IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 25, 1999 Session

ROBERT VAUGHN ODOM v. MARY 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 involves a bitter custody dispute over three children between the ages of nine and

fourteen. During the divorce proceeding in the Chancery Court for Dickson County, the parties

agreed that the mother would have custody of the children and also agreed on visitation

arrangements that accommodated the mother’s planned move to another state. Several months after

the entry of the divorce decree, the father petitioned to change custody and to hold the mother in

contempt for interfering with his relationship with the children. During the ensuing three years, the

parties traded allegations of sexual and physical abuse of the children and other misconduct.

Following a bench trial in December 1998, the trial court found that there had been a material change

in the children’s circumstances and granted the father custody of the children. On this appeal, the

mother asserts that she was denied due process by the trial court’s refusal to require the parties and

their children to undergo a psychological examination and that the trial court unlawfully delegated

its judicial authority to a psychologist who had been counseling the children. We have determined

that the mother received an essentially fair hearing on this custody dispute and, therefore, affirm the

trial court.

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

WILLIAM C.KOCH,JR., J., delivered the opinion of the court, in which ALAN E.HIGHERS and DAVID

R. FARMER, JJ., joined.

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Mary Jo Odom.

Karla C. Hewitt, Nashville, Tennessee, for the appellee, Robert Vaughn Odom.

OPINION

I.

Robert Vaughn Odom and Mary Jo Fielder were married in October 1986 in Georgia, less

than one week before Mr. Odom’s twenty-fourth birthday. Ms. Odom was already twenty-four years

old and had three-year-old and five-year-old sons from a prior marriage. Between 1987 and 1992,
1

These statements led to an investigation by the Tennessee Bureau of Investigation. This investigation was

closed in November 1997 without conclusive findings or recommendation for prosecution.

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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 practical nurse.

The parties separated in October 1994. On November 4, 1994, Mr. Odom filed a petition for

divorce in the Chancery Court for Dickson County. Ms. Odom counterclaimed for divorce and

sought custody of the parties’ three children pending the trial. On May 24, 1995, the parties signed

a marital dissolution agreement that, among other things, granted sole custody of the children to Ms.

Odom and directed Mr. Odom to pay $728 per month in child support. Mr. Odom’s visitation rights

were established to accommodate 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 agreement.

Ms. Odom and the parties’ three children moved to Parkersburg, West Virginia shortly after

the entry of the final divorce decree. Mr. Odom soon married Andrea Biele, a nurse with a six-yearold son. Ms. Biele and her former husband had been friends of the parties while they were married

and were divorced approximately four months before 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 contempt for obstructing his telephone calls

to his children and for refusing to pay her share of his visitation travel expenses. He also alleged that

Ms. Odom, contrary to the marital dissolution agreement, “repeatedly talked negatively about him

to the children” in an effort to destroy his relationship with the children. Following a hearing in

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

While this matter was pending, the first of several serious disputes between the parties

occurred. On December 31, 1995, after the three children returned to West Virginia from Christmas

visitation with Mr. Odom, Ms. Odom and her aunt discovered a suspicious bruise on her six-year-old

daughter’s chest. On January 2, 1996, at the suggestion of the West Virginia child protective service

authorities, Ms. Odom had her daughter examined at a hospital emergency room. Ms. Odom

informed the hospital personnel that she was concerned about the bruise because Mr. Odom was

“addicted to 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 began family counseling with a

licensed psychologist practicing in Clarksville, Tennessee. Mr. Odom and his new wife were

experiencing marital conflicts, and Mr. Odom felt “stressed out” after his children returned to West

Virginia and by Ms. Odom’s allegations that he had sexually abused their daughter. On February

7, 1996, Mr. Odom filed a second petition to modify custody and to hold Ms. Odom 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 arrested on fictitious or manufactured

charges when he returns to West Virginia for his visitation.” Approximately one week later, Ms.
2Ms. Odom met Scott Kiesig in November 1997 after she moved to Idaho. She married him on January 31,

1998, and changed her surname to Kiesig.

