### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 25, 1999 Session
ROBERT VAUGHN ODOM v. MAR Y JO ODOM
Appeal from the Chancery Court for Dickson County No. 3564-94 Allen W. Wallace, Judge

No. M1999-02811-COA-R3-CV Filed December 5, 2001

This appeal involve s a bittercustody dispute over three children between the age s of nine and fourteen. During the divorce proceeding i n the Cha ncery Court for Dickson County, the parties agreed that the mother would have custody of the children and also agreed on visitation arrang ements that accommodated the mother’s planned move to another state. Several months after the entry of

the divor ce decr ee, the f ather pe titioned to

change cust o dy and to hold the moth er in contempt for interfering with his relationship with the children. During the ensuing three yea rs, the parties traded a

ll egationsof sexua

l and physi cal abus e of the c hildren a nd other m

isconduct. Following a bench trial in December 1998, the trial court found that therehad been a material change in the children’s circumstances and granted the f ather custody of the children. On this appeal, the mother assertsthat she was denied due process by the trial court’s refusal to require the parties a nd their children to undergo a psychological examination and that the trial court unl awfully

delegated its judicial authority to a psychologist who had been counseling the children. We have de termined that the mother

received an essentially fair hear ing on this custody dispute and, therefore, affirm the trial cou rt. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cha

ncery Court Affi rmed

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which A LAN E. H IGHERS and D AVID R. F ARMER , JJ., joined.

Jeffre y L. Levy, Nashville , Tennes see, for the appe llant, Mar y Jo Odom.

Karla C. Hewitt, N ashville, Tenness ee, for the appe llee, Robe

rt Vaugh n Odom.
OPINION

I. Robert Vaughn Odom and Mary Jo Fielder were married in October 1986 in Georg ia, less than one week before Mr. Odom’s twenty-four th birthday. Ms. Odomwas already twenty-four years oldand had three-year-old and five-ye ar-old s ons from a prior marriage. Between 1987 and 1992,1 The se stat ements led t o an investi gation by the Tenness ee Bureau of Investi gation. This inves tigat ion was clos ed in November 1997 wi thout concl usive findi ngs or r ecommendation f or pros ecuti on. -2- the parties had two sons and a daughter of their own. Mr . Odom joined the Dickson Police Department in 1993, and Ms. Odom worked as a part-time licensed pr actical nurse.

The parties separated in October 1994. On November 4, 1994, Mr. Odomfiled a petition for divorce in the Chan

cery Cou rt for Di ckson Coun

ty. Ms . Odom coun terclaimed for divorce and soughtcustody of

the part ies’ three childr

en pending the tria

l. On May 24, 1995, the parties signed
a marital dissolution agreement that, among other things, granted sole custody of the ch ildren to M s. Odomand directed

Mr. Odom to pay $728 per month in ch

ild suppor t. Mr. Odo m’s visita

tion rights
were establish

ed to acc ommodate

Ms. Odom’s planned move to West Virginia. On May 26, 1995, the trial court filed a final divorce decree incorporating the parties’ marital dissolution agreem ent.

Ms. Odom and t

he parti es’ three children mo ved to Parkersburg, West Virginia shortly after the entry of the final divorce decree. Mr . Odom soon married Andrea Biele, a nurse with asix-yearoldson. Ms. Biele and her former husband had been friends of

the parties while they were married and were divorced approximately four months befor e the parties obtained their divorce.

Less than three months after the entry of the final divorce decree, Mr. Odom petitioned the trial court to change custody and to hold Ms. Odom in c ontempt fo r obstructing his tel ephone c alls to his children and for refusing to pay her share of his visitation travel expenses. He also alleged that Ms. Odom, contrary to the mar ital dissol ution agr eement, “repea

tedly talk ed nega tivelyabout him to the children” in an effort to de stroy his r ela tionship with the chi ldren. Following a hearing in November

1995, the trial court entered an order on Januar y 3, 1996, denying Mr. Odom’s petition.

While this matter was pend ing, th e first of several serious disputes between the par ties occurred. On December 31, 1995, after the three children returned

to West Virginia from Christmas visitation with Mr. Odom, Ms. Odomand her aunt discovered a suspiciou s bruise o n her six- year-o ld daughter’s chest. On January 2, 1996, at the suggestion of the West Virginia child protective ser vice authoriti es, Ms. O dom had her daughter examined at a hospital emerge ncy room. Ms. Odom informedthe hospit

al perso nnel that

she was c oncerned about the bruise because Mr. Odom was “addict e d t o pornography.” 1 Ms. Odom also informed Mr. Odom that she intended to commence judicial proceedings in West Virginia to prevent him from continuing to visit the children.

