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Kirsch v. Kirsch

Court of Appeals of Louisiana, First Circuit

July 29, 2015

KARL JOSEPH KIRSCH
v.
KRISTIN KAY KIRSCH

          Appealed from the 22nd Judicial District Court. In and for the Parish of St. Tammany, State of Louisiana. Case No. 2011-15863. The Honorable Dawn Amacker, Judge Presiding.

         Nanine McCool, Mandeville, Louisiana, Counsel for Defendant/Appellant, Kristin Kay Kirsch.

         James C. Rather, Jr., Mandeville, Louisiana, Counsel for Plaintiff/Appellee, Karl Joseph Kirsch.

         BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

          OPINION

Page 418

          [2015 0281 La.App. 1 Cir. 2] THERIOT, J.

         In this child custody case, the mother appeals a judgment in which the trial court granted sole custody of the parties' minor children to the father. For the following reasons, we affirm the judgment of the trial court.

         FACTS & PROCEDURAL HISTORY

         This matter involves a protracted and contentious custody dispute between Karl Kirsch and Kristin Kirsch [together, " the parties" ]. The parties were married on January 12, 2001. Two children were born

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of the marriage: MK[1] born August 16, 2001, and SK, born December 20, 2003. The parties separated and ceased living together in September 2011.[2]

         Kristin filed a complaint with the Department of Children and Family Services [" DCFS" ] on September 8, 2011, alleging that Karl had been physically abusive to her and physically and sexually abusive to the children. DCFS closed the case, finding it was inconclusive for sexual abuse, invalid for physical abuse, and valid for lack of supervision on the part of both parents.

         On September 14, 2011, Kristin filed a petition for protection from abuse, alleging that Karl had physically abused both her and the children. Following an October 19, 2011 hearing, the parties reached a consent agreement that enacted an 18-month protective order against Karl in favor of Kristin, but not in favor of the children. The consent agreement further granted Kristin temporary custody and provided for Karl to have supervised visitation until he completed an anger management course and a parenting course.

         [2015 0281 La.App. 1 Cir. 3] Karl filed a Petition for Divorce pursuant to La. C.C. art. 102 on October 12, 2011, requesting joint custody of the children and to be the designated domiciliary parent.

         On November 28, 2011, and December 8, 2011, DCFS received reports of suspected child abuse or neglect by Karl against the children and opened investigations into the reports. There was some dispute as to who filed the November 28, 2011 report, but it appears that both reports were filed by Kristin. The November 28, 2011 complaint was closed with notes reading:

Sexual abuse disclosures were never consistent and the boys appeared to be coached... Mrs. Kirsch's family members do not believe the abuse occurred... Both boys are disclosing sexual abuse by their father. The disclosures are not consistent... The boys say they are afraid of their father but do not act fearful in front of him.

         On December 7, 2011, Kristin filed an Answer and Reconventional Demand in forma pauperis, seeking sole custody with supervised visitation pursuant to the Post-Separation Family Violence Relief Act, La. R.S. 9:361 et seq. [" the Act" ], spousal support, and child support. Kristin alleged that Karl was not entitled to joint custody due to a history of family violence against Kristin and the children.[3]

         The initial Hearing Officer Conference [" HOC" ] was held on December 13, 2011. Recommendations were issued awarding joint custody to both parents, with Kristin as the designated domiciliary parent.[4] A

Page 420

 new [2015 0281 La.App. 1 Cir. 4] visitation schedule was agreed upon, and Karl's visitation was to be supervised by his mother. Regarding Kristin's request for an injunction pursuant to the Act, the HOC Report/Recommendations provided that the request " must be tried."

         On January 6, 2012, Karl filed an Answer to Kristin's Reconventional Demand, in which he sought sole custody of the two minor children because Kristin had made false allegations of neglect and abuse against him, and alleging that Kristin should only be awarded supervised visitation with the children.

         The second HOC was held on February 13, 2012, and was memorialized in a February 15, 2012 Consent Judgment that awarded temporary joint custody, lifted the supervision requirements on Karl's visitation, and named Kristin the domiciliary parent. Regarding Kristin's request for an injunction pursuant to the Act, the HOC Report/Recommendations provided that the request " shall be addressed at the follow-up" HOC.

