In re Marriage of Catoire and Higgins ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,249
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
MICHELE CATOIRE,
Appellant,
and
JAMES MICHAEL HIGGINS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; ERICA K. SCHOENIG, judge. Opinion filed March 13, 2020.
Affirmed.
Michele Catoire, appellant pro se.
No appearance by appellee.
Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.
PER CURIAM: Michele Catoire (Mother) and James Michael Higgins (Father)
were involved in a very contentious divorce. In an agreed parenting plan, Father was
granted primary custody of their two children. Over a period of several years, the parties
continued to engage in continuous litigation relating to custody of the children.
Eventually, the district court held a four-day trial to address the parties' various motions.
After the trial, the district court granted Father primary custody of the children.
The court also considered evidence relating to money the parties spent on the children
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and ordered Mother to reimburse Father for some of his expenses. Mother files this pro se
appeal primarily arguing that the district court either failed to consider evidence or did
not give evidence its proper weight. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother petitioned for divorce from Father in May 2013. An agreed permanent
parenting plan was filed in January 2015. In broad strokes, the parenting plan granted
Father sole custody for all medical decisions relating to the care of the parties' son,
D.C.-H., joint custody of D.C.-H. in general, and shared parenting time of their daughter,
C.C.-H. The parties also agreed that "necessary medical expenses" that were not covered
by insurance should be split by the parties with Father paying 60% and Mother paying
the remaining 40%. The parties were required to keep records of their individual
expenses and reimburse the other as necessary to achieve the agreed upon allocation of
medical bills. The parties also agreed that D.C.-H. and C.C.-H. would meet with a
psychiatrist and psychotherapist to be chosen by the agreement of the parties.
Additionally, the parties agreed to individually go to mental health counseling and follow
recommendations. The divorce was granted in July 2015.
The agreed parenting plan and subsequent divorce did little to alleviate the
animosity between the parties. As the district court noted in a June 2018 order, the parties
"have been continuously involved in high-conflict litigation since the case was filed on
May 14, 2013." According to the district court, the litigation was centered around the
parties' disagreements regarding custody and parenting of their children.
In Spring 2016, C.C.-H. was taken to a mental health facility because her therapist
feared C.C.-H. was suicidal. According to the therapist, C.C.-H. reported that she feared
Mother and that Mother had hit her and called her horrible names. C.C.-H. said she felt
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unsafe in Mother's home. As a result, the parties agreed that the children would primarily
reside with Father, and Mother's parenting time was suspended.
Since Spring 2016, the parties and their children have worked with several mental
health providers in an attempt to achieve a sense of normalcy for the family. There were
disagreements between Mother and Father as to who would provide mental health care
and what the goals of treatment should be. One area of contention between the parties
was D.C.-H.'s diagnoses of attention deficit hyperactivity disorder (ADHD) and
oppositional defiant disorder (ODD). Mother did not believe that D.C.-H. had or should
be medicated for ADHD. Mother would tell her family therapist, in the presence of D.C.-
H., that D.C.-H. did not need medication. Mother did not believe that expressing her
thoughts on the matter, while D.C.-H. was present, was harmful. Father believed that
D.C.-H. needed medication to control his ADHD.
One of D.C.-H.'s mental health providers explained that ODD caused D.C.-H. to
be "argumentative, challenging, not cooperative with parental guidance, demands,
structure and so on." The same mental health provider explained that while medication
could be prescribed for the ADHD, ODD is a behavioral diagnosis which requires
behavioral intervention as opposed to medicinal treatment.
With and without medication, D.C.-H. proved to have problems at home and in
school. D.C.-H. was suspended from school for behavioral issues multiple times. Several
of the suspensions were the result of D.C.-H. inappropriately touching female students.
Ultimately, D.C.-H. was expelled for inappropriately touching a female student. The
parties disagreed on what steps should be taken to ensure D.C.-H. would not continue to
inappropriately touch other people.
Mother requested that D.C.-H. be seen by someone who was trained to treat sex
offenders, as opposed to a standard mental health provider. Mother seemed to blame
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D.C.-H.'s behavior, at least at some level, on Father. Throughout the case, Mother
maintained that Father was abusive to her and the children. One witness testified that
Mother fit the psychological profile of someone who had been abused. Several witnesses
testified that the children reported that Father was not abusing them. However, there were
indications that there might have been abuse in the past. D.C.-H. reported to at least one
of his therapists that he was no longer being abused by Father.
There was also evidence presented that indicated Mother abused the children.
