Evaluation and Recommendation, which the trial court adopted and entered as an order. Pursuant to the terms of the Agreed Order, Dr. Bernet was to meet individually with Mother and Father to update the parenting evaluations he conducted in September and October 2007. Dr. Bernet was ordered not to interview the children, but he was permitted to collect additional information about the children from Dr. Woodman. Dr. Bernet was directed to prepare a report including recommendations regarding: (1) the children's parenting arrangements; and (2) psychotherapy and other psychosocial interventions for the family members. Once his report was completed, Dr. Bernet was instructed to distribute it simultaneously to counsel for both parties. The Agreed Order continued, "in the spirit of being neutral and impartial, Dr. Bernet and Dr. Woodman prefer to meet with or have telephone conference calls with both attorneys at the same time, so that everybody hears the same information concerning the evaluation . . . ."
B. Dr. Bernet's May 12, 2011 Report
Dr. Bernet prepared a report entitled "Forensic Parenting Time Evaluation, " which was introduced as an exhibit during the trial of this case. In preparing the report, Dr. Bernet met with Father for 5.2 hours over two days, and he met with Mother for 4 hours over two days. Dr. Bernet also had telephone conversations with Father's treating physicians; the children's counselor; Dr. Woodman; and the parties' attorneys.
Dr. Bernet stated the following in his report:
I am concerned that from 2008 to the present time, the children have been caught in the middle of an intense battle between their parents. All three children have gravitated to form a strong alliance with their father and they tend to reject and avoid a satisfying relationship with their mother . . . .
It is very painful for children to find themselves in situations over and over in which they feel they have to reject the love and nurture of one of their parents . . . . In general, Dr. Duke blamed the children's attitudes and behaviors on things Ms. Duke has done; on the other hand, Ms. Duke blamed the problem on things Dr. Duke has done. My overall conclusion is that both parents have contributed to the current situation, in which the children have criticized Ms. Duke, opposed her, and rejected her far out of proportion to anything Ms. Duke has done. However, I believe that the children's father, Dr. Duke, has been by far the greater cause of the children's rejection of their mother. I believe that Dr. Duke has persistently, actively, and purposefully undermined and sabotaged the children's relationship with their mother.
With regard to their mother, Dr. Duke has apparently instructed the children not to actively argue or fight with her, but to simply avoid engaging in activities or conversation with her . . . . Dr. Duke told me, "The children's anger is generally passive. I've told the kids that they have the right to not do things, such as not go to a ball game. They refuse to go to events." . . .
The children have identified with Dr. Duke's anger at Ms. Duke and have expressed it directly and indirectly to her. According to Ms. Duke, Wes said he hated her and, "When I graduate from high school, I'll never see you again." Generally, however, the children have behaved toward their mother exactly the way Dr. Duke instructed them to behave, i.e., refusing to participate in activities with her. Ms. Duke said, "It's like the children have made a pact that there will be no fun, no good memories at their mother's home." . . .
I conclude that Dr. Duke has actively encouraged the children to disregard and shun their mother . . . .
Dr. Duke related to me many criticisms of Ms. Duke, and he has apparently discussed those same criticisms with Wesley, Caroline, and Emily. In doing so, Dr. Duke has persistently undermined Ms. Duke's relationship with her children.
. . . Ms. Duke related that the children persistently criticized her, no matter what she did. She said, "I don't have the right to do anything in my home. If I laugh, they say I'm faking it. If I cry, it's because I want pity . . . ."
Some of Dr. Duke's criticisms of Ms. Duke seem rather farfetched and they seemed to reflect an overly suspicious outlook, especially in terms of his relationship with Ms. Duke. In some instances, the children adopted Dr. Duke's suspicions and stated them either with Ms. Duke or with Dr. Woodman. Those were further instances of Dr. Duke's undermining the children's relationship with their mother.
For example, Dr. Duke thought that Ms. Duke was responsible in some way for the death of the dog of Ms. Lineberger, his fiancée. Dr. Duke said, "I think she was involved with Ms. Lineberger's dog, I do. I should not have made the comment to the children about it. The dog was put in the back seat of the Suburban on a sunny day. My belief, personally, is that Ms. Duke was involved with it." The children heard and adopted Dr. Duke's overly suspicious interpretation of those events. According to Ms. Duke, they said, "You killed Jennifer's dog, " and, "I can't believe you killed Jennifer's dog." The children told Ms. Duke that Dr. Duke said she had done that.