In February 1996, Mr. Odom, Andrea Odom, and her son bega n family counseling with a licensedpsychologist practicing in Clarksville, Tennessee. Mr. Odom a nd his new wife were experiencing marital conflicts, and Mr. Odom felt “stressed out” after his childr en retur ned to We st Virginia and by Ms. Odom’s allegations that he hadsexually abused their daughter. On February 7, 1996, Mr. Odom filed a second petition to modify custody and to hold Ms. O dom in

contempt

. He asserted that Ms. Odom was continuing to obstruct telephone visitation with his children and that he was fearful that Ms. Odom was “planning to have him arre sted on f ictitious or manufactured ch arges when he returnsto West Vi rginia fo r his visita

tion.” Ap proximate

ly one we ek later , Ms.2 Ms. Odom met Scott Kiesi g in November 1997 af ter she moved t o Idaho. She ma rried h im on January 31, 1998, and c hanged her surname t o Kiesi g. -3- Odomcommenced proceedings in West Virginia to stop Mr. Odom’s visitation. F ollowing a conversation withthe West Vir ginia judg e assigned to the case, the tr ial cour t decline d to relinq

uish jurisdiction to the We st Virginia courts. As far as we can tell, the West Virginia proc eeding ended at this point without a definitive conclusion.

In September or October 1997, Ms. Odom and the parties three children moved to Meridian, Id aho. After

Ms. Odom declined to permit him to exercise his scheduled October visitation, Mr. Odomfiled an amended petition asserting, in addition to the allegat i ons in his February 1997 petition, t hat Ms. Odom had moved to Idaho “to dete r or def eat” hisvisitation

rights.

The parties’ three children tr aveled t o Tennessee for Christmas visitationin December 1997 andreturned to Idaho on January 3, 1998. The following day, Mr. Odom became anxious about his children and had an argument with his wife. When his wife stated that she was going to her father’ s house, Mr. Odom grabbed his service revolver and be gan waiving it around to convince her not to leave the house. Mr. Odom never fired the weapon and eventually unloaded it and threw it on the bed. Mr. Odom’s wife summoned the police, and by the time they arrived, Mr. Odom had calmed dow n. He was e

xamined a

t the hospital following the inc ident, and he and h is wife ha d a sessio n withtheir fa

mily thera pist on January 5, 1998. Mr. Odom took medicationfor his anxiety for several days and returned to duty following two weeks of leave. During the children’s visitation in June 1998, Mr. Odom and his wife decided to include themin their family counseling sessions because they were concerned about the children’s behavior. They spe cifical

ly asked the psychol ogist to interview Mr. Odom’s nine-year-old daughter separa tely. During her

first two interviews, the child told the psychologist that her fifteen-year-old half-brother hadbeen sexually abusing her and that he, in fact, was the one who hadcaused t

he bruise on her chest that had precipitated the sexual abuse inve stigati on in 1996. The girl’ s two broth ers also ascribed conduct t o the same

half-br other tha t the psychologist

concluded was physicaland sexual abuse. The psychologist reported her findings to Mr. Odom and to the authorities in Tennessee and Idaho.

On August 7, 1998, Mr. Odompetitioned for a restraining order to prevent Ms. Odom (now Kiesig) 2 from removing the child ren fro m his custod

y. He supp orted thispetition w ith an af fidavit from the family’s psychologist detailing the children’s accounts of their half-brother ’s sexual and physical abuse. Ms. Kiesig opposed Mr. O dom’s pet ition, stating that it was “totally false.” Following a hearing, the trial court entered an order on Septemb er 18, 19 98, restr aining Ms. Kiesig from removing the children from Mr. Odom’s custody and granting her supe rvised visitation.

In October 1998, Ms. Kiesig requested the trial court to appoint

an indepe

ndent psyc

hiatrist to examine the parties and their thre e childre n. She also

request ed an eme

rgency h earing in chambers for the purpose of providing the trial court information indicating that the children were3 Accor ding to the moti on, this information r elated to: (1) Mr. Odom’s “pornographic a ddiction, ” (2) the

January 4, 1998 i ncident invol ving Mr. Odom’s s ervi ce revol ver, (3) t he TBI’s inves ti gati on r eg ar di ng Ms . Kiesig’s 19 96 ch ar ge s t ha t Mr. Odo m ha d s ex ua l l y a bu s ed hi s da ug ht er , an d ( 4) othe r i na pp ro pr i at e c on du ct by Mr. Odo m.
4 On November 16, 1998, thi s cour t deni ed Ms. Kie sig’ s appl icat ion for a Tenn. R. App. P. 10 appeal from the tri al cou rt’s No vem ber 2 , 199 8 de cision

. Kies ig v. Odom , No. 01A01-9811- CH-00590 (Tenn. Ct . App. Nov. 20, 1998 ).

5 The tri al cou rt spec ifically fo und that the parties ’ dau ghte r had com plain ed to Ms. Kiesig i n 1996 about her half-brother’s conduct and that Ms. Kiesig had inst ructed her dau ghter to say that M r. Odo m d id it. The trial court also poin ted to M s. Kies ig’s eff orts to e nlist the a ssistanc e of th e cur rent M s. Od om ’s form er hu sban d.
-4- in danger as long as they were in Mr. Odom’s custody. 3 Following a November 2, 1998 hearing, the trial court declined to order an independent psychiatric examination of the parties or their children
orto hold an e

mergency hearing regar

ding tempo

rary cu stody of the childr en. Howe

ver, th e trial court granted Ms. Kiesig ’s reque st for an early he aring and se t the trial of all pending issues for December 3-4, 1998. 4

The trial court handed down its ruling from the bench on December4, 1998, following a twoday hearing. After observing that the children “have been through a lot with their pare nts fighting like they are,” the court

found that the parties’ daughter had been sexua lly abused by her

older halfbrother both in We st

Virginia and in Idaho. Accordingly, the trial court concluded that there had been a material change in the children’s circumstances and that the children would be “in danger” if they ret urned to Idaho to liv e with their half-brother. The trial court also described Ms. Kie sig as “v indictiv e” and “manipulative” and concluded that she had eve n attempted to solicit perjured testimony against Mr. Odom. 5 After concluding that Ms. Kiesig was untruthful, the court concluded that Ms. Kiesig had moved first to West Virginia and then to Id aho to fr

ustrate M r. Odom’sefforts to visit with the children.