Mother said in a deposition that she used a wooden spoon to spank the children. She also
acknowledged weighing C.C.-H. "approximately every other day" to monitor her weight.
Mother said that she later learned that C.C.-H. was bothered by the weighing but "at the
time, she had no problems." Mother refused to acknowledge the alleged abuse, instead
saying that the children were being told by someone that she abused them. Mother also
refused to apologize for her actions towards the children. In contrast, Father appears to
have acknowledged his previous abuse and apologized to his children.
An additional issue raised by the parties was the allocation of various expenses
related to the care of the children and the various attorney fees incurred throughout the
litigation. It appears that both parties raised various motions requesting different fees and
expenses to be allocated to the other party. The district court denied each request for
attorney fees to be assessed on the other party. However, the district court did reassess
what the parties owed each other for medical expenses under the agreed parenting plan.
The court determined that Mother owed Father $6,444.79, while Father owed Mother
$3,720.69, for non-covered medical expenses. The court offset the amounts which
resulted in the court ordering Mother to reimburse Father $2,724.10.
Mother timely appeals the district court's decision.
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ANALYSIS
Mother raises several issues on appeal. In each issue, Mother essentially
challenges the district court's factual determinations and conclusions based on those facts.
"Given the district court's unique vantage point of what is often an emotionally charged
situation in child custody disputes, an appellate court generally will not overturn such
decisions unless the court abused its discretion." In re Marriage of Bahlmann, 56 Kan.
App. 2d 901, 903, 440 P.3d 597 (2019).
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018).
When a party challenges the evidence the district court relied on to reach its
decision, this court reviews the evidence in a light most favorable to the prevailing party
to determine if the district court's factual findings are supported by substantial competent
evidence and whether those findings support the court's legal conclusion. In re Marriage
of Bahlmann, 56 Kan. App. 2d at 903. This court does not "reweigh evidence, pass on
witness credibility, or redetermine questions of fact." 56 Kan. App. 2d at 903-04.
Given this standard of review, this court must determine whether substantial
competent evidence supports the district court's decision and, if so, whether the district
court abused its discretion in reaching its decision.
DID THE DISTRICT COURT ERR BY NOT ORDERING D.C.-H.
TO RECEIVE SEXUAL OFFENDER COUNSELING OR TREATMENT?
During the trial, Mother made it clear that she wanted D.C.-H. to be seen by
someone trained to treat sex offenders. The district court did not do so and, in fact, did
not mention the request in its written order. Generally, a party must object to inadequate
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findings of fact and conclusions of law to allow the district court an opportunity to
correct alleged inadequacies. Where no objection is made, appellate courts presume the
trial court found all facts necessary to support its judgment. Foster v. Stonebridge Life
Ins. Co., 50 Kan. App. 2d 1, 11-12, 327 P.3d 1014 (2012). The record does not show that
Mother objected to the district court's findings and conclusions.
At trial, no witness other than Mother indicated that D.C.-H. should be seen by
someone who specialized in sexual offender treatment. Rachel Assal, a licensed clinical
social worker, began meeting with D.C.-H. in January 2016. According to Assal, she had
experience with, and felt comfortable, treating children that had been physically or
sexually abused or were abusers themselves.
There was substantial competent evidence supporting the district court's decision
to not require D.C.-H. to attend mental health services with someone who specialized in
sexual offender treatment. Mother did not object to the district court's factual findings.
There was no testimony presented—outside of Mother's stated desires—that D.C.-H.
needed specialized treatment. Instead, Assal testified that she felt she could continue
treatment of D.C.-H. The district court ordered D.C.-H. to continue in individual therapy
with Assal. The district court did not abuse its discretion by not ordering D.C.-H. to
attend specialized sexual offender treatment.
DID THE DISTRICT COURT ERR BY GRANTING FATHER
SOLE LEGAL CUSTODY AND GRANTING MOTHER PARENTING TIME?
Mother argues the district court ignored her allegations of abuse by Father when it
granted Father primary custodial care of the children. The record does not support
Mother's claim.
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When deciding issues of legal custody, residency, and parenting time the district
court is required to consider several statutory factors. K.S.A. 2019 Supp. 23-3203(a)(1)-
(18). One factor explicitly requires the district court to consider "evidence of domestic
abuse." K.S.A. 2019 Supp. 23-3203(a)(9).
The district court considered all the claims of abuse. The district court noted that
both parties alleged the other party was abusive. The court also credited the Guardian Ad
Litem's statement that both children were subjected to yelling and emotional abuse on a
daily basis. The court also considered Mother's statements alleging Father was physically,
mentally, and emotionally abusive toward the children during the marriage. The court
also noted that there was no evidence presented that Father continued to abuse the
children. The court reasoned that it must consider "where the parties are now, and what
has happened since they were divorced."