         On February 29, 2012, DCFS notified Karl by letter that the DCFS investigations into the November 28, 2011, and December 8, 2011, complaints had been completed, and there was not sufficient information to support a finding of abuse or neglect.[5]

         On April 20, 2012, Karl subpoenaed the records of the Slidell Police Department [" SPD" ]. He also filed a motion to unseal the DCFS records and compel the deposition of Detective Brian Brown, alleging that Kristin had repeatedly falsely accused Karl of physical and sexual abuse of the children [2015 0281 La.App. 1 Cir. 5] in an attempt to improperly influence the custody and related financial determinations. He further alleged that the requested information was critical to his claim for sole custody.

         An HOC report dated June 27, 2012, summarizing the June 22, 2012 HOC, reflected Karl's allegations that Kristin had falsely accused him of sexual abuse of the children. It was Kristin's testimony that the children had made alarming statements, which she reported to the appropriate authorities. Kristin's reports of sexual abuse had been made prior to the February 13, 2012 HOC, and all resulting investigations had been closed by the time of the June 22, 2012 HOC; thus, the June 27, 2012 HOC Report recommended joint custody, with Kristin as the domiciliary parent, and denied Kristin's request for an injunction pursuant to the Post-Separation and Family Violence Relief Act.

         Karl filed an objection to the June 27, 2012 HOC report recommendations with the trial court, specifically objecting to the award of joint custody, the designation of domiciliary parent, and the visitation schedule. Karl filed a Pre-Trial Memorandum alleging that since the fall of 2011, Kristin had been filing and reporting false allegations of child abuse, both sexual and physical, against him for the sole purpose of influencing the court's determination of pending custody matters. Karl maintained that Kristin submitted false reports to the City of Slidell, DCFS, and various hospitals and medical facilities in Mississippi and Louisiana, subjecting both children to invasive, humiliating, and potentially damaging physical examinations and forensic evaluations. Karl further alleged that Kristin had coached the children into falsely accusing him of sexual abuse. Karl

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alleged that Kristin's rights to custody, unsupervised visitation, child support and spousal support should be terminated as a result.

         [2015 0281 La.App. 1 Cir. 6] Following a July 24, 2012 hearing before the trial court, an Interim Consent Judgment upheld the previous joint custody arrangement with Kristin as the domiciliary parent. The judgment also ordered both parties to submit to a full mental health examination by Dr. Alan James Klein, who would be granted access to all court records. A hearing to establish temporary custody was set, but was twice continued because Dr. Klein was unable to complete his evaluations and issue reports before the hearing date.

         The matter went to trial on August 5 and 7, 2013. The trial court rendered its decision in open court on August 7, 2013, and gave extensive oral reasons for judgment. On August 8, 2013, the trial court signed a judgment consistent with its August 7 ruling, granting Karl sole custody of the children and further providing that upon presentation by the parties, the court would execute the judgment addressing the other issues upon which it had ruled. On September 5, 2013, Kristin filed a Motion and Order for Devolutive Appeal from the final judgment rendered in the action.

         On September 9, 2013, the trial court signed a second judgment reiterating that Karl had been awarded sole custody, and, among other specific orders, provided that Kristin would have only supervised visitation on alternating weekends, and that neither party should publicly disclose any facts or details of the proceedings nor discuss them with the children.

         STANDARD OF REVIEW

          The court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. In determining the child's best interest, the court shall consider all the factors that are relevant to that specific case. La. C.C. art. 134. The trial court's decision in child custody matters is entitled to great weight and it will not be overturned absent a clear [2015 0281 La.App. 1 Cir. 7] showing of an abuse of discretion. Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La. 1986).

         DISCUSSION

         Assignment of Error No. 1

         In her first assignment of error, Kristin argues that the trial court erred in awarding sole custody to Karl and permitting only supervised visitation by Kristin because Karl failed to put forth evidence that such was in the best interests of the children, and because Karl failed to prove that Kristin coached the children to make false allegations against him.

         Kristin also challenges the qualification of Investigator Brian Brown of the Louisiana Department of Justice, who testified regarding his belief that Kristin coached the children, as an expert witness in " criminal investigation of the sexual abuse of children." Brown was the SPD Detective who investigated the allegations of sexual abuse against Karl. However, as Kristin failed to object to the ...


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