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Odom commenced proceedings in West Virginia to stop Mr. Odom’s visitation. Following a

conversation with the West Virginia judge assigned to the case, the trial court declined to relinquish

jurisdiction to the West Virginia courts. As far as we can tell, the West Virginia proceeding ended

at this point without a definitive conclusion.

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

Idaho. After Ms. Odom declined to permit him to exercise his scheduled October visitation, Mr.

Odom filed an amended petition asserting, in addition to the allegations in his February 1997

petition, that Ms. Odom had moved to Idaho “to deter or defeat” his visitation rights.

The parties’ three children traveled to Tennessee for Christmas visitation in December 1997

and returned 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 began 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

down. He was examined at the hospital following the incident, and he and his wife had a session

with their family therapist on January 5, 1998. Mr. Odom took medication for 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

them in their family counseling sessions because they were concerned about the children’s behavior.

They specifically asked the psychologist to interview Mr. Odom’s nine-year-old daughter separately.

During her first two interviews, the child told the psychologist that her fifteen-year-old half-brother

had been sexually abusing her and that he, in fact, was the one who had caused the bruise on her

chest that had precipitated the sexual abuse investigation in 1996. The girl’s two brothers also

ascribed conduct to the same half-brother that the psychologist concluded was physical and sexual

abuse. The psychologist reported her findings to Mr. Odom and to the authorities in Tennessee and

Idaho.

On August 7, 1998, Mr. Odom petitioned for a restraining order to prevent Ms. Odom (now

Kiesig)2

 from removing the children from his custody. He supported this petition with an affidavit

from the family’s psychologist detailing the children’s accounts of their half-brother’s sexual and

physical abuse. Ms. Kiesig opposed Mr. Odom’s petition, stating that it was “totally false.”

Following a hearing, the trial court entered an order on September 18, 1998, restraining Ms. Kiesig

from removing the children from Mr. Odom’s custody and granting her supervised visitation.

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

to examine the parties and their three children. She also requested an emergency hearing in

chambers for the purpose of providing the trial court information indicating that the children were
3

According to the motion, this information related to: (1) Mr. Odom’s “pornographic addiction,” (2) the

January 4, 1998 incident involving Mr. Odom’s service revolver, (3) the TBI’s investigation regarding Ms. Kiesig’s

1996 charges that Mr. Odom had sexually abused his daughter, and (4) other inappropriate conduct by Mr. Odom.

4

On November 16, 1998, this court denied Ms. Kiesig’s application for a Tenn. R. App. P. 10 appeal from the

trial court’s November 2, 1998 decision. Kiesig v. Odom, No. 01A01-9811-CH-00590 (Tenn. Ct. App. Nov. 20, 1998).

5

The trial court specifically found that the parties’ daughter had complained to Ms. Kiesig in 1996 about her

half-brother’s conduct and that Ms. Kiesig had instructed her daughter to say that Mr. Odom did it. The trial court also

pointed to Ms. Kiesig’s efforts to enlist the assistance of the current Ms. Odom’s former husband. 

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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

or to hold an emergency hearing regarding temporary custody of the children. However, the trial

court granted Ms. Kiesig’s request for an early hearing and set the trial of all pending issues for

December 3-4, 1998.4 

The trial court handed down its ruling from the bench on December 4, 1998, following a twoday hearing. After observing that the children “have been through a lot with their parents fighting

like they are,” the court found that the parties’ daughter had been sexually abused by her older halfbrother both in West 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 returned to Idaho to live with their half-brother. The trial court also described Ms. Kiesig as

“vindictive” and “manipulative” and concluded that she had even 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 Idaho to frustrate Mr. Odom’s efforts

to visit with the children. 

Based on these findings, the trial court entered its final order on December 31, 1998. Therein,

the court granted Mr. Odom sole custody of the parties’ three children. The court also directed Ms.

Kiesig to pay (1) $170 per week in child support, (2) $2,500 of Mr. Odom’s legal expenses, and (3)

the transportation costs for the children’s visitation in Idaho. Finally, the trial court prohibited all

persons, except the children’s therapist, from discussing with the children the events that had

precipitated this dispute. On February 1, 1999, Mr. Odom moved to amend the final order to provide

that the children’s visitation in Idaho must be exercised 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 children were visiting their

mother.

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

the trial court to delay or cancel his daughter’s spring visitation with her mother because it would

cause the child “immediate and irreparable harm.” To support this assertion, Mr. Odom attached to

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

she and her brothers 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” because she did not believe her
6

Decisions of the federal courts construing analogous federal rules of procedure can provide helpful guidance

in interpreting our own rules. Frazier v. East Tenn. Baptist Hosp., 55 S.W.3d 925, 928 (Tenn. 2001); Byrd v. Hall, 847

S.W.2d 208, 211 n. 2 (Tenn. 1993); Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 n.7 (Tenn.

Ct. App. 1995).

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mother would protect her from her half-brother and that “it is possible that [the child] could even

have to be institutionalized because of the extreme anxiety, fear and mental stress that she is going

through as a result of this trip to visit her mother.” Ms. Kiesig opposed Mr. Odom’s request. On

March 29, 1999, following a hearing, the trial court declined to delay or cancel the child’s scheduled

visitation with Ms. Kiesig. However, the court ordered that “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 interference or without any ‘tapping’ in. If the child . . .

becomes upset during the visit, the visit shall be terminated and the child shall be returned to the

father in Dickson County, Tennessee.” This appeal ensued.

II.

THE APPOINTMENT OF AN INDEPENDENT PSYCHIATRIST

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 children as well as her motion made on the morning of trial to have the parties 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 adoption of the Tennessee Rules of Civil Procedure, the Tennessee Supreme

Court recognized the existence of a common-law power of courts to compel litigants to submit to

physical examinations. Williams v. Chattanooga Iron Works, 131 Tenn. 683, 691, 176 S.W. 1031,

1033-34 (1915). However, the Court recognized that the courts should exercise this power “with

great restraint and with careful attention to the rights of the plaintiff.” Accordingly, the Court held

that plaintiffs should not be required to undergo a physical examination unless the party seeking the

examination has demonstrated “that it is necessary in order that justice may be done.” Williams v.

Chattanooga Iron Works, 131 Tenn. at 694-95, 176 S.W. at 1034; see also Union Pacific Ry. v.

Botsford, 141 U.S. 250, 259, 11 S. Ct. 1000, 1004 (1891) (Brewer, J., dissenting) (stating that truth

and justice are more sacred than any personal 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 limitation on the actions to which it applies; therefore it is

available 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 persons in the custody of a party are usually done by agreement without the intervention

of the courts. 4 Nancy F. MacLean, Tennessee Practice § 35:2 (3d ed. 2000). In fact, commentators
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generally attribute the ease of these agreements to the existence of Rule 35. 8A Charles A. Wright,

et al., Federal Practice and Procedure § 2234, at 474 (2d ed. 1994) (“Federal Practice and

Procedure”). 

Any type of physical or mental examination 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. 1993); Uhl v. C.H. Shoemaker & Son, Inc., 637 A.2d 1358, 1362-

63 (Pa. Super. Ct. 1994). Accordingly, 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. 1983); 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 invoke Tenn. R. Civ. P. 35.01 successfully, a moving party must establish two things.

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 is “in controversy.” Second, the moving

party must establish that “good cause” exists for the physical or mental examination. Rather than

being mere formalities, the “in controversy” and “good cause” requirements distinguish Tenn. R.

Civ. P. 35 from the other discovery rules. No other rule governing pre-trial discovery contains these

requirements.

