Brian T. Downing v. Charlotte M. Perry ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-FM-1419 & 14-FM-531
BRIAN T. DOWNING, APPELLANT,
v.
CHARLOTTE M. PERRY, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(DRB-1909-05)
(Hon. Jeanette J. Clark, Trial Judge)
(Argued April 22, 2015 Decided August 27, 2015)
Gregory R. Nugent, with whom Brian T. Downing, pro se, was on the brief,
for appellant.
Rebecca Gray for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and
NEWMAN, Senior Judge.
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.
Opinion concurring in part and dissenting in part by Associate Judge
GLICKMAN at page 34.
BLACKBURNE-RIGSBY, Associate Judge: This case involves a high-conflict
and prolonged child custody battle between parents, appellant Brian Downing and
2
appellee Charlotte Perry, over their two minor daughters, M.D. and E.D. The
primary issue we address in this appeal is whether the trial court abused its
discretion by concluding that a “substantial and material change in circumstances,”
D.C. Code § 16-914 (f)(1) (2012 Repl.), warranted modification of the parties’
2012 custody arrangement. The trial court’s child custody modification granted
Perry’s request to remove Downing’s tie-breaking authority in instances where the
parties have a dispute over day-to-day legal custody matters, and instead vest that
authority in a neutral Family Treatment Coordinator (“FTC”). The undisputed
evidence revealed that Downing had disallowed essentially all extracurricular
activities for the girls, and has never accepted the FTC’s recommendation when it
differed from his own position. On appeal, Downing principally contends that the
trial court erred in modifying the custody arrangement because Perry failed to
demonstrate a substantial and material change in circumstances to justify the
modification. He also argues that the trial court’s order delegated core issues of
legal custody to the FTC.1
We conclude that there was a substantial and material change in
circumstances supporting the modification of the custody agreement in this high-
1
Downing raises three additional claims which we address summarily infra
Part III.
3
conflict case, and that the trial court’s order did not delegate core issues of legal
custody to the FTC. To summarize, there was an unforeseen change in
circumstances since the parties entered into the 2012 custody agreement. In
particular, the evidence revealed that Downing was given tie-breaking authority so
that the parties would communicate more effectively, and so that he would feel
more comfortable in authorizing more extracurricular activities for M.D. and E.D.
Yet, Downing continued to exhibit a patterned negative response2 to Perry’s
parenting, which manifested itself in his consistent rejection of the FTC’s
recommendations in favor of his original position each time the tie-breaking
process was utilized. Consequently, the girls were enrolled in fewer
extracurricular activities than before the 2012 agreement, and Downing prohibited
them from participating in activities in which they had previously participated.
Notably, the trial court determined from the evidence that Downing had used his
tie-breaking authority to essentially effectuate “de facto legal custody” over the
children. Given such evidence, the trial court did not abuse its discretion in
concluding that Downing had utilized his tie-breaking authority in a manner that
was “not workable and [] not in the best interest of the minor children, e.g.,
2
Specifically, Dr. Charles David Missar, the FTC in this case, described
Downing as exhibiting “patterns of behavior that . . . were certainly much more
easily triggered and . . . of a negative set . . . when [Perry] approached” him with
her own suggestions for the girls.
4
extracurricular activities mushrooming into multiple issues affecting the minor
children’s best interest, including their mental and physical well-being.”
Accordingly, we affirm the trial court’s order modifying the parties’ custody
agreement.
I. Factual Background
This appeal is merely the latest chapter in a long-standing conflict between
the parties over their children. The instant action arises from a June 1, 2012,
custody agreement between the parties that was incorporated, but not merged, into
a June 20, 2012, consent order by the court (“2012 agreement”).
A. History of Conflict
Downing and Perry divorced in 2006, and have two minor daughters, M.D.
born May 1, 2001, and E.D. born September 19, 2003. Upon their divorce, the
parties entered into a settlement agreement which granted Perry primary physical
custody and both parties joint legal custody of their two minor daughters. Yet
about one year later, on August 3, 2007, Downing filed a motion for sole legal
custody of the children, contending that Perry made unilateral decisions pertaining
5
to legal custody matters and sought to sabotage Downing’s relationship with his
daughters.3 The parties ultimately settled the matter by reaching a new custody
agreement via a consent custody order issued on March 19, 2009 (“2009 order”).
Under the 2009 order, Downing and Perry maintained joint legal custody of the
children and approximately fifty-fifty residential custody. [Id. A-2, 3] This
agreement called for the parties to work with a FTC, who “shall assist the parents
with joint decision-making and in resolving conflicts when such joint-decision-
making is not feasible or the parties cannot agree to a joint decision.” [Id. A-11]
The FTC was authorized “to resolve the dispute by issuing a written
recommendation, which shall be binding upon the parties unless and until it is set
aside or modified by the Court.”4
Approximately one year later, on June 14, 2010, Downing filed another
motion seeking full custody of the children, making essentially the same
accusations as before, namely, that Perry made unilateral decisions and sabotaged
his relationship with the girls. Pending trial, however, the parties entered into the
3
While this initial settlement agreement and record of the 2007 dispute does
not appear in the record, the portion of the trial court’s order referencing key
provisions of this agreement and the procedural history of the 2007 dispute does
not appear to be disputed by the parties.