Basedon these findings, the trial court entered its final order on Decembe r 31, 1998. Therein, the court granted Mr. Odom sole c ustody of t

he parti es’ three childr

en. The c ourt also

directe d Ms. Kiesigto pay (1)$170 per week in child support, (2) $2,500 of Mr. Odom’s legal expenses, and (3) the tran sportatio n costs fo r the chi ldren’svisitation in Idaho. Finally, the trial c ourt proh ibited all persons, except t

he childr en’s the rapist, f rom disc ussing with the children the events that had precipitated

this dispute. On February 1, 1999, Mr. Odom movedto amend the final order to provide that the children’s visitation in Idaho must be exerci se d in the absence of their older half-brother

. Over Ms. Kiesig’s objection, the trial court entered an order on March 5, 1999, stating that the older half-brother

could not be present, or

even in the same house, when the childre n were visiting the

ir mother.

The final skirmish between the parties began on March 23, 1999, when Mr. Odom requested the trial cou

rt to dela y or canc el his dau ghter’sspring vis itation wit h her mothe

r becau se it would
cause the child “immedia

te and ir repara ble harm.” To suppor

t this asse rtion, Mr. Odom atta

ched to his motion an affidavit from the family’s psychologist describing the child’s reaction to the news that she and her

brother s would be

traveling to Idaho to visit their mother. The psychologist stated that forcing the child to travel to Idaho “could well be her undoing” bec aus e she did not believe her6 Decis ions of the feder al courts cons trui ng analogous federal rules of procedure can provide hel pful guidance

in int erpre ti ng our ow n ru les. Frazi er v. East Te nn. Bapt ist Hosp. , 55 S.W .3d 9 25, 9 28 ( Ten n. 20 01) ; Byr d v. H all , 847 S.W.2d 208, 211 n. 2 ( Tenn. 199 3); Pa cific Easte rn Corp. v. Gul f Li fe Hol ding Co. , 902 S. W.2d 946, 952 n. 7 (Tenn. Ct. App. 199 5).
-5- mother w ould prote ct her from her half-brother and that “it is possible that [the child] could even have to be instit

utionaliz ed beca

use of the ex

treme anxiety, fear and mental stress that she is going through as a res ult of this t rip to visit her

mother.” Ms. Kiesig opposed Mr. Odom’s request. On March29, 1999, following a hearing, the trial court declined to delay or ca ncel the child’s scheduled visitation with Ms. Kiesig. However, the court ordered that “if the c hild . . . becomes upset

during the visit or if alternatively she expresses a desire to do so, she is to b e allowed to speak with Dr. Linda Pitts, by t elephone without any interference or without any ‘tapping’ in. If the c hild . . . becomes upset during the vis it, the visit shall be terminated and the child shall be returned to the father in Dickson County, Tennessee.” This appeal ensued.

II. T HE A PPOI NTMENT OF AN I NDEPENDEN T P SYCHIA TRIST
Ms. Kiesig first contends that the trial court infringed upon her due process rights by denying her pre-trial motion for the appointment of an independent psychiatrist to evaluate the parties and their chil d ren as well as her motion made on the morning of trial to have the par ties undergo a psychological examination. Based on the circumstances of this case, we have concluded that the trial court’s denial of Ms. Kiesig’s motion was not reversible error.

A.

Prior to the ado

ption of the Tenne ssee Rule s of Civil Procedu re, the Tennessee Supreme Courtrecogni zed the e

xistence of a comm

on-law p ower of

courts to compel lit

igants to submit

to physical examinations. Williams v. Chattanooga Iron Works , 131 Tenn. 683, 691, 176 S.W. 1031, 1033-34 (1915). H owever , th e Court recognize d that the courts should exer

cise this p ower “with great restraint and with

caref ul attenti on to the r

ights of the plaintiff.” Accord ingly, the Court held that plaintiff s should not be required to undergo a physical examination unless the party see king the examination has demonstrated “that it is necessary in order that justice may bedone.” Williams v. Chattanooga Iron Works , 131 Tenn . at 694-9 5, 176 S.W. at 1034; see also Union Pacific Ry. v. Botsford , 141 U.S. 250, 259, 11 S. Ct. 1000, 1004 (1891) (Brewe r, J., diss enting) ( stating tha t truth and justice are more sacred than any pe rsonal consideration).