In light of these two requirements, a party seeking a Tenn. R. Civ. P. 35 order must establish

more than that the physical or mental examination might lead to relevant information. Guilford

Nat’l Bank v. Southern Ry., 297 F.2d 921, 924 (4th Cir. 1962). It must also establish need. 4A

James W. Moore, et. al., Moore’s Federal Practice and Procedure ¶ 35.03[5] (2d ed. 1996).

Explaining the significanceofthe “in controversy” and “good cause” requirements, the United States

Supreme Court has noted:

They are not met by mere conclusory allegations of the pleadings –

nor by mere relevance to the case – but require an affirmative

showing by the movant that each condition as to which the

examination is sought is really and genuinely in controversy and that

good cause exists for ordering each particular examination.

Obviously, what may be good cause for one type of examination may

not be so for another. The ability of the movant to obtain the desired

information by other means is also relevant.

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

We turn first to Tenn. R. Civ. P. 35’s “in controversy” requirement. A party’s physical or

mental condition may be placed “in controversy” in two ways. First, the party himself or herself
7

For example, a plaintiff seeking damages for physical injury or emotional distress puts his or her physical or

mental condition “in controversy.” By the same token, a defendant who asserts his or her physical or mental condition

as a defense to an action places his or her condition in controversy.

8

This discovery may take place either informally by a simple inquiry or more formally through interrogatories

under Rule 33 or depositions under Rules 30 or 31.

9

This discovery may also take place informally simply by requesting counsel to provide copies of the

examination records. It may also be pursued more formally through depositions under Rules 30 and 31 or requests for

the production of documents under Rule 34.

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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 not. The latter

circumstance calls for a discriminating application of Tenn. R. Civ. P. 35’s requirements.

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 information sought is available through other discovery techniques and whether the available

information is adequate. Caban ex rel. Crespo v. 600 E. 21st St. Co., 200 F.R.D. 176, 182 (E.D.N.Y.

2001); Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 196, 200 (N.D. Tex. 1995); Marroni v.

Matey, 82 F.R.D. 371, 372 (E.D. Pa. 1979); Ex Parte Wal-Mart Stores, Inc., 729 So. 2d 294, 298

(Ala. 1999). Thus, requests for examinations under Tenn. R. Civ. P. 35 should be considered in the

context of the other discovery in the case.

Federal courts have illustrated the sort of discovery process that will lead to the satisfaction

of the “good cause” requirement. In cases where a party’s physical or mental 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 whose condition is in controversy has already been examined.8 If the

moving party learns that the party whose condition is in controversy has not been examined, it may

use the lack of an examination to establish good cause for ordering a Rule 35 examination. If the

moving party learns that examinations have been conducted, it can then discover the records and

results of these examinations.9

If formal or informal discovery leads to the production of existing examination records, the

moving party will not be entitled to insist on further examinations unless it can demonstrate that the

prior examinations are insufficient for its purposes. Thus, for example, a moving party 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 party whose condition 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

with the methodology of the other party’s experts or may have concluded that the prior examinations

are materially incomplete.
10Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 356 (Tenn. Ct. App. 1985) (holding that the course

of pre-trial discovery is, in large measure, left to the discretion of the trial judge). 

11

Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995); Curtis v. Express, Inc., 868 F. Supp.

467, 469 (N.D.N.Y. 1994). 

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Proceedings involving Tenn. R. Civ. P. 35 motions are intensely fact-specific. Federal

Practice and Procedure § 2234.1, at 482. There may be circumstances where the pleadings

themselves will provide the information needed to perform the sort of analysis that Tenn. R. Civ. P.

35 requires. However, as the United States Supreme Court has noted:

This does not, of course, mean that the movant must prove his case

on the merits in order to meet the requirements for a mental or

physical examination. Nor does it mean that an evidentiary hearing

is required in all cases. This may be necessary in some cases, but in

other cases the showing could 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 other pre-trial discovery matters,10 the trial

courts have wide discretion with regard to granting or denying Tenn. R. Civ. P. 35 motions. Sanden

v. Mayo Clinic, 495 F.2d 221, 225 (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 West

Life Assur. Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1983). However, to exercise their discretion

properly, trial courts must analyze each motion on a case-by-case basis11 and must analyze the facts

and procedural posture 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 adequately

demonstrated that it has satisfied the rule’s requirements.