4
However, Downing testified (and the trial court credited his testimony)
that the FTC provisions of the 2009 order were never implemented.
6
instant 2012 agreement. Under the terms of the 2012 agreement, “[t]he parties
shall share joint legal custody of the children . . . [and] [i]n the event that the
parties are not in agreement regarding a legal custody decision which impacts the
health, education, religion or general welfare, including extracurricular activities,
of the children, the parties will consult with a FTC.” However, unlike the terms of
the 2009 order, Downing — rather than the FTC — now had final tie-breaking
authority to resolve any disagreement between the parties on legal custody issues.
The agreement explicitly states that “[b]oth parties agree that the FTC will not be
asked to make decisions or have any tie-breaking authority. The FTC will only
make recommendations.”5
According to Jamie Desjardins, the former Guardian ad litem who helped
broker the 2012 agreement, she recommended giving Downing tie-breaking
authority over disputed legal custody decisions to lower conflict. Specifically, she
“hoped” that it would “relax” Downing and “make him feel more comfortable
authorizing things [i.e., activities] for the children.” It was Desjardins’s “hope that
if [Downing] had . . . tie-breaking authority that he would feel like it would be
5
Although the 2012 agreement superseded the FTC provisions of the 2009
order, essentially “[a]ll other provisions of the Consent Custody Order entered on
March 19, 2009,” remained unchanged, and therefore were incorporated into the
2012 agreement.
7
okay for the children to do certain activities because he wouldn’t have to worry
that [Perry] would be signing them up for other activities . . . .”
Downing claimed that initially following the 2012 agreement he felt “a great
sense of relief,” and thought the parties would “never see the inside of a courtroom
again.” Perry verified that Desjardin had recommended giving Downing tie-
breaking authority, and that it would be “very risky” for Perry to go to court. Perry
hoped that, with the advice of a neutral third party, Downing “might be able to
make decisions in the best interest of [the] children.” She also thought it was the
best deal “under the circumstances,” and that a third party individual would now
“truly see the dynamics that were going on and would hopefully help [them]
address those and work through them and communicate more effectively.”
However, despite the 2012 agreement giving Downing tie-breaking
authority, Downing once again filed for sole legal and primary physical custody of
M.D. and E.D. on August 19, 2013. A multi-day evidentiary hearing on whether to
modify the 2012 custody arrangement between the parties followed.
8
B. The Evidentiary Hearing and Downing’s Use of the Tie-Breaking Power6
At the evidentiary hearing, the chosen FTC, Dr. Charles David Missar,7
testified that he began working with the parties in late-2012 or early-2013. Dr.
Missar opined that the conflict between the parties stemmed from “a long history
of mutual mistrust.” He testified that although “there are many areas of the girls’
participation [i.e., upbringing] . . . that they actually do agree on” the process of
making joint decisions “in a reasonable and logical and rational manner has
become so contentious” that even areas of agreement between Downing and Perry
are lost in the fighting. For example, in order to avoid an immediate negative
reaction from Downing, Dr. Missar counseled Perry to “phrase her suggestions” to
Downing “in different terms so as to avoid making it sound like ‘this is what I
want’ or ‘this is my suggestion.’” However, Perry did not have the same instant
negative response to Downing’s suggestions. In fact, Dr. Missar could not recall a
single instance in which Downing made a suggestion and Perry exhibited the same
instinctive negative reaction. Notably, Dr. Missar also testified that, in his
experience as an FTC and in his professional capacity working with numerous
6
For purposes of appeal, we center our recitation of the evidence presented
at the hearing on the parties’ interactions with the FTC, and Downing’s use of his
tie-breaking authority following the 2012 agreement.
7
Dr. Missar testified as an expert witness in the fields of clinical
psychology, parenting coordination, and family treatment.
9
families, he has not seen a “high conflict situation” where “it has been effective or
productive” for one of the parents to have tie-breaking authority. The trial court
credited Dr. Missar testimony that “[i]n terms of the practical effects, given the
circumstances between the parties [i.e., Downing and Perry],” there was not much
difference between Downing’s current tie-breaking authority and an award of sole
legal custody.
The record reflects three instances in which Downing’s patterned negative
response towards Perry thwarted the FTC dispute process, and resulted in Downing
exercising “de facto” legal custody of the children. On all three occasions,
Downing perfunctorily rejected the FTC’s recommendation in favor of his own
original position. First, he unilaterally prevented M.D. from receiving a HPV
vaccine, even though Dr. Missar recommended that “unilateral decision-making [in
this matter] [was] not appropriate.” In Dr. Missar’s opinion, “[t]his type of
decision goes to the heart . . . of necessary joint-parent decision-making.”
Nevertheless, in a one-sentence “tie-breaking” decision, Downing declared that,
“Right now, I do not consent to the HPV [v]accine, and it won’t be done unless I
do consent.” Second, Downing also prevented the children from attending Camp
Wright, even though the summer camp fell during Perry’s week with the children.
Dr. Missar diplomatically recommended that the parties should focus on gauging
10
the girls’ interest in the camp, and that, having resolved whether the camp fell
during Perry’s or Downing’s week, he believed that “unilateral decisions about
activities on another’s parent’s week [was] not appropriate.” Yet again, Downing
in one sentence and without explanation stated, “[M.D.] and [E.D.] will not attend
Camp Wright this summer.”
The third example merits extended discussion — Downing’s refusal to let
the girls attend Girl Scouts and another extracurricular activity, Girls on the Run
(“GOTR”). M.D. and E.D. had previously participated in both Girl Scouts and
GOTR. Downing testified that he believed “Girl Scouts [was] a great activity,”
and that GOTR was likewise a “good activity” that was “girl-oriented.” However,
following the 2012 agreement, Downing used his tie-breaking authority to prohibit
the girls from participating in either activity, even though Dr. Missar explicitly
recommended that the girls continue to participate in Girl Scouts because they both
seemed to enjoy it. Dr. Missar even implored Downing that “for the sake of the
girls and their consistency of participation with peers,” he should “make efforts to
get the girls to these activities (or at a minimum allow the other parent to do so).”
Following Downing’s decision, Dr. Missar spoke with M.D. and E.D. about their
interest in Girl Scouts and both of them indicated that they “liked participating in
Girl Scouts. They had friends who were in Girl Scouts. They like some of the
11
activities in Girl Scouts. . . . [And] [b]oth expressed some upset . . . about not
participating in Girl Scouts on an ongoing basis.” Likewise, Perry testified that,
when she informed E.D. that she could not attend GOTR that year, E.D. became
“distraught, very upset.”
Downing first testified that he thought the girls would be overly scheduled if
they participated in either activity, and that there would be “logistical challenges,”
given that Downing and Perry were divorced. Yet, later, Downing clarified that
Girl Scouts had only “one to two scheduled” events per month, and conceded that
he did not know whether M.D. was actually signed up for any extracurricular
activities at present, and that E.D. only had weekly tutoring sessions. In fact, Perry
testified that M.D. was not signed up for any extracurricular activities, and Dr.
Missar opined that the girls were involved in a “below average” number of
activities for children of their age. On cross-examination, Downing gave a
different reason for disallowing these activities, explaining that he did not approve
any activities for the girls on Perry’s custodial time because Perry had started
taking E.D. to a few Girl Scouts meetings without first “following the process,”
i.e., the 2012 agreement, which required the consent of both parents. It appears
that Downing likewise prevented the girls from attending GOTR because Perry had
reserved slots for both girls on GOTR without his prior consent. According to
12
Downing, he “wasn’t going to agree to that kind of underhanded leveraging
behavior.”
Dr. Missar’s testimony bolstered the trial court’s subsequent conclusion that
Downing’s decision to prohibit the girls from attending the extracurricular
activities was premised more on his mistrust of Perry and his patterned negative
response towards Perry’s suggestions. Specifically, Dr. Missar testified that Perry
approached him for advice on how to present the possibility of having the girls
participate in Girl Scouts and GOTR, since both girls have “longstanding
friendships” with individuals in these activities, and that “she saw them as
reasonable after-school activities that would be beneficial for the girls.” Dr.
Missar counseled Perry to couch the suggestion as if it came from the girls because
Downing “react[s] very strongly against things that [Perry] suggest[s] on her own
initiative.”
C. Trial Court’s Decision
In a thorough and detailed seventy-four page order, the trial court denied
Downing’s motion for sole legal and primary residential custody of the children.
The trial court granted Perry’s request that Downing’s tie-breaking authority over
13
legal custody disputes be removed and instead vested in the FTC. Perry made this
request in her opposition to Downing’s motion for sole legal custody, which the
court construed as a cross-motion request. The trial court concluded that Perry had
demonstrated a “material change in circumstances because she had not anticipated
[Downing’s] . . . consistent rejection of each recommendation made by Dr. Missar
regarding the minor children’s extracurricular activities.”
The trial court further observed that Downing abused his tie-breaking
authority, especially as it relates to denying requests for M.D. and E.D. to
participate in extracurricular activities. Specifically, the trial court found that
Downing’s “desire for total control and veto power over the minor children, drove
him to unreasonably reject activities that could enhance the minor children’s
lives[,]” in reference to Girl Scouts and GOTR. The trial court also considered the
“mosaic of the family dynamics” and found that Downing “has never utilized his
tie-breaking authority to make a final decision that was not in keeping with [his]
initial decision before receiving Dr. Missar’s recommendation.” The court
admonished Downing for effecting de facto sole legal custody over the children,
even though the 2012 agreement did not provide Downing with “unilateral
authority to make legal custody decisions,” nor did it grant Downing “the right to
make final decisions regarding the minor children’s general welfare when the FTC
14
process ha[d] not been engaged by the parties.” Lastly, the court credited Dr.
Missar’s expert opinion that “neither party should have tie-breaking authority in a
high conflict case such as this one.”
Ultimately, the court concluded that the current framework was “not
workable and [was] not in the best interest of the minor children,” (emphasis
added), and that “[t]he parties’ long history of an inability to communicate to reach
joint decisions on most matters concerning [the children’s] general well-being”
required the court to vest “the tie-breaking authority in the [FTC] and remov[e] it
from [Downing].”8 See generally Johnson v. United States, 398 A.2d 354, 361
(D.C. 1979). Accordingly, the trial court ordered that the FTC “shall have tie-
breaking authority regarding legal custody matters on which the parties cannot
reach an agreement,” thereby superseding the FTC provisions granting Downing
that right in the 2012 agreement. This appeal followed.
8
The trial court also took into consideration Downing’s breaches of certain
notification provisions of the prior 2009 Consent Custody Order that was
incorporated into the 2012 agreement. Specifically, the trial court concluded that
Downing had at times failed to timely notify Perry regarding the children’s travel
schedule and medical/injury issues. The court concluded that Downing’s conduct
in this regard was further evidence of the “historical and ongoing problems of the
parties’ inability to communicate appropriately regarding the minor children, as
well as [Downing’s] view that he had final decision[-]making authority even
outside of the context of the [FTC] process.”
15
II. Tie-Breaking Authority
This court “will only reverse a trial court’s order regarding child custody
upon a finding of manifest abuse of discretion.” Jordan v. Jordan, 14 A.3d 1136,
1146 (D.C. 2011) (citation and internal quotation marks omitted). Moreover, the
trial court’s rulings “come to us with a presumption of correctness.” Hutchins v.
Compton, 917 A.2d 680, 683 (D.C. 2007) (citation and internal quotation marks
omitted). The exercise of judicial discretion, however, must be grounded “upon
correct legal principles and must rest on a firm factual foundation.” Wilkins v.
Ferguson, 928 A.2d 655, 666-67 (D.C. 2007) (quoting In re T.L., 959 A.2d 1087,
1090 (D.C. 2004)). Accordingly, “[w]e review a trial court’s legal determinations
de novo but apply a clearly erroneous standard to its findings of fact.” Jordan,
supra, 14 A.3d at 1146.
On appeal, Downing argues that the trial court abused its discretion in
modifying custody by taking away his tie-breaking authority and awarding it to the
FTC. Downing makes two arguments in this regard. First, Downing argues that
there was no material change in circumstances justifying the trial court’s decision
to modify custody. Downing’s second claim, which we only briefly address, is
16
that the court abdicated its responsibility to decide “core issues” of legal custody,
and instead conferred those rights onto the FTC.
A. Change in Circumstances
We have explained that “the court can modify [custody arrangements] . . . if
it finds (1) that there has been a change in circumstances which was not foreseen at
the time the agreement was entered, and (2) that the change is both substantial and
material to the welfare and best interest of the children.” Foster-Gross v. Puente,
656 A.2d 733, 737 (D.C. 1995);9 see also D.C. Code § 16-914 (f)(1). The burden
9
To determine the best interest of the child, the trial court looks to D.C.
Code § 16-914 (a)(3), which states:
In determining the care and custody of a child, the best
interest of the child shall be the primary consideration.
To determine the best interest of the child, the court shall
consider all relevant factors, including, but not limited to:
(A) the wishes of the child as to his or her custodian,
where practicable; (B) the wishes of the child’s parent or
parents as to the child’s custody; (C) the interaction and
interrelationship of the child with his or her parent or
parents, his or her siblings, and any other person who
may emotionally or psychologically affect the child’s
best interest; (D) the child’s adjustment to his or her
home, school, and community; (E) the mental and
physical health of all individuals involved; (F) evidence
of an intrafamily offense . . . ; (G) the capacity of the
parents to communicate and reach shared decisions
(continued…)
17
of proof is on the party seeking the modification, and is by a preponderance of the
evidence. See D.C. Code § 16-914 (f)(2). On this record, we conclude that Perry
satisfied her burden of proof by a preponderance of the evidence that a substantial
and material change in circumstances warranted the trial court’s removal of
Downing’s tie-breaking authority and instead vesting that power in the FTC.
1. Material Change in Circumstances
We must first determine whether there was an unforeseen material change in
circumstances before deciding whether modification of the custody arrangement
would be in the best interest of the children. See Foster-Gross, supra, 656 A.2d at
737. It is well-documented that Downing and Perry had a fractious relationship
(…continued)
affecting the child’s welfare; (H) the willingness of the
parents to share custody; (I) the prior involvement of
each parent in the child’s life; (J) the potential disruption
of the child’s social and school life; (K) the geographic
proximity of the parental homes as this relates to the
practical considerations of the child’s residential
schedule; (L) the demands of parental employment; (M)
the age and number of children; (N) the sincerity of each
parent’s request; (O) the parent’s ability to financially
support a joint custody arrangement; (P) the impact on
Temporary Assistance for Needy Families, or Program
on Work, Employment, and Responsibilities, and medical
assistance; and (Q) the benefit to the parents.
18
that affected their ability to make legal custody decisions for their children.
Downing repeatedly sought full custody of the children, accusing Perry of
sabotaging his relationship with the girls and unilaterally making decisions on their
behalf, even though the parties had equal legal rights. In particular, the record
reflects that Downing’s biggest concern and source of discord was Perry’s
supposed circumvention of his consent in signing the children up for
extracurricular activities. Consequently, in this context, the former Guardian ad
litem, Desjardins, explained that the 2012 agreement, which gave Downing tie-
breaking and therefore final decision-making authority, was an attempt on her part
to reduce conflict and “relax” Downing, so that he would “feel more comfortable
authorizing things [i.e., activities] for the children.” Downing corroborated this
sentiment, claiming he initially felt “a great sense of relief.” Likewise, Perry
testified that she expected that a neutral FTC would help her and Downing
communicate better, thereby allowing Downing to “make decisions in the best
interest of [the] children.”
The expectations of the parties in entering the 2012 agreement, i.e., the FTC
process in which Downing had tie-breaking authority would improve
communications and increase the children’s extracurricular activities, were clearly
not met. Notably, while it is undisputed that the girls previously attended both
19
GOTR and Girl Scouts, once Downing received tie-breaking authority, he
suddenly disallowed both activities, which left the girls with — in Dr. Missar’s
expert view — a “below average” number of activities. In fact, other than tutoring,
it does not appear that the children were involved in any extracurricular activities
at all. Downing precluded the girls from attending, despite Perry’s wish that they
participate, and despite Dr. Missar’s recommendation that they participate on the
basis that such activities would ensure “their consistency of participation with
peers,” and was thus in their best interests.10
Downing’s refusal was unreasonable — he explained that he refused these
activities, which he himself characterized as “great” or “good” activities, because
Perry did not follow the “process” of asking for his consent first. Downing’s
reason for disallowing these activities was more about his issues with Perry and his
10
Our dissenting colleague argues that there was no material change in
circumstances here because the parties’ relationship had been contentious both
before and after the 2012 agreement, and that Perry should have foreseen that by
giving Downing tie-breaking authority he could reject her and the FTC’s
recommendations on day-to-day legal custody matters. Post at 35-36. Yet, the
dissent’s argument is explicitly belied by the record evidence, which shows that
one of the primary and specific reasons the parties entered into the 2012 agreement
was so that Downing would feel more comfortable in allowing the girls to
participate in more extracurricular activities. See supra at 18. Not only did that
not happen, the girls actually participated in fewer or no extracurricular activities
following the agreement. Neither of the parties had foreseen this result when they
entered into the 2012 agreement.
20
patterned negative response to her suggestions, and does not promote the best
interests of the children. Further, the hope that the 2012 agreement would lead to
better communication between Perry and Downing was also unrealized. Downing
failed to ever use his tie-breaking authority in a manner inconsistent with his
original position, and essentially acted as if he had de facto sole legal custody of
the children.
The trial court found that Perry had established by a preponderance of the
evidence that there had been a material change in circumstances because Perry
“had not anticipated [Downing’s] undisputed, consistent, rejection of each
recommendation made by Dr. Missar regarding the minor children’s
extracurricular activities.” See also Wilson v. Craig, 987 A.2d 1160, 1164 (D.C.
2010) (concluding that there was a material change in circumstances where the
trial court found that the parties had entered into the agreement expecting a
reduction in hostilities, but that the conflict had instead continued and escalated).
The record supports the trial court’s findings and conclusion, and we discern no
error.
In Wilson v. Craig, we similarly concluded that the trial court did not err in
finding an unforeseen material change in circumstances justifying a modification
21
in custody. In that case, the parties had entered into a custody arrangement hoping
that it would moderate the child custody disagreements between the parents,
improve the contentious relationship between the parents, and reduce hostility of
the parents towards each other. Id. at 1164. In Wilson, we concluded that the trial
court did not abuse its discretion in concluding that an unforeseen material change
was established where the conflict between the parties had “escalated” since the
execution of the agreement. Id. Similarly, in this case, the trial court did not err in
concluding that Perry could not have foreseen that Downing would use his tie-
breaking authority to exercise de facto sole legal custody over the children by
precluding Perry from exercising her equal rights as a co-parent and by blocking
even more of the children’s extracurricular activities than before.
2. Best Interest of the Children
Further, the record reflects that Downing’s rejection of the girls’
extracurricular activities had a material impact on the children’s well-being. In
particular, Dr. Missar noted in his recommendation that the girls should participate
in Girl Scouts because it was important for the girls to have “consistency of
participation with peers.” The trial court also observed that the lack of
22
extracurricular activities plainly could have an adverse effect on the minor
children’s mental and physical well-being.
We are also mindful that this is a high-conflict child custody case, and the
fact that Downing has never utilized his tie-breaking authority to make a decision
contrary to his initial position. Such a result is not in the best interests of the
children as it is tantamount to giving Downing de facto sole legal custody over the
children. See, e.g., Jordan, supra, 14 A.3d at 1159 (concluding that a parent’s
right to raise her children must be reconciled with the other parent’s same interest,
and with the principle that a biological parent’s rights must ultimately give way
before the children’s best interest); Prost v. Greene, 652 A.2d 621, 627 (D.C.
1995) (concluding that conduct by one parent that “interferes with the fulfillment
of [the] children’s need for the guidance and love of the [other parent] may have a
serious effect on the welfare of the children”) (emphasis added).11
11
The dissent argues that, unlike in Wilson v. Craig, where the conflict
between the parents had escalated to such an extent as to cause the children to
experience “psychological and emotional distress,” there was no comparable harm
to M.D. and E.D. here based on Downing’s refusal for them to participate in
extracurricular activities; our dissenting colleague points to the fact that, in many
other respects, M.D. and E.D. were well-adjusted and happy. Post at 36-37. We
disagree. The standard for modifying custody is not whether the children are
necessarily “harmed” or are in eminent danger by the unforeseen change in
circumstances, but simply whether the unforeseen change was “substantial and
material to the welfare and best interest of the children.” Foster-Gross, supra, 656
(continued…)
23
The trial court analyzed whether tie-breaking authority should be taken away
from Downing based on the “best interests of the child” statutory factors. See
D.C. Code § 16-914 (a)(3); supra note 9. In concluding that the best interest of the
children favored removing Downing’s tie-breaking authority, the trial court
focused on the fractious nature of the parents’ relationship and Downing’s abuse of
his tie-breaking authority. In particular, Downing’s “unreasonable” decision to
exclude the girls from Girl Scouts and GOTR, which the court found was based
more on his need for control than him seeking to enhance the children’s lives, and
Downing’s use of the tie-breaking power to make “unilateral” decisions regarding
legal custody matters. See generally D.C. Code § 16-914 (a)(3)(G) (“[T]he
(…continued)
A.2d at 737. As the trial court found, Downing’s consistent rejection of the girls’
participation in extracurricular activities (especially during such crucial formative
years) constituted a substantial and material change in circumstances that
negatively affected the girls’ best interest. Dr. Missar himself noted that such
activities were important because they allowed the girls to have “consistency of
participation with peers,” or in more plain-spoken language: it is important for
teenage girls to participate in activities with their friends for social development.
In our view, this is not inconsequential to the best interests of the children.
Further, we emphasize that it is also important to look at this case as a
whole, rather than simply focusing on Downing’s decision regarding Girl Scouts
and GOTR. A pattern had developed demonstrating that Downing was using his
tie-breaking authority as a form of de facto sole legal custody, even though both
parties had equal rights. Further, there was evidence that Downing made decisions
based more on his patterned negative response to Perry, sometimes in
contravention to the children’s best interests. Consequently, M.D.’s and E.D.’s
best interests were not being served by allowing Downing to continue to have tie-
breaking authority. See supra at 22, 23.
24
capacity of the parents to communicate and reach shared decision affecting the
child’s welfare[.]”). The court also considered Dr. Missar’s expert testimony that
neither party should have tie-breaking authority in a high-conflict case such as this.
See Wilson, supra, 987 A.2d at 1165 (stating that the judge’s findings were well-
supported by expert testimony and by first-hand observation of the demeanor of
the parties and witnesses). Thus, in the trial court’s view, the parties would benefit
from continued joint legal and physical custody of the minor children, but with the
FTC having tie-breaking authority regarding legal custody matters, “[g]iven
[Downing’s] past rigid exercise of his tie-breaking authority” which the court
found was premised more on Downing’s patterned negative response of Perry’s
suggestions, rather than making decisions in the children’s best interest. See
generally D.C. Code § 16-914 (a)(3)(Q) (“[T]he benefit to the parents.”). Based on
this record, we discern no abuse of discretion in the trial court’s determination that
it was in the best interests of the children to remove Downing’s tie-breaking
authority and vesting it in a neutral FTC.
Downing counters that the trial court’s determination that he had failed to
prove a change in circumstances for purposes of his motion for sole legal custody
precluded the court from thereafter concluding that Perry, on the other hand,
successfully proved a change in circumstances, supporting the court’s decision to
25
divest Downing of his tie-breaking authority. Downing argues that the trial court
had observed the minor children to be “happy, well-adjusted socially, and . . .
doing well in school.” We are unpersuaded by this argument. As the moving party
for sole legal custody, it was Downing’s burden to prove that there was a material
change in circumstances warranting giving him full legal custody of the children.
See D.C. Code § 16-914 (f)(2). He failed to do that. His failure does not thereafter
preclude Perry from proving that Downing’s behavior subsequent to the 2012
agreement constituted a different material change in circumstances warranting the
removal of his tie-breaking authority.
Here, the trial court concluded that Perry had indeed proved by a
preponderance of the evidence that Downing’s tie-breaking authority was not in
the children’s best interests because he had unreasonably used this authority to
preclude his daughters from joining beneficial extracurricular activities to their
mental and physical detriment. The record supports the trial court’s findings that
Downing’s categorical rejection of all recommendations by the FTC after Downing
was given tie-breaking authority constituted a material change in circumstances
and not in the girls’ best interest.
26
B. Delegation of Authority
We next briefly address Downing’s claim that the trial court’s order
erroneously delegated all final decision-making authority over legal custody
matters, including the “core issues” of visitation and custody, to the FTC. We
conclude that this argument is without merit.
In Jordan, we observed that, pursuant to Super. Ct. Dom. Rel. R. 53, the trial
court is authorized “to delegate decision-making authority over day-to-day issues
to [a] parenting coordinator [FTC].” 14 A.3d at 1156 (emphasis added). However,
we clarified that the “court’s ability to delegate authority to a special master or
parenting coordinator has limits.” Id. Specifically, “a trial court may not abdicate
its responsibility to decide the core issues of custody and visitation[,]” because
“[b]y statute, when custody of a child is disputed, the trial court must decide what
type of custody arrangement is appropriate.” Id. (citing D.C. Code § 16-914
(a)(1)(A)) (emphasis added). Thus, in Jordan, we approved the trial court’s order
which made clear that the parenting coordinator may “make decisions resolving
day-to-day conflicts between the parties that do not affect the court’s exclusive
jurisdiction to determine fundamental issues of custody and visitation.” Id.
(emphasis in original).
27
Here, the trial court’s order states the following:
FURTHER ORDERED, that the Family Treatment
Coordinator shall have tie-breaking authority
regarding legal custody matters on which the
parties cannot reach an agreement; the 2012
Consent Custody Order is modified by deleting
paragraphs 2.iv. and 2.v. and 2.vii and all other
provisions of the Order shall remain in [e]ffect[.]
The paragraphs of the 2012 order that the trial court deleted were essentially those
that limited the FTC’s authority to making a recommendation on a dispute for
Downing’s review and approval.12 Further, the trial court explicitly stated that “all
other provisions of the [2012 agreement] shall remain in effect.”
Paragraph 2.i. of the 2012 agreement, which remains in effect, clarifies that
the FTC process will be utilized only where there is a dispute “regarding a legal
custody decision which impacts the health, education, religion or general welfare,
including extracurricular activities, of the children[,]” i.e., day-to-day matters. In
12
Paragraph 2.iv: “Once the FTC has made a recommendation, Mr.
Downing will inform Ms. Perry within 48 hours of his decision.”
Paragraph 2.v: “Both parties agree that the FTC will not be asked to make
decisions or have any tie-breaking authority. The FTC will only make
recommendations.”
Paragraph 2.vii: “Within four weeks of execution of this Agreement, each
party shall provide Jamie Desjardins with two names of potential FTCs. Ms.
Desjardins shall then select the FTC.”
28
other words, although the trial court’s order modified custody by vesting the tie-
breaking authority in the FTC, the FTC’s decision-making powers are still
expressly governed by the preserved portions of the 2012 agreement, which make
clear that it is limited to disputes regarding day-to-day matters involving the
children, and not the “core issues of custody and visitation.” Jordan, supra, 14
A.3d at 1156.13
III. Other Issues
Downing raises three additional issues, which we can address more
summarily. First, Downing argues that, because Perry only filed an opposition to
his motion seeking sole legal custody, he was not on notice that she also sought
13
Moreover, any residual confusion on this issue was explained away by
Judge Irving in a later order denying Downing’s motion to alter or amend the
judgment. Specifically, Judge Irving clarified that “Judge Clark intended for the
parties to make joint decisions concerning their children but, when a dispute
ar[ises] regarding day-to-day issues justifying engagement of the FTC, that the
FTC would have final decision making authority over continuing disputes
stemming from his/her recommendation.” Judge Irving further observed that
“[a]uthority to determine custody or visitation would be beyond the scope of the
FTC process, and it does not appear that the parties themselves would ever have
had tie-breaking authority over such matters.” As Judge Irving clarified the legal
significance of the trial court’s initial order modifying the 2012 agreement,
Downing’s attempt on appeal to argue to the contrary is without merit. See, e.g.,
Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (“It is peculiarly within the
province of [the trial court] . . . to determine the meaning of its own order.”
(citations and internal quotation marks omitted)).
29
removal of his tie-breaking authority. Consequently, he argues, the trial court’s
decision to grant Perry’s request to remove his tie-breaking authority violated his
due process rights. A related issue was raised by Downing’s trial counsel prior to
the start of the hearing in which he argued that Perry “simply opposed” Downing’s
motion for custody, and therefore “should be bound by [her pleading].” We are
unpersuaded by this argument. The court’s decision, while informed by the initial
pleadings, was ultimately decided by looking to the evidence in the record. We
conclude that Downing’s argument on appeal is similarly without merit. As we
stated in Moore v. Moore, 391 A.2d 762, 768 (D.C. 1978):
Whether parties have impliedly contested a matter
i.e., whether parties recognize that an issue not
stated by the pleadings entered the case . . . is
determined by searching the trial record for
indications that the party contesting the
amendment received actual notice of the injection
of the unpleaded matters, as well as an adequate
opportunity to litigate such matters and to cure any
surprise from their introduction.
(Emphasis added) (Citations omitted). Here, the record demonstrates that
Downing was on actual notice of Perry’s request to remove his tie-breaking
authority based on her proposed findings of fact and conclusions of law submitted
to the court prior to the hearing. The first page of Perry’s proposed order, which
was available to both parties prior to the start of the hearing, made clear that Perry
sought to revoke Downing’s tie-breaking authority by stating that “the [c]ourt
30
modifies the current custody arrangement between [Downing] and [Perry] to
eliminate [Downing’s] tie-breaking authority . . . .” The fact that Downing’s trial
attorney raised the issue before the trial court prior to the hearing only further
proves that he was on notice, and that he had ample opportunity to litigate the
matter during the hearing.
Second, Downing argues that the trial court abused its discretion by
refusing to consider the “overwhelming evidence” that favored him in rejecting
his motion for sole legal custody. He points to former Guardian ad litem
Desjardins’s lay testimony in which she recommended that Downing be awarded
sole legal custody, and FTC Dr. Missar’s expert testimony in which he appeared
to have placed more of the blame on Perry.14
While the “trial court may not arbitrarily disregard, disbelieve, or reject an
expert’s uncontradicted testimony . . . once there is some basis in the record for
the judge’s refusal to accept an expert’s conclusion, we will not [substitute] our
judgment against that of the finder of fact who saw and heard the witness testify.”
14
Specifically, in response to Downing’s trial counsel’s question, Dr.
Missar, who was called by Downing as a witness, agreed that “[i]n terms of many
of the circumstances that have been brought to [him] for specific addressing of
conflict,” Perry was “largely the problem in the dealings of these two people in
making decisions about their children[.]”
31
Prost, supra, 652 A.2d at 629 (citations, internal quotation marks, and brackets
omitted). Relatedly, it is well-established that “[a]n appellate court will not
redetermine the credibility of witnesses where, as here, the trial court had the
opportunity to observe their demeanor and form a conclusion.” In re S.G., 581
A.2d 771, 775 (D.C. 1990) (citation and internal quotation marks omitted).
Although admittedly there was some evidence that appeared to favor
Downing, the trial court was well within its purview as the factfinder to discount
or minimize Dr. Missar’s and Desjardin’s testimony favoring Downing based on
ample contrary evidence in the record. Specifically, the trial court’s order
concluded that Downing had failed to show a substantial and material change in
circumstances warranting giving him sole legal custody of the children primarily
because none of his accusations levied against Perry, i.e., that she endangered the
children, withheld medical treatment and information, and alienated Downing
from the children, were substantially borne out by the evidence, and were rather
essentially attempts by Downing “to make a mountain out of a mole hill.”
Further, in denying his motion, the trial court was also not blind to Downing’s
own behavior, which the trial court characterized as a “desire for total control and
veto power over the children.” Notably, the trial court weighed against
Downing’s motion his own failure to abide by the terms of the custody agreement,
32
such as his failure to timely notify Perry regarding any medical issues that arise
with the children. Given this evidence, along with the many character witnesses
who testified in favor of Perry’s parenting and the trial court’s conclusion that
some of Downing’s allegations were unreliable based on his own contradicted
testimony, the trial court was well within its authority to deny Downing’s motion
for sole legal custody. Accordingly, we will not supplement our judgment for that
of the trial court. Prost, supra, 652 A.2d at 629.
Third, Downing claims that the trial court erred in awarding Perry
attorney’s fees and costs totaling $18,111.02. His main argument is that Perry
was represented on a pro bono basis and her retainer stated that the firm would
“absorb its [internal costs] . . . and cover necessary [external costs] up to
$2,500[,]” and therefore Perry was not entitled to fees and costs that she was not
legally obligated to pay. This argument is without merit. Preliminarily, the 2012
custody agreement states that “[i]f either party is found to be in breach of this
Agreement, the non-prevailing party will be responsible for the fees and expenses
incurred by the other party relating to the breach.” The contract obligates
Downing to pay any attorney’s fees incurred by Perry in defending her parental
rights. See Assidon v. Abboushi, 16 A.3d 939, 942 (D.C. 2011). As we recently
stated in Saxon v. Zirkle, 97 A.3d 568, 576 (D.C. 2014), “this court and others
33
have held that attorney’s fees may be awarded even though representation was
provided on a pro bono basis.” Consequently, the fact that Perry was represented
on a pro bono basis did not preclude her from being awarded attorney’s fees and
costs for the services that the firm had provided. See, e.g., Centennial
Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 679 (10th Cir. 2012) (observing
that many “courts construe the term attorney fees to mean, not the amount actually
paid or owed by the party to its attorney, but the value of attorney services
provided to the party”) (emphasis in original).
IV. Conclusion
We affirm the trial court’s decisions in all respects. The trial court did not
abuse its discretion by modifying the custody agreement by removing Downing’s
tie-breaking authority and vesting it in the neutral FTC. Further, we see no error
in the trial court’s decision denying Downing’s motion for sole legal custody, or
in awarding Perry attorney’s fees and costs. Accordingly, the order is
Affirmed.
34
GLICKMAN, Associate Judge, concurring in part and dissenting in part:
Although I join the majority opinion in other respects, I would reverse the trial
court’s decisions to divest Mr. Downing of his tie-breaking authority with respect
to custody disagreements and to give such authority to a Family Treatment
Coordinator. A trial court may modify a voluntarily negotiated child custody
agreement “only if it finds (1) that there has been a change in circumstances which
was not foreseen at the time the agreement was entered, and (2) that the change is
both substantial and material to the welfare and best interest of the children.” 1 In
my view the evidence of record does not support a finding that these conditions
were met in this case.
In upholding the trial court’s ruling, my colleagues agree with its conclusion
that Downing abused his tie-breaking authority by his “consistent rejection of the
FTC’s recommendations in favor of his original position each time the tie-breaking
process was utilized.” Ante at 3. Supposedly, Downing “used his tie-breaking
authority to “essentially effectuate ‘de facto legal custody’” over his daughters. Id.
1
Foster-Gross v. Puente, 656 A.2d 733, 737 (D.C. 1995); D.C. Code § 16-
914 (f)(1) (2012 Repl.) (“An award of custody may be modified or terminated
upon the motion of one or both parents, or on the Court’s own motion, upon a
determination that there has been a substantial and material change in
circumstances and that the modification or termination is in the best interest of the
child.”).
35
I think this is hyperbole. In point of fact, as my colleagues acknowledