Session October 17, 2017
from the Chancery Court for Hamilton County No. 17-0197
Pamela A. Fleenor, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Charles William Bikas, Chattanooga, Tennessee, Pro Se.
Brenyas, Chattanooga, Tennessee, for the appellee, Lorna Mae
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and John W. McClarty, J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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.
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
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
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.
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.
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.
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."
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.
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.
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.
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."
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.
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
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."
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
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.
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 ...