B.

We now apply these principles to the circumstances of this case. The threshold question is

whether the mental conditions of Mr. Odom, Ms. Kiesig, or their three children were “in

controversy” in this proceeding. Because the mental conditions of parents and children are not

necessarily in controversy in every custody proceeding, we must analyze the parties’ claims and

defenses, as well as the facts brought to the trial court’s attention that might support a conclusion

that the mental condition of these particular parties and these particular children were “in

controversy.”
12This is especially true in this case because of Ms. Kiesig’s adamant denial that her son had either sexually

or physically abused the parties’ children and her categorical refusal to consider separating the children should the

parties’ children be returned to her custody.

13For example, Ms. Kiesig could have discovered the records of Dr. Pitts’s sessions with the children and could

have used these records (1) to cross-examine Mr. Odom and Dr. Pitts regarding whether they coached the children, (2)

to obtain other expert testimony calling Dr. Pitts’s methodology into question, and (3) to insist that the children be called

as witnesses and subjected to appropriate examination and cross-examination.

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Mr. Odom’s petition to change custody rests on two grounds – the sexual and physical abuse

of his children by their older half-brother and Ms. Kiesig’s repeated efforts to interfere with his

visitation rights. These claims do not necessarily call either Mr. Odom’s, Ms. Kiesig’s, or their

children’s mental condition into question. Either claim, if factually substantiated, would provide

ample proof of a material change in the children’s circumstances that would warrant re-examining

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 children in controversy for Tenn. R. Civ. P. 35.01 purposes.

Ms. Kiesig’s defense to Mr. Odom’s petition is two-fold. First, she asserts that the

allegations that her son had sexually and physically abused his younger half-siblings over a two-year

period are false. Second, she asserts that Mr. Odom is comparatively less fit than she to have

custody of the children. To support this assertion, she points to Mr. Odom’s alleged adultery during

their marriage, his alleged addiction to pornography, especially pornography involving

homosexuality, bestiality, and mutilation, and his mental instability. The mental instability claim

stems from Mr. Odom’s continuing need for marital counseling, allegations of domestic violence

and verbal abuse, and the January 4, 1998 incident involving Mr. Odom’s service revolver. 

Ms. Kiesig’s denial that her son physically and sexually abused his half-siblings does not

place the children’s mental condition in controversy. If these children have been either sexually or

physically abused, that abuse alone, notwithstanding their current mental condition, amounts to a

material enough change in their circumstances to reopen the question of custody. By making this

defense, Ms. Kiesig is not so much placing the children’s mental condition in controversy, as she

is arguing that the children’s testimony is false. In fact, her argument, as we understand it, is that

Dr. Linda Pitts, the family psychologist, and Mr. Odom have coerced or induced the children to

make these false statements about their half-brother. This credibility defense could have been

pursued without subjecting the children to a battery of psychological tests.13 Accordingly, we

conclude that Ms. Kiesig’s denial that her son abused his half-siblings did not place the mental

condition of these children in controversy for the purpose of Tenn. 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. Kiesig’s almost insurmountable credibility problems, the

record contains objective evidence that could call into question Mr. Odom’s mental condition as it

relates to his parenting skills. In addition to the troubling questions of adultery and addiction to
14On this score, we find that the trial court erred by repeatedly refusing to consider for any purpose Mr.

Odom’s conduct prior to the May 26, 1995 divorce decree. As we understand the trial court’s reasoning, the court

decided that Ms. Kiesig had somehow waived her right to present or even rely on this evidence by signing a marital

dissolution agreement rather than insisting on a full-blown trial. We disagree with this reasoning, especially when the

safety and well-being of children are concerned. Past behavior is illustrative and relevant with regard to a person’s

current psychological condition.