With the advent in 1971 of the Tennessee Rules of Civil Procedure, Tennessee continued the common-law rule in Tenn. R. Civ. P. 35 which, then and now, is patterned after Fed. R. Civ. P. 35. 6 Tenn. R. Civ. P. 35.01 contains no limitati on on the a ctions to w

hich it ap plies; the refore it is availab le in any pending civil proceeding to which the Tennessee Rules of Civil Procedure apply. Few precedents construing Tenn. R. Civ. P. 35 exist because physical and mental examinations of parties or perso ns inthe custo dy of a pa rty are usually done by agreement without the intervention of the courts. 4 Nancy F. MacLean, Tennessee Practice § 35:2 (3d ed. 2000). Infact, commentators-6-

genera lly attribute

the ease of these agreements to the existence of Rule 35. 8A Charle s A. Wright, et al., Federal Practice and Procedure § 2234, at 474 (2d ed. 199 4) (“ Federal Practice and Procedu re ”). Any type of physical or

mental exam ination entails an invasion of privacy. Lombardo v. Holdridge , 491 A.2d 1125, 1126 (Conn. Super. Ct. 1985); Russenberger v. Russenberger , 623 So. 2d 1244, 1245 (Fla. Dist . Ct. App. 1 993); Uhl v. C.H. Shoemaker & Son, Inc. , 637 A.2d 1358, 1362- 63 (Pa. Super. Ct. 1994) . Accor din gly, rules like Tenn. R. Civ. P. 35 balance the interests of personal privacy with the interest of truth and justice. Lowe v. Philadelphia Newspapers, Inc. , 101 F.R.D. 296, 298 (

E.D. Pa. 1 983); Acocella v. Montauk Oil Transp. Corp. , 614 F. Supp. 1437, 1439 (S.D.N.Y. 1985); Avila v. Superior Court in and for County of Maricopa , 816 P.2d 946, 948-49 (Ariz. Ct. App. 1991).

To invok e Tenn. R. Civ. P. 35.01 success fully, a mo ving part y must esta

blish two th

ings. First, in the language of the rule, the moving party must establish that the mental or physical condition of a party or a person in the custody of a party i s “in controversy.” Second, the moving party mus t establis h that “good cause” exists for the physical or mental examination. Rather than being mere formalities, the “in controversy” and “good c ause” r equirem ents distinguish Ten

n. R. Civ. P. 35 from the other discovery rules. No other rule gove rning pre -trial di scovery

containsthese require ments.

In light of the se two requireme nts, a par ty seeking a Tenn. R. Civ. P. 35 o rder mus t establis h
more than that the physical or mental examination might lead to relev ant info rmation. Guilford Nat’lBank v. Southern Ry. , 297 F.2d 92 1, 924 (4th Cir . 1962). It must also establish need. 4A James W. Moore, e t. al., Moore’s Federal Practice and Procedure ¶ 35.03[5] (2d ed. 1996). Explaining the signi ficance of the “in controversy” and “good cause” r equirements, the United States Supreme Court has noted:

They are not m

et by mere co nclusory

allegati ons of the

pleading s – nor by mere releva

nc e to the case – but require an affirma tive showing by the mova

nt that ea

ch condit

ion as tow hich the examination is soughtis really andgenuinely in controversy and that good cause exists for ordering eac h p articular examination. Obviously, what may be good cau se for one type of examination may notbe so for another. The ability of the movant to obtain the desired informat ion by othe

r means isalso rele

vant. Schlagenhauf v. Holder , 379 U.S. 104, 118, 85 S. Ct. 234, 242-43 (1964).

We turn f irst to Tenn. R. Civ. P. 35’s “in controversy” requirement. A party’s physical or mental condition may be placed “in controversy” in two way s. Fir st, the pa rty himself or her self7 For exam ple, a plainti ff seeking dam ages for physical injury or em otion al distres s puts his or herphysi cal or

mental con dition “in co ntro versy .” By the sam e tok en, a d efen dan t wh o asse rts his or herphysi cal or mental condit ion as a de fense to an a cti on plac es hi s or he r condi ti on in cont rovers y.
8 Th is disco very ma y tak e plac e eithe r info rm ally b y a sim ple in quir y or mo re for ma lly through inte rrogatori es under Rul e 33 or depos it ions under Rul es 30 or 31.

9 Th is disco very ma y also take p lace in form ally sim ply b y req uesti n g counselto pr ovide c opies of t he examinat ion record s. Itmay also be purs ued more for mally t hrough depos it ions under Rul es 30 and 31 or r equest s for the pr oducti on of documents under Rul e 34.
-7- may place his or her condition in controversy. 7 Second, a party may place another party’ s physical
or mental condition “in controversy” even if the party him or herself has no t. The latter circumstan ce calls for

a discrim

inating a pplicatio n of Tenn . R. Civ. P. 35 ’s requi rements

. Schlagenhauf

v. Holder , 379 U.S. at 118-19, 85 S . Ct. at 243; Federal Practice and Procedure § 2234.1, at 480.

The “good cause” requirement in Tenn. R. Civ. P. 35 places the burden on the moving

party to demonstrate that the requested examination is needed. It requires the court to consider whether the informat

ion sought is availab le through other di scovery techniqu es and wh

ether the availa

ble information is adequate. Caban ex rel. Crespo v. 600E. 21st St. Co. , 200 F.R.D. 176, 182 (E.D.N.Y. 2001); Lahr v. Fulbright & Jaworski, L.L.P. , 16 4 F.R.D. 196, 200 (N.D . Tex. 199 5); Marroni v. Matey , 82 F.R.D. 37 1, 372 (E. D. Pa. 197 9); E x Parte Wal-Mart Stores, Inc. , 729 So. 2d 294, 298 (Ala. 1999). Thus, requests for examinations under Tenn. R. Ci v. P. 35 should be considered in the context of the other discovery in the case.