Ms. Duke agreed that she was not perfect. She agreed that there were times when she said or did something that she later regretted. She related a particular time that she became irritated with Wesley and said the wrong thing. Ms. Duke related that on November 11, 2009, she and the children were celebrating Wesley's birthday. Ms. Duke said, "I wanted to take a photograph of Wes and the cake. Wes said, 'You're going to use that picture against Dad in court. You're the reason he's not here.' He went up and slammed the door. I was frustrated. I said, 'I'm not responsible for the parenting plan. The addiction and the adultery did not favor your Dad. It was his choice to abandon us.' I should not have used the word 'abandon.' I felt he abandoned me. He moved on to another woman. Later, I apologized to the children. I said, 'My feeling is he abandoned me, but he did not abandon you.'"
Dr. Bernet next addressed the phenomenon known as "parental alienation":
The phenomenon of parental alienation is not new; it has been described in the legal literature at least since the 1820s . . . . The children in this family clearly meet the following criteria for this serious mental condition:
● The children have allied themselves strongly with Dr. Duke and have rejected a relationship with Ms. Duke without legitimate justification. In this case, the children's rejection of Ms. Duke is far out of proportion to anything she has done.
●A persistent rejection or denigration of a parent that reaches the level of a campaign. According to all my sources of information -Dr. Duke, Ms. Duke, and Dr. Woodman -- the children persistently criticize their mother and oppose her parenting activities.
●Weak, frivolous, and absurd rationalizations for the child's persistent criticism of the rejected parent. According to Ms. Duke, the children criticize her behaviors, no matter what she does, e.g., whether she laughs, cries, or tries to help them.
●Lack of ambivalence. The children have almost completely positive opinions about Dr. Duke and negative opinions about Ms. Duke.
●Independent-thinker phenomenon. I have not heard this type of thinking from the children themselves, but Dr. Duke insists that it is the children who have perceived Ms. Duke's faults, and he is simply validating their observations.
●Reflexive support of one parent against the other. The children appear to agree with Dr. Duke in almost every situation, without considering the pros and cons.
●Absence of guilt over exploitation of the rejected parent. The children, especially Wesley, do not seem to be bothered by their rude and negativistic behaviors toward Ms. Duke.
●Presence of borrowed scenarios. This report relates to many instances in which the children simply restated Dr. Duke's attitudes and opinions about Ms. Duke.
●Spread of the animosity to the extended family member of the rejected parent. The children recently shunned their maternal grandmother, whose company they previously enjoyed.
This assessment is important because it helps us understand the children's strong alliance with their father and their rejection of their mother, although previously they had an enjoyable, mutually satisfying relationship with her.
In reaching a recommendation for the parenting schedule, Dr. Bernet explained:
In the absence of parental alienation, I would give considerable attention to the children's preferences. However, if the children's strong opinions are simply the result of parental alienation -- driven by the father's active indoctrination of the children against their mother -- I do not take the children's preferences literally.
Many of the mental health professionals who have studied and written about this topic concluded that parental alienation is a form of psychological abuse of the child victims, which is why this pattern of behavior needs to be identified and addressed. If the children's adamant statements to seek more time with their father are caused by his toxic influence on them, one would conclude that Dr. Duke's time with the children should be reduced, not increased.
Dr. Bernet's ultimate recommendations included the following:
1. If Dr. Duke makes a firm commitment to change his negative attitude toward Ms. Duke and his pattern of indoctrinating the children against her, I recommend a comprehensive treatment program with the goal of helping the children achieve healthy, mutually satisfying relationships with both parents.
As part of this plan, Dr. Bernet recommended that Dr. Duke cease taking Vyvanse for ADD because of its possible contribution toward Dr. Duke's overly suspicious attitude toward Ms. Duke. Dr. Bernet also recommended that Dr. Duke attend 12-step AA meetings. However, Dr. Bernet stated the following:
I am not optimistic that Dr. Duke will accept the challenge of this recommendation. In the meetings with me, it was clear that Dr. Duke blamed almost all the children's issues on Ms. Duke. He has testified that he has not purposefully alienated the children from Ms. Duke. Dr. Duke told me that after his experience with [one parenting coordinator], he would never agree to having another parenting coordinator. Dr. Duke told me he had no interest in attending AA meetings.
Dr. Bernet also proposed an alternative course of action:
2. If Dr. Duke is unable or unwilling to make a firm commitment to change his negative attitude toward Ms. Duke and his pattern of indoctrinating the children against her, I recommend that the children's parenting time with their father be very limited and supervised.
After conducting this evaluation, I conclude that Dr. Duke has been determined to win the children to his side of this high-conflict divorce by repeatedly finding ways to make his household seem nurturing, fun, and safe, while making Ms. Duke's household seem neglectful, boring, and dangerous. I predict he will continue to engage in the same campaign at every opportunity. With that in mind, I believe the children should be protected from his toxic influence.
Under Plan Two, Ms. Duke will continue as the primary residential parent for all three children. I recommend that Dr. Duke's parenting time be greatly reduced in duration -- perhaps 4 hours every two weeks -- and that it be supervised. If it becomes clear that Dr. Duke continues to undermine the children's relationship with their mother even during supervised parenting time, I recommend that his parenting time be suspended.
Under Plan Two, there is no expectation that Dr. Duke will change his attitudes and his behaviors. There is no requirement that he have therapy of any type or participate in AA. There is no requirement that he discontinue taking Vyvanse. Under Plan Two, there is no parenting coordinator. Under Plan Two, Dr. Woodman's therapy with the children would focus on helping them learn and understand what happened in their family and adjust to the loss of their relationship with their father.
In addition to the above, Dr. Bernet recommended that Mother have sole responsibility to make decisions with regard to health care, education, extracurricular activities, and religion. Dr. Bernet also recommended that Father have no contact with the children at any time other than during his prescribed parenting time. In other words, Dr. Bernet recommended there be no contact between the children and Father by mail, e-mail, texting, telephone, or through intermediaries.
II. Trial Proceedings
The trial of this case began on May 25, 2011, and was suspended during the third day by agreement of both parties for 120 days. The intended purpose of the suspension was for the family to engage in counseling with Dr. Woodman two to three times per week. Father agreed to have no communication with the children during this time, other than during counseling sessions in which he participated or during his supervised parenting periods, which periods were to be determined by Dr. Woodman.
Toward the end of the 120-day pause in the trial and afterwards, the parties filed additional motions and responses regarding Father's parenting time and related issues. The trial continued in November 2011 for five days and finally concluded in March 2012. Then, in June 2012, Father filed a motion to reopen the proof in the case. The basis for this motion was to introduce a document entitled "Policy Statement on Office-Based Treatment of Opioid Addiction" and to permit additional testimony from Dr. Duke's treating psychiatrist, Dr. Robert Hunt, and his treating psychologist, Dr. Pete Harris. Father also renewed his earlier motion to retain his own expert to interview the children. This request was based on Father's contention that Dr. Bernet's testimony was biased and should therefore be stricken.
The trial court denied Father's motion to reopen proof. The trial court explained that during the parties' divorce in 2009, Father was found to be an addict. Therefore, the trial court concluded, the finding that Father was an addict is now "the law of the case."Regarding this issue, the trial court ruled:
At the trial of these post-divorce proceedings, Dr. Duke acknowledged to this Court that he is chemically dependent on Vyvanse. Accordingly, the March 27, 2012 Policy Statement of the Tennessee Board of Medical Examiners on Office Based Treatment of Opioid Addictions does not constitute a sufficient basis to reopen the proof in this case.
Dr. Duke's analysis of Ms. Duke's attorneys' time records to show the extent of contact between Dr. William Bernet and Ms. Duke's attorney, without more, is insufficient to support a conclusion that Dr. William Bernet was biased, that his testimony should be stricken, or that Dr. Duke should be allowed to employ an independent expert to interview the children and reopen the proof to hear testimony from such expert. Dr. Duke was given full opportunity, prior to and during trial, to inquire of Dr. Bernet as to the nature and extent of all contact that Dr. Bernet had with Ms. Duke and/or her attorney. There has been no showing, whatsoever, that Dr. William Bernet failed to make himself available to Dr. Duke and/or his counsel to the same extent that he was available to Ms. Duke and/or her counsel. Further, the parties agreed, as evidenced by an Agreed Order entered on April 6, 2011, that Dr. Bernet would update parenting evaluations he conducted in September and October 2007, prior to the trial of these post-divorce proceedings. There is absolutely no indication that Dr. Bernet withheld any information from Dr. Duke and/or his counsel, which would invalidate Dr. Duke's agreement to engage Dr. Bernet's services for the purpose of these post-divorce proceedings. "Extensive communication" between counsel for Ms. Duke and Dr. Bernet, without more, is an insufficient basis for the Court to reopen the proof in this case.
A. Trial Court's Memorandum and Order dated November 15, 2012
1. Findings of Fact
The trial court entered a Memorandum and Order on November 15, 2012. The court made the following findings of fact concerning Father's post-divorce conduct:
1. Shortly after the Court's decision regarding the Permanent Parenting Plan Order was filed on June 29, 2009, Dr. Duke began telling the children that they were, in part, to blame for the limited amount of time that he had with them . . . .
2. On July 2, 2009, after Ms. Duke communicated with Dr. Duke by email concerning Caroline and Emily's summer camp schedules and transportation arrangements, Dr. Duke responded concerning camps which were scheduled for the following week as follows:
My time with the children is precious. They will hate you some day for what you have done these last two years. Time will prove out all . . . . Regardless of what all the experts say, the children are aware of what you have been doing.
5. On July 10, 2009, Dr. Duke sent an email to Ms. Duke on the subject of "winning" and stated: "That valedictorian medal hanging in your office comes from cheating. All these years later you still cannot bring yourself to return it to its rightful owner. Some things never change. The children know. Rock bottom on. Helen cares."
6. In the fall of 2009, Ms. Duke was of the opinion that Dr. Duke was not making payments to her which were due pursuant to the Orders of the Court. She went to her church and borrowed $300. Dr. Duke obtained a copy of Ms. Duke's bank account records for this same period. In reviewing those records, Dr. Duke determined that Ms. Duke had made a purchase at a liquor store the same day that she had borrowed money from her church and shared this information with one or more of the children.
10. [Following the parties' divorce], Dr. Duke . . . believed it was more important to "know the truth" than to have a good relationship with Ms. Duke. He further empowered the children by advising them not to argue or fight with Ms. Duke, but to avoid engaging in activities or conversations with her. As a result, the children's behavior toward their mother, on occasion, became passive. Dr. Duke told the children that they had the right not to go to ball games or attend events or go on trips with their mother when they did not want to do so. The children began to shun their mother, refuse to speak to her, would lock themselves in their room, and became generally disrespectful of her.
11. Dr. Duke and the children began to express the same observations and opinions regarding Ms. Duke.
(a) They agreed that Ms. Duke lied at the custody trial in order to get more parenting time.
(c) Dr. Duke and the children found it inconsistent that Ms. Duke would express concern over Dr. Duke's alleged addiction, but at the same time allow him to drive a vehicle when the children were present as passengers.
(d) Dr. Duke accused Ms. Duke of killing Ms. Lineberger's dog or causing it to be killed, and the children accepted Dr. Duke's accusation as being true. Apparently Ms. Lineberger's dog died as a result of being left in an enclosed automobile during hot weather. Even after Dr. Duke apologized to the children for making this accusation, he maintained the opinion that Ms. Duke was responsible for the death of his girlfriend's dog even though he had absolutely no factual basis to support his opinion.
(e) Dr. Duke and the children asserted that he was more capable than Ms. Duke in assisting them with homework; that he was more capable of explaining things; if it were not for him, their grades would suffer; and that Ms. Duke was simply not smart enough to assist them.
(f) Dr. Duke and the children began to assert that Ms. Duke was sick, that she was dangerous, and that she was only nice to the children for the sake of court proceedings.
None of these beliefs or accusations had a factual basis. As a result, the children became hostile and upset toward Ms. Duke. They criticized her for virtually everything that she did. They criticized Ms. Duke over trivial matters. They criticized her for being a stay-at-home mother and not seeking employment outside the home, even though that had been her role throughout their entire lives.
. . . .
26. In January 2011, Dr. Duke accused Ms. Duke, in the presence of the children, of being dangerous, out of control and a threat to them. He encouraged the children to call 911.
27. Dr. Duke told the children that their mother could not be trusted because she tapped their phones and e-mails. There was no credible evidence at ...