The district court found that Father had apologized for his past actions. On the
other hand, Mother made minimal progress in addressing her own abuse of the children.
The court emphasized that Mother "has not apologized to the children for her actions, and
in fact, has yet to acknowledge that she has any need to apologize."
Mother also argues the district court erred by considering the desires of D.C.-H. in
determining custody arrangements. Mother suggests that D.C.-H. was brainwashed into
saying that he wanted to live with Father. In support, Mother cites to K.A. v. T.R., 86
Mass. App. Ct. 554, 18 N.E.3d 1107 (2014), where the Massachusetts Court of Appeals
examined an issue of child custody after the father had been accused of physical abuse.
The mother testified that the father was physically abusive toward her throughout the
marriage, but the district court ultimately granted the father primary custody of the
children. This case has little precedential value and is actually supportive of the district
court's determination of custody.
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Part of the Massachusetts District Court's reason for granting father primary
custody was based on testimony that the mother had become abusive toward the children
and the children felt safer with their father. 86 Mass. App. Ct. at 558. The mother
presented expert testimony that suggested the children were "brainwashed" by their father
into not wanting to stay with mother and that domestic violence could play a significant
role in "brainwashing." 86 Mass. App. Ct. at 558-59, n.9. But the district court rejected
the expert's opinion, finding there was no credible evidence to show that the children
were "brainwashed" by the father. 86 Mass. App. Ct. at 559. The appellate court affirmed
the district court's decision, finding that "the present case was not about punishing a party
for past bad behavior, but was about deciding what was best for the children going
forward." 86 Mass. App. Ct. at 565. The appellate court noted that the district court was
not required to accept the testimony of mother's expert. The court reasoned that the
evidence supported the district court's ultimate decision to give the father primary
custody of the children. 86 Mass. App. Ct. at 566.
In the present case, Mother did not offer any expert testimony that the children
were "brainwashed" or coerced into stating they desired to live with Father. The district
court could, and indeed was required to, consider "the desires of a child of sufficient age
and maturity as to the child's custody or residency." K.S.A. 2019 Supp. 23-3203(a)(3).
The court did so here. As stated above, this court will not reweigh the testimony or the
credibility of the witnesses. In re Marriage of Bahlmann, 56 Kan. App. 2d at 903-04. The
district court heard the evidence, weighed the factors which Mother complains of on
appeal—along with several other factors—and granted Father sole custody. The district
court's decision was not based on an error of law or an error of fact. There is nothing to
show the district court's decision was unreasonable. The district court did not abuse its
discretion. See Eidenberg, 308 Kan. at 893.
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DID THE DISTRICT COURT ERR IN
APPORTIONING EXPENSES BETWEEN THE PARTIES?
The district court reapportioned various expenses by the parties and ultimately
ordered Mother to reimburse Father $2,724.10. Mother argues the district court erred
because Father did not follow the express terms of their original parenting agreement.
The district court reached its decision after considering documents that are not
before this court on appeal. Mother bears the burden for designating a record sufficient to
present her points and establish her claim. See Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013). She fails to do so here. This court cannot
properly examine the district court's decision with the scant evidence available. Without
the documents, this court cannot say the district court erred.
DID THE DISTRICT COURT ERR BY NOT
CONSIDERING SEVERAL FACTORS RAISED BY MOTHER?
Mother's final argument on appeal appears to suggest that the district court ignored
several facts relating to Father's actions before the trial. Mother suggests that Father
failed to follow court orders or consult with Mother regarding D.C.-H.'s care. The district
court heard evidence from both parties—including evidence that portrayed Father in a
less than favorable light. The court noted that Father did fail to follow certain orders. The
court also noted that Mother contributed to several of the problems between the parties.
The district court considered multiple factors when it determined that the children
should live with Father. When viewing the evidence in a light most favorable to Father,
there was substantial competent evidence to support the district court's decision. Mother's
argument is essentially asking this court to reweigh the evidence presented at trial, which
this court cannot do. See In re Marriage of Bahlmann, 56 Kan. App. 2d at 903-04. The
district court's decision was not based on an error of law or an error of fact. And the
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district court's decision was reasonable under the circumstances. The district court did not
abuse its discretion by granting Father primary custody of the children and granting
Mother visitation. See 56 Kan. App. 2d at 903.
Affirmed.
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