Federal courts have illustrated the sort of discover y proces s that will l ead tothe satisfaction of th e “ good cau se” req

uiremen t. In cas es wher

e a part y’s physic al or men

tal condition is in controversy, the courts anticipate that prior to filing a Rule 35 motion, the moving party will attempt to discover whether the

party wh ose cond

ition is in c ontrover sy has already been examined. 8 If the moving party learns that the party whose condition is in controversy has not been e xamined, it

may use the lack of an examination to establish good cause for order ing a Rule 35 examination. If the moving party learns that examinations have been c onducted, it can then discover the records and results of these ex amination s. 9

If formal or informal discovery leads to the production of existing examination records, the moving party will notbe entitled to insist on further examina tions unle ss it

can demonstrate that the prior examinations are insufficien t for its pu rposes. Thus, for

example , a moving p arty may be able to establish good cause for a Rule 35 examination when it demonstrates that it has discovered the results of the examinations already performed on the pa rty whose con dition is in controversy and that the conclusions of its own experts based on these records is contrary to the opinions of the other party’s experts. Anson v. Fickel , 110 F.R.D. 184, 186 (N.D. Ind. 1986). There are, of course , other
reasons for ordering a Rule 35 examination. For example, the moving party’s experts may disagree withthe methodology of the other party’s experts or may have concluded that the prior examinations are materially incomplete.10 Vythoul kas v. Vanderbi lt Univ. Hosp. , 693 S. W.2d 350, 356 (Tenn. Ct. App. 1985) ( holdi ng that the cou rse of p re-trial d iscov ery is, in large me asure , left to the discre tion o f the trial ju dge ).

11 Ragge v. MCA/Univ ersal Studi os , 165 F.R.D . 605 , 608 (C.D . Cal. 199 5); Curtis v. Express, Inc. , 868 F. Supp. 467 , 469 (N.D .N.Y . 199 4).
-8- Proceedings involving Tenn. R. Civ. P. 35 motionsare inte nsely fa ct-spec ific

. Federa l Prac tice and Procedure § 2234.1, at 482. There may be circumstances wher e the pleadings themselves will provi de the inf ormation n

eeded to perfor m the sort o f analys is that Te nn. R. Civ. P. 35 requires. However, as the United States Supreme Court has noted:

This does not, of course, mean t hat the movant mus t prove hi s case on the merit s in ord er to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is require d in all

cases. T his may be

necessa ry in some

cases, but in other cases the showing co uld be made by affidavit or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that

the district judge can fulfill his [or her] function mandated by the Rule. Schlagenhauf v. Holder , 379 U.S. at 119, 85 S. Ct. at 243. Moving parties do not have an absolute right to a Tenn. R. Civ. P. 35 examination of another party or a person in another

party’s custody. Newton v. Ceasar , No. M2000-01117-COA-R10-CV, 2000 WL 863447, at *2 (Tenn. Ct. App. June 29, 2000) (No Tenn. R. App. P. 11 application filed); Federal Practice and Procedure § 2234.1, at 478. Like othe r pre-tr ial discov ery matte

rs, 10 the trial courts have wide discretion with regard to granting or denying Tenn. R. Civ. P. 35 motions. Sanden
v. Mayo Clini c , 495 F.2d 221, 22 5 (8th Cir. 1974); Coca-Cola Bottling Co. v. Torres , 255 F.2d 149, 153 (1st Cir. 1958) ; Neal v. Siegel-Robert, Inc. , 171 F.R.D. 264, 266 (E.D. Mo. 1996); Great We st Life Assur. Co. v. Levithan , 153 F.R.D. 74, 76 (E.D. Pa. 1983). However, to exercise their disc retion properly, trial courts must analyze each motion on a case-b y-case

basis 11 and must a

nalyze t he fact s and proc edural p osture of the case in a careful and “discriminating” manner to determine whether the party seeking the physical or mental examination under Tenn . R. Civ. P. 35 has adeq uately demonstr ated tha t it has sat

isfied the rule’s r equirem ents.
B.

We now apply

these pr inciples t o the cir cumstanc es of this c ase. The threshol d question

is whether the mental conditions of Mr. Odom, Ms. Kiesig, or their three children w ere “in controversy” in this proce eding. Beca use the mental conditions of parents and children are not
necessa rily in controversy in every custody proc eeding, we m ust analyze the parties’ claims and defense s, as well as the facts brought to the trial court’s attention that might support a conclusion that the menta

l condition

of these particular par

ties and th

ese par ticular c hil dren w ere “in controversy.”12 This is especial ly true in thi s case becaus e of Ms. Kiesi g’s adamant denial thather son had eit her sexu ally
or physi call y abused t

he part ies ’ chi ldre n and her c ategorical refus al t o consi der s eparat ing the chi ldre n shoul d the part ies ’ chi ldre n be ret urned t o her cus tody.