15In support of her opposition to Mr. Odom’s August 1998 request for custody of the children, Ms. Kiesig

provided the trial court with a copy of a psychologist’s M ay 3, 1995 letter to her former lawyer detailing Mr. Odom’s

admissions regarding these matters.

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pornography,14 the parties’ pleadings and the pretrial discovery demonstrate (1) that Mr. Odom’s

relationship 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 emotional outburst in January 1998, Mr. Odom had wielded his service revolver in his

home in an inappropriate and unsafe manner. Accordingly, based on the facts of this case, we

conclude that Ms. Kiesig has succeeded 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 of 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 person’s mental condition is in controversy and whether

other available discovery techniques would have enabled Ms. Kiesig to obtain the information she

sought. We have determined that Ms. Kiesig failed to establish good cause for additional

psychological examinations of the children because she did not demonstrate that their mental

condition was in controversy and because of the discovery tactics of her lawyers. We have likewise

determined that Ms. Kiesig did not establish good cause to subject Mr. Odom to additional

psychological testing because her lawyers failed to demonstrate that the information they sought

could not have been obtained by other means.

1.

Ms. Kiesig and her lawyers knew many months before trial that they planned to counter Mr.

Odom’s petition for change of custody by asserting that he was comparatively less fit to be the

children’s custodian. Ms. Kiesig had known 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 were summarized in an August

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

Ms. Kiesig’s efforts to discover 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 discovery
16Unfortunately, this motion does not state with particularity the grounds or legal authority upon which it is

made as required by Tenn. R. Civ. P. 7.02. Because it requests the appointment of an “independent” psychiatrist, the

motion could be construed as either a Tenn. R. Civ. P. 35.01 or a Tenn. R. Evid. 706 motion. It is also conceivable that

Ms. Kiesig could have been seeking the appointment of a state-paid psychiatrist because of her belief that this

proceeding was interfering with her parental rights.

17As far as this record shows, this is the first specific reference to Tenn. R. Civ. P. 35.01 in this case.

18Other than Ms. Kiesig’s arguments and innuendos, the record contains no basis for concluding that the

children would be exposed to danger if they were placed in Mr. Odom’s custody. There is surprisingly little direct

(continued...)

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until November 10, 1998 – more than three months after she became 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

did not obtain a hearing on her motion until November 2, 1998. While we have no record of what

transpired at that hearing, the record reflects that the trial court denied the motion at the conclusion

of the hearing without taking the matter under advisement.

When the trial commenced on December 3, 1998, one of Ms. Kiesig’s lawyers renewed the

motion for an independent psychological examination of the parties and their children. After noting

the trial court’s concern about subjecting the children to unnecessary stress, Ms. Kiesig’s lawyer

argued that “at the very least” the parents should “undergo a thorough psychological examination”

according to Tenn. R. Civ. P. 35.01.17 Rather than denying the motion, the trial court stated that it

had “wide latitude in cases like this” and that it would decide about additional psychological testing

and about interviewing the children in chambers “after I hear the proof in the case.” Ms. Kiesig

renewed her motion for independent psychological examinations after 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.

Based upon this record, we conclude that the trial court properly declined to order

psychological examinations of the parties’ three children. We concur with the trial court’s expressed

concern about unnecessarily exposing the children to additional stress. In addition, we find that

psychological testing pursuant to Tenn. R. Civ. P. 35.01 was not warranted because Ms. Kiesig

failed to demonstrate convincingly that the children’s mental condition was “in controversy” in this

proceeding.

Turning to the testing of the parties themselves, the record contains no basis for requiring Ms.

Kiesig to undergo psychological testing because her mental condition was not “in controversy.”

While Ms. Kiesig succeeded in placing Mr. Odom’s mental condition “in controversy,” she failed

to demonstrate that the information she sought to obtain by this testing could not have been obtained

through other means. She also failed to explain what she anticipated this additional testing would

have revealed or confirmed.18 Testing under Tenn. R. Civ. P. 35 is not intended to provide the same
18(...continued)

evidence in this record regarding Mr. Odom’s fitness to be the custodial parent.

19

Even if we were to conclude that the trial court erred by denying Ms. Kiesig’s Tenn. R. Civ. P. 35.01 motion,

which we do not, the relief for this error would not include returning the children to Ms. Kiesig’s custody. No

examination of Mr. Odom would undermine the strength of the evidence that the children’s circumstances had changed

since November 1995 and that these changes were material enough to warrant removing the children from Ms. Kiesig’s

custody. At most, the results of a psychological examination of Mr. Odom would have undermined the trial court’s

decision to place the children in Mr. Odom’s custody. Our decision in this case does not foreclose the custody question.

As long as any of the children remain minors, Ms. Kiesig may return to court seeking a change of custody based upon

material changes in the children’s circumstances occurring after December 31, 1998.

20The courts have carved out an exception to the mootness doctrine for cases involving issues that are capable

of repetition but will evade judicial review. State ex rel Anglin v. Mitchell, 596 S.W.2d 779, 782 (Tenn. 1980); New

Riviera Arts Theatre v. State, 219 Tenn. 652, 658, 412 S.W.2d 890, 893 (1967); LaRouche v. Crowell, 709 S.W.2d 585,

587-88 (Tenn. Ct. App. 1985). 

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sort of fishing expedition for relevant information that is provided by the other discovery 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.

THE ROLE OF DR. PITTS DURING THE SPRING 1999 VISITATION

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 improperly delegated its judicial power

to Dr. Pitts to terminate the parties’ daughter’s visitation. Even though this issue is moot because

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 parties’ daughter should

travel to Idaho for her scheduled visitation with Ms. Kiesig during the spring of 1999. Mr. Odom

requested the trial court to delay or cancel this visitation because Dr. Pitts had concluded:

What needs to be realized is that with the abuse . . . [the child] has

suffered, she cannot be expected to do well in such a short period of

time. Her mother has taken no action to show her that she believes

that she was sexually abused, and in fact has stated to the contrary.

[The child] . . . realizing this, fears that her mother will not protect

her from . . . [her older half-brother] when she goes to visit her and

her mother has shown her no reason whatsoever that her fears are not

justified. The fact that there is a [c]ourt [o]rder that . . . [the older

half-brother] cannot be in the house or in . . . [the child’s] presence

does not in any way alleviate . . . [her] fears because her mother told

her before that she would protect her from . . . [her half-brother] and
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she did not do so and . . . [the child] is terrified that her mother will

not protect her this time.

For her part, Ms. Kiesig responded by asserting that Mr. Odom’s motion was “in effect asking for

termination of . . . [her] parental rights without [d]ue [p]rocess” and by assuring the trial court that

“[t]he half-brother will not be in contact with any of the children during their visits with their mother

and other 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 parties’ daughter’s spring 1999 visitation with Ms. Kiesig: 

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 interference or without any

‘tapping in.’ If the child . . . becomes upset during the visit, the visit

shall be terminated and the child shall be returned to the father in

Dickson County, Tennessee.

While we find that Dr. Pitts’s March 22, 1999 affidavit provided the trial court with grounds

to delay the spring 1999 visitation, we will not second-guess the trial court’s decision to permit the

visitation to proceed in order to maintain the relationship between Ms. Kiesig and her daughter.

Likewise, we do not construe the safeguard in the trial court’s March 29, 1999 order as some sort

of improper delegation of judicial power to Dr. Pitts. As we construe the order, the trial court

directed that if the child became upset during her visit, Ms. Kiesig should permit her daughter to

speak to Dr. Pitts and should 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 as terminating visitation or contacting Dr.

Pitts. 

IV.

We affirm the judgment and remand the case to the trial court for whatever further

proceedings may be required. We also tax the costs of this appeal to Mary Jo Kiesig and her surety

for which execution, if necessary, may issue.

_____________________________ 

WILLIAM C. KOCH, JR., JUDGE