Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gibson v. Bikas

Court of Appeals of Tennessee, Knoxville

February 28, 2018


          Session October 17, 2017

         Appeal from the Chancery Court for Hamilton County No. 17-0197 Pamela A. Fleenor, Chancellor

         This case involves an order of protection sought by the petitioner against the respondent, who is the petitioner's brother-in-law, on behalf of the petitioner and her two minor daughters. The petitioner previously had obtained an order of protection that had expired in May 2016. On March 24, 2017, the petitioner filed a petition seeking a one-year, no-contact order of protection, alleging that, inter alia, since entry of the prior order, the respondent had repeatedly attempted to influence her by following through on threats to obtain custody of the petitioner's two minor daughters. The trial court initially granted an ex parte order of protection as to the petitioner but denied the petition as to the children, questioning whether standing existed because the petitioner did not at that time have physical or legal custody of her daughters. Following a subsequent bench trial, the trial court found that the petitioner had standing to petition for an order of protection on behalf of her children pursuant to Tennessee Code Annotated § 36-3-602(b). Also finding that the respondent posed a danger to the petitioner and her children, the trial court extended the ex parte order into a one-year, no-contact order of protection against the respondent on behalf of the petitioner and modified the order of protection to include the petitioner's children. The court also awarded to the petitioner reasonable attorney's fees. The respondent appeals. Discerning no reversible error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Charles William Bikas, Chattanooga, Tennessee, Pro Se.

          Emily Brenyas, Chattanooga, Tennessee, for the appellee, Lorna Mae Gibson.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         At issue on appeal is an order of protection sought by the petitioner, Lorna Mae Gibson, against the respondent, her brother-in-law, Charles William Bikas. Ms. Gibson had obtained a previous order of protection, which was granted by the Hamilton County Chancery Court ("trial court"), with Chancellor Pamela A. Fleenor presiding, on May 19, 2015 ("2015 OP"). Although the 2015 OP is not in the record on appeal, it is undisputed that in the 2015 OP, the trial court required Mr. Bikas to have no contact with Ms. Gibson or her two minor daughters ("the Children"), who were six and two years of age at the time the 2015 OP was entered. The 2015 OP expired on May 19, 2016, without Ms. Gibson's having filed a petition for an extension.

         The series of events underlying the 2015 OP began in the fall of 2014 when a referral was called in to the Department of Children's Services ("DCS") against Ms. Gibson, who had been residing with the Children. At the time of the DCS referral, the Children were placed in the temporary custody of Ms. Gibson's sister, Jessica Bikas, and her sister's husband, Mr. Bikas. After approximately two months, Mr. and Ms. Bikas separated, and Ms. Bikas filed a petition for an order of protection against her husband, alleging that he had threatened violence against her if he lost custody of the Children. In March 2015, the youngest child, N.M., was placed with paternal relatives, and the oldest child, A.W., entered DCS custody and was placed with non-relative foster parents. It is undisputed that Ms. Bikas's petition for an order of protection was subsequently dismissed.

         Later in the spring of 2015, Mr. Bikas, still separated from Ms. Bikas, co-signed a lease with Ms. Gibson concerning an apartment. Ms. Gibson subsequently alleged that Mr. Bikas repeatedly tried to coerce her into a romantic relationship by threatening to remove his name from the lease and threatening to take legal action to obtain custody of the Children. Ms. Gibson filed the petition for the 2015 OP the day after Mr. Bikas allegedly stayed overnight in her apartment without permission and allegedly sexually molested her. Although on appeal in this action, Mr. Bikas vehemently denies Ms. Gibson's allegations underlying the 2015 OP, he acknowledges that he consented to the trial court's entry of the original order without an evidentiary hearing. Mr. Bikas asserts on appeal that he agreed to the 2015 OP "so that he could break the apartment lease" with Ms. Gibson.

         In the meantime, A.W. was residing in the spring of 2015 with her foster parents within the same school district where she had previously lived with Ms. Gibson. A.W. resumed attendance at the elementary school where she previously had been a student, and she resumed speech and language therapy with Ginger Vitrano, a speech and language pathologist who had provided therapy to A.W. in the past. Ms. Vitrano testified in this matter that she became concerned after observing changes in A.W.'s behavior, particularly changes denoting sexually reactive behavior. Ms. Vitrano subsequently applied with DCS to provide a foster placement for A.W. Upon approval, Ms. Vitrano provided foster care to A.W. for approximately eighteen months. A.W. was eventually placed in the custody of her biological father, who is not a party to this action. Ms. Gibson's younger daughter has remained in her original foster placement since the Children's removal from Ms. Gibson's home. At some point in 2015, Mr. and Ms. Bikas reconciled.

         Ms. Gibson commenced the instant action, initially acting pro se, by filing a petition for an order of protection against Mr. Bikas on March 24, 2017. She again sought a one-year order requiring Mr. Bikas to have no contact with her or the Children, who were by then eight and four years of age. In her petition, Ms. Gibson repeated the factual allegations underlying the 2015 OP and averred that since entry of the 2015 OP, Mr. Bikas had continued his attempts to harass and influence her by repeatedly attempting to gain custody of A.W. for allegedly illicit purposes.

         Upon Ms. Gibson's petition, the trial court, with Chancellor Jeffrey M. Atherton presiding by interchange, entered an ex parte order of protection as to Ms. Gibson. The court denied an ex parte order of protection as to the Children and set a hearing for April 3, 2017, directing Ms. Gibson to show cause why the Children required protection from Mr. Bikas. The court stated the following in this regard: "Question exists as to standing as children do not appear to be in physical or legal custody of [Ms. Gibson]."

         By the time of the April 3, 2017 hearing, Ms. Gibson was represented by her current counsel, and Mr. Bikas was represented by attorney Mark Whittenburg. Following a hearing, during which Ms. Gibson's counsel requested a continuance because Ms. Gibson had been involved in an automobile accident while on her way to the courthouse, the trial court, with Chancellor Fleenor again presiding, entered an order resetting the hearing for April 10, 2017. Although Mr. Bikas insists on appeal that he did not agree to this continuance, the trial court's order memorializing the grant of continuance, entered on April 7, 2017, states that it did so upon the facts underlying Ms. Gibson's absence and "agreement by the Parties."

         The trial court then conducted a bench trial on April 10, 2017, during which the court heard testimony from the parties, Ms. Bikas, and Ms. Vitrano. Attorney Laura E. Banks, who had been appointed as a guardian ad litem ("GAL") to represent the Children's best interests in the separate custody case, appeared on behalf of the Children. Ms. Gibson testified regarding the allegations underlying the 2015 OP, stating that Mr. Bikas had "a bad obsession with [her] and especially [her] oldest daughter, [A.W.]" She further testified that Mr. Bikas "had continuously threatened" to "take [her] name off the lease" of the apartment for which he had co-signed and had told her that once she was homeless, he was "going to go and get custody of [her] child" and she would have "to do what [he said]." Ms. Gibson explained that once the 2015 OP expired, Mr. and Ms. Bikas had filed petitions seeking custody of the Children and termination of her parental rights to A.W. She acknowledged that the Children had been removed from her custody in the past by DCS. She stated that she had not filed for an extension of the 2015 OP due to her own medical condition at the time.

         Ms. Gibson also testified that Mr. Bikas had described an incident to her during the time period he and Ms. Bikas had custody of the Children when Mr. Bikas was showering at the YMCA, and A.W. "busted in and grabbed his penis." Ms. Gibson explained that the YMCA had a daycare facility and maintained that she could not understand why Mr. Bikas had not taken A.W. to daycare rather than bringing her near the men's shower room. Ms. Gibson further testified that during the time that the 2015 OP was in effect, Mr. Bikas would walk by the convenience store where Ms. Gibson was working, "just slowly walking, stalking at the work." She acknowledged that the convenience store was on the way to Mr. Bikas's workplace so that she did not believe his walking by the store technically violated the 2015 OP. Ms. Gibson maintained that she was "terrifie[d]" by statements Mr. Bikas had made that he wanted to reunite with her and that she was concerned for the safety of the Children.

         Ms. Vitrano testified that in her capacity as a speech and language pathologist with Hamilton County Schools, she had worked with A.W. in the fall of 2014 before A.W. was removed from Ms. Gibson's custody and again when A.W. returned to the same school after she had resided with the Bikases and then been removed from their home. Ms. Vitrano explained that she also had extensive experience observing A.W.'s behavior because she had become A.W.'s foster mother for several months in 2015 after A.W. had left the Bikases' home. When questioned regarding how A.W.'s behavior after living with the Bikases compared to her behavior before being placed with them, Ms. Vitrano stated that although A.W. had been developmentally delayed prior to her placement with the Bikases, she did not display sexually reactive behavior until after that placement. She explained:

[W]hen [A.W.] was placed with the Bikases and then she came back to our school, she was every single afternoon in the office crying and moaning in her sleep. She would have really bad dreams, and the school secretary spent a lot of time with her up for the front office. She couldn't get along with the other students. She had a lot of sexual reactivity. She would undress herself in the bathroom repeatedly. She would touch herself in class. She would try to touch others. She would touch adults.

         Ms. Vitrano also testified that A.W. had indicated to her that Mr. Bikas "took her picture and - of her privates, and that he touched her."

         Mr. Bikas testified that except for court appearances, he had not seen Ms. Gibson since she had filed the petition for the 2015 OP. He further testified that he had filed a total of four petitions seeking custody of A.W. First, he and Ms. Bikas filed the initial petition in the fall of 2015 to request custody of the Children when DCS removed the Children from Ms. Gibson and placed them with the Bikases. He indicated that when DCS removed the Children from his home, the removal was due to "marital discord." Second, Mr. Bikas stated that when Ms. Gibson was seeking to regain custody of the Children, she requested that Mr. Bikas file a second petition "in case hers didn't work, " but he stated that this second petition was "short-circuited" by Ms. Gibson's petition for the 2015 OP.

         According to Mr. Bikas, he and Ms. Bikas filed a third petition for custody of A.W. in March 2015, purportedly on advice of former counsel, but that petition was denied because the 2015 OP was still in effect. He explained that he and Ms. Bikas filed a fourth petition for custody of A.W. in May 2016. Mr. Bikas testified that the juvenile court magistrate had told him in 2015 to refile the petition once the 2015 OP had expired but that then the magistrate had "stabbed him in the back and declined" the May 2016 petition. Mr. Bikas asserted that upon his request for a rehearing of the fourth custody petition before the juvenile court judge, the juvenile court judge had "stalled [him] for six months." Mr. Bikas further testified that he had then appealed the fourth custody petition to the circuit court. When questioned regarding whether he was still seeking custody of A.W. at the time of trial in the instant matter, Mr. Bikas answered in the affirmative and stated that the parties "have trial tomorrow about it in circuit court." Mr. Bikas acknowledged that he previously had "filed a motion saying that [he] hope[d] that [Ms. Gibson], her sister, and [he] could reconcile and be a family again."[1]

         Ms. Bikas testified that to her knowledge, Mr. Bikas had not initiated communication with or seen Ms. Gibson since the 2015 OP was entered except for courtroom appearances. Ms. Bikas acknowledged that she had filed a petition requesting an order of protection against her husband on March 18, 2015, in which she had alleged that he told her "if we lost our two nieces as far as custody with him that I needed to watch my back." When questioned by the trial court concerning her allegation against her husband, Ms. Bikas responded: "He did so with [Ms. Gibson], but they were angry at the time."

         Upon determining that "credible evidence" indicated that Mr. Bikas was currently "a threat to the safety" of Ms. Gibson and the Children, the trial court granted Ms. Gibson's petition in an order entered April 10, 2017 ("2017 OP"). The 2017 OP had the effect of extending the ex parte order into a one-year, no-contact order of protection on behalf of Ms. Gibson and modifying the ex parte order to include the Children in the one-year, no-contact order. The court had ruled orally during trial that Ms. Gibson's status as a parent afforded her standing to petition on behalf of the Children, pursuant to Tennessee Code Annotated § 36-3-602(b), despite her lack of current legal or physical custody. Finding that Mr. Bikas had done "the things listed in the Petition, " the court adopted the allegations in the petition by reference into the 2017 OP. The court further found in the 2017 OP that Mr. Bikas had "stalked" and "threatened" Ms. Gibson and had "sexually molested" and "sexually abused" A.W. The court also ordered Mr. Bikas to pay all court costs and attorney's fees.

         Ms. Gibson's counsel filed an affidavit of attorney's fees on April 19, 2017, requesting a total of $864 in attorney's fees and expenses. Mr. Bikas, now acting without benefit of counsel, filed a notice of appeal from the 2017 OP on May 3, 2017. He concomitantly filed a response to the affidavit of attorney's fees, asserting, inter alia, that unless this Court were to affirm the trial court's decision, he would not pay any attorney's fees awarded by the trial court. Mr. Bikas also attached to his response several "exhibits" that had not been presented during trial.

         Following a hearing conducted on June 19, 2017, the trial court granted Ms. Gibson's motion for an award of attorney's fees and expenses in the amount of $864, entering an order to this effect on June 27, 2017. On appeal, Mr. Bikas asserts in his description of the facts that the trial court denied his request for the June 19, 2017 hearing to be continued without affording him "an opportunity to present his case." He also requests in the conclusion of his principal brief on appeal that this Court "[d]eny the attorney fees for [Ms. Gibson] concerning the April 10th, 2017 hearing." However, Mr. Bikas has not raised an issue regarding the award of attorney's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.