13 For exam ple, Ms. Kiesig could have d iscovered the records of Dr. Pitts’s session s with the ch ildren and cou ld have used t

hese r ecords (1) t o cros s-exa mine Mr. Odom and Dr. Pi tt s re gardi ng whetherthey c oached the chi ldre n, (2) to obtain other exper t testimony calling D r. Pitts’s method ology into que stion, and (3 ) to insist that t he childre n be calle d as wit nesse s and s ubjected to a ppropri ate examinat ion and c ross -examinat ion.
-9- Mr. Odom’s pe

tition tochange custody rests on two grounds – the sexual and physical abuse of his children by their o lder ha lf-broth er and Ms . Kiesig’ s repea ted eff orts to inte

rfere with his visitation rights. These claims do not necessarily call ei ther Mr. Odo m’s, Ms. Ki esig’s, o r their children’s mental condition into question. Either claim, if f actu ally substantiated, would provide ample proof of a

material change in the children’s circumstances that would warrant re-e xamining the existing custody arrangement notwithstanding the parents’ or the children’s mental condition. 12 Accordingly, we find that Mr. Odom’s petitions did not place the mental condition of the parties or their ch ildren in c ontrover sy for Te nn. R. Civ. P. 35.01 pur

poses.
Ms. Kiesig’s defense to Mr. Odom’s petition is two-fo ld. First, she asserts that the allegations that

her son had sexually and physically abused his younger half-siblings over a two-yea r periodare false. S econd, she asserts that Mr. Odom is comparatively less fit than she to have custody of the children. To suppor t this asse rtion, she points toMr. Odom’s alleged adultery during their marriag e, his alleged addiction to por nograph y, espec ially pornog raphy involving homosexua

lity, besti ality, and mutilatio n, and hismental instability. The mental ins tability c laim stems from Mr. Odom’s continuing need for marital c ounseling, allegations of domestic violence and verbal abuse, and the January 4, 1998 incident involving Mr. Odom’s ser vice revolver.

Ms. Kiesig’s denial that her son physically and sexually abused his hal f-siblings does not place the children’s mental condition in controversy. If these childrenhave been either sexually or physically abused, that abus e alone, notwithstanding thei r current mental condition, amounts to a material enough change

in their circumstances to reopen the quest ion of cus tody. By ma

king this defense, Ms. Kiesig is not so much placing the children’s mental condition in controve rsy, a s she is arguing that the children’s testimony is false. In fact, her argument, as we under stand it, is that Dr. Linda Pitts, the family psychologist, and Mr. Odom have c oerce d or induc ed the ch ildren to make these false statements about their half -brother. This credibility defense could have bee n pursuedwithout subjecting the children to a battery of psycho logical te sts. 13 Accordingly, we conclude that Ms. Kiesig’s denial that her son a bused his half-siblings did not place the mental condition of these children in controversy for the purpose of Te nn. R. Civ. P. 35.01.

Ms. Kiesig’s allegations regarding Mr. Odom’s fitness to be a custodial parent present a far closer question. Notwithstanding Ms. Ki esig’s almost insurmountable credibility problems, the record contains objective evidence that could call into question Mr. Odom’s mental condition as it relat es to h is paren

ting skills. In addition to the tro ubling que stions of a

dultery a nd addict ion to14 On thi s sc ore, we find t hat t he tr ial court

erre d by repe atedly re fusing to consider for any purp ose Mr. Odo m’s conduct prior to the M ay 26, 199 5 divorce decree. As w e understand the trial court’s reasoning, t he court decided that

Ms. Kies ig had s omehow waived her r ight to pr esent

or even r ely on this evidence b y signing a marit al diss olut ion agreement rather than insisting on a full-blo wn trial. W e disag ree w ith thi s re asoni ng, es pecia ll y when the safety and well -bei ng of chi ldre n are c oncerned. Past behavi or is il lust

rat ive a nd relevant with regard to a person’s
curre nt ps ychologi cal condition.

15 In supp ort of her o ppo sitio n to Mr. Odo m’ s Au gus t 199 8 req uest fo r custo dy o f the ch ildren , M s. Kies ig provided the t

ria l cour t wit

h a cop y of a psy cho logist’s M ay 3 , 199 5 letter to her former lawy er detaili ng M r. Odom ’s adm issions regard ing these m atters. -10- pornography, 14 the parties’ pleadings and the pretrial discovery demonstra te (1) that Mr. Odom’s relation ship with both

his current wife and with Ms. Kiesig had required marital counseling, (2) that Mr. Odom had become so emotionally overwrought that he had been placed on Paxil, and (3) that during an emotio nal outbur st in Janua ry 1998, M

r
. Odom had wielded hi s servic e revolv er in his homein an inap

propria te and uns afe man

ner. Ac cordingl

y, based on the fa

cts of thiscase , we conclude that Ms. Kiesig has succee ded in placing Mr. Odom’s mental condition in controversy for the purposes of Tenn. R. Civ. P. 35.01.
C.

We now turn to the question o f whether Ms. Kiesig established good cause for subjecting herself, Mr. Odom, and their three children to psychological testing. Two considerations guide our examination of this question –whether each pe rson’s me ntal cond ition is in controversy and whether other availab le discov ery techniques w ould have en abled Ms. Kiesigto obtain the information she
so ught. We have

determined that Ms . Kiesig f ailed to e stablish go od cause for additi ona l psychological exa minations of the children because she did not demonstrate that their mental condition was in co ntrover sy and be cause of the disco very tactics of he r lawyers. We havelikewise determinedthat Ms. Kiesig did not establish good cause to subject Mr. Odom to a dditiona l psychological testing because her lawyers f ailed to demonstrate that the information they sought could not h ave bee

n obtaine d by other

means.
1.

Ms. Kiesigand her lawyers knew many months before trial that they planned to counter Mr. Odom’s petition fo r change o f custody by asserting that he was comparatively less fit to be the children’s custodian. Ms. Kiesig hadknown for many years about Mr. Odom’s alleged adultery with her best friend and his alleged addiction to pornography, as well as the marital counseling in which she and Mr. Odom had participated. 15 In addition, she had known since at least August 7, 1998 that Mr. Odom had taken the children to Dr. Pitts, a psychologist specializing in child abuse. She was also aware of the substance of Dr. Pitts’s conclusions because they wer e summari zed in an

August 4, 1998 affidavit filed in support of Mr. Odom’s motion.

Ms. Kiesig’seffortsto dis cover the extent of Mr. Odom’s and the children’s involvement with Dr. Pitts were far from robust. As far as this record shows, she did not even begin discovery16 Un fortu nately , this m otion doe s not sta te with particu larity the gro und s or leg al auth ority u pon wh ich it is

made as r equi red b y Tenn. R. Civ. P . 7.02 . Beca use it req uests the a ppoint ment of an “ independe nt” ps ychiat ris t, the motion could be construed as eit her a Tenn. R. Civ. P. 35.01 or a Tenn. R. Evid. 706 motion. It is al so conceivable that M s. Kiesi g cou ld ha ve b een seek ing th e app ointm ent o f a state-p aid p sych iatrist bec ause of he r belief that this proce eding was interferin g with h er paren tal rights.

17 As far as t

his rec ord shows, thi s is the fi rst specifi c refere nce to Tenn. R. Civ. P. 35.01 in t his cas e.
18 Other than Ms. Kiesi g’s a rguments and innue ndos, the r ecord cont ains no basi s for conc ludin g tha t the childre n would be exposed to danger if t hey were placed in Mr. Odo m’s custody. There i s surpri singly l itt le dir ect (con tinue d...)
-11- until November 10, 1998 – more than three months after she bec ame aware of Dr. Pitts’s activities and less than one month before trial. Instead, on October 3, 1998, her lawyers filed a “motion for appointment

of independent psychiatrist and psychological/psychiatric examination.” 16 Ms. Kiesig didnot obtain a hearing on her motion until November 2, 1998. While we have no record of what transpiredat that hearing, the rec ord ref lects that the trial court denied the motion at the conclusion of the he aring wit

hout taking the matte

r under a dvisemen t.
When the trial commenced on December 3, 1998, one of Ms. Kiesig’s law yers renewed the motion for an independent psychological examination of the parties and their children. After noting the tri al court ’s conce

rn about s ubjectin g the chil dren to un necessa ry stress , Ms. Kiesi g’s la wye r argued that “at the very lea st” the pa rents should“undergo a thorough psychological examination” according to Tenn. R. Civ. P. 35.01. 17 Rather than denying the motion, the trial court sta ted that it had“wide latitude in cases like this” and that it would decide about additional psychological testing andabou t intervie

wing the children in

chamber s “afte

r I hear the proof in the ca se.” Ms. K

iesig
renewe d her motio n for inde pendent p sychologi cal exa minations a

fter both sides rested. The trial court again denied the motion, stating “I’ve heard enough in this case. I ’ ve heard all kinds of evaluations. I think I’ve heard plenty.”

2.

Basedupon this record, we conclude that the trial court proper ly decl ined to order psychological examinations of the parties’ three children. We concur with the trial court’s expressed
concernabout unnecessarily exposing the children to additional stress. In addition, we find that psychological testing pu

rsuant to Tenn. R. Ci v. P. 35.01 w as not wa rrante d becau se Ms. Kie sig failedto demonstrate convincingly that the children’s mental condition was “in c ontrover sy” in this proceeding. Turning to the test

ing of the parties t hemselve s, the re cord con tains no ba sis for requiring Ms. Kiesigto underg o psycholo gical tes ting beca use her m

ental con dition was not “in controversy.” While Ms. Kiesig succeeded in placing Mr. Odom’s mental condition “in controversy,” she failed to demonstrate that the information shesought to obtain by this testing could not have been obtained through ot

her mea ns. She also failed to explain what sheanticipa ted this ad

ditional te sting would have revealed or confirmed. 18 Testing under Tenn. R. Civ. P. 35 is not intended to provide the same18 (.. .continued)

evid enc e in this r eco rd reg ardin g M r. Od om ’s fitness to be the cu stodia l pare nt.

19 Even if we were to conclud e that the tri al court erre d by denying Ms. Kiesi g’s Tenn. R. Civ. P. 35. 01 motion, which we do n ot, th e r el ie f f or th is er ro r wo ul d no t i ncl ude re tu rn in g t he c hi ld re n t o Ms. Ki es ig ’s cus to dy. No examinat ion of M r. Od om wo uld undermine t he st rengt h of t he evidence that the chil dren’s ci rcumstances had changed since November 1995 and tha t these c hanges wer e mater ial enough to war rant removing the children from M s. Kiesig’s cust ody. At m ost, the results o f a psychologic al exam ination of Mr. Od om w ould have u nderm ined the trial court’s decis ion to plac e the c hildre n in M r. Od om ’s custo dy. Our deci sion in this case does not forec lose the c ustody quest ion. As long as any of t

he chi ldre n remain minor s, Ms. Kies ig may ret urn to court

seeki ng a change of

cust ody based upon materi al c hanges i n the c hil dren’s cir cumstanc es occ urri ng aft er December 31, 1998.

20 The courts have carved out an excepti on to the mootness doct rine for cases i nvolving iss ues that are cap able of repe tition bu t will evad e jud icial revie w. State ex rel A nglin v. M itchell , 596 S .W .2d 7 79, 7 82 ( Te nn. 19 80) ; New Riviera Arts T hea tre v. Sta te , 219 Te nn. 65 2, 65 8, 41 2 S.W .2d 8 90, 8 93 ( 196 7); LaRouche v. Cro well , 709 S. W.2d 585, 587 -88 (T enn. C t. App . 198 5).
-12- sort of fishing exped itio n for relevant in formatio n that is pr

ovided by

the other discover y rules. Accordingly, we cannot

conclude, based on this record, that the trial court abused its discretion by denying Ms. Kiesig’s motion for independent testing. 19

III. T HE R OLE OF D R . P ITTS D URING THE S PRING 1999 V ISI TATI ON
As a final matter, Ms. Kiesig takes issue with the trial court’s March 29, 1999 order regarding the Spring 1999 visitation. She asserts that the trial court improper ly delegated its judicial power to Dr. Pittsto termina

te the pa rties’ da ughter’ s visitatio n. Even though this issue is moot beca use the Spring 1999 visitation has long since concluded, we will address the question because it involves the sort of issue that is capable of repetition. 20

The March 29, 1999 order arose out of a dispute over whether the part ies’ dau ghter sho

uld travel to Idaho f

or her sc heduled v isitation with Ms. Kiesig during the spring of 1999. Mr. Odom requested the trial court to delay or cance l this visitation because Dr. Pitts had concluded:

What needs to b e realiz ed is that with the abuse . . . [t he chil d] ha s suffered, she cannot be expected to do well in such a short period of time. Her mother has taken no action t o show her that she believes that she was sexually abus ed, and i n fact has stated to the contrary. [The child] . . . realizing this , fears that her mother will not protect he r from . . . [her older half-brother] whe n she goes to vi sit her an d her mother has shown her no reason whatsoever that her fears are not justified. The fact that there is a [c]ou rt [o]rder that . . . [the older half-brother] cannot be in the house or in . . . [the child’s] pre sence does not in any way alleviate . . . [her] fears because her mothe

r told her before that she would protect her from . .

. [her half-brother] and-13- she did notdo so and . . . [the ch ild] is ter rified th at her mo ther will not protect her this time.

For her part, Ms. Kiesig responded byasserting that Mr. Odom’s motion was “in effect asking for termination of . . . [her] parental rights without [d]ue [p]roce ss” and by assuring the trial court that “[t]he half-br

other will not be in

contact with any of thechildren during their visits with their mother andother half-brother until the court is satisfied that there is no danger to the children.” Based

on this assurance, the trial court filed its March 29, 1999 order imposing the following restrictions on the part ies’ dau ghter’sspring 199 9 visitatio n with Ms. K iesig: if the child . . . becomes upset during the visit or if alternatively she expresses a desire to do so, she is to be allowed to speak with Dr. Linda Pitts, by telephone without any interferenc e or without any ‘tapping in.’ If the child . . . becomes upset during the visit, t he visit
s hallbe terminated and the child shall be returned to the father i n Dickson County, Tennessee.

While we findthat Dr. Pi

tts’s Mar ch 22, 199 9 affida

vit provid ed the tr ial cour t with grounds to delay the

spring 199 9 visitatio n, we will not second-guess the trial court’s decision to permit the visitation to proceed in order to maintain the relationship be tween Ms. Kie sig and her daughter. Likewise, we do not construe the safeguard in the trial court’s Ma rch 29, 1999 order

as some sort of improper delegation of judicial power to Dr. Pitts. As we cons tru e the order, the trial court directed that if the child became upset during h er visit, M s. Kiesig s hould per mit her da

ughter to speak to Dr. Pitts and sho uld terminate visitation. If Ms. Kiesig did not believe her daughter was upset, then she was not required to contact Dr. Pitts unless requested to by the child. Thus, the order implicitly assumed that Ms. Kiesig, rather than Dr. Pitts, would be the initial arbiter of whether her daughter was upset enough to warrant further action, such a s terminating visitation or contacting Dr. Pitts.

IV.

We affirm the judgment and remand the case to the trial cour t for whatever further proceedings may be required. We also tax the costs of this appeal to Mary Jo Kiesig and her sure ty for which execution, if necessary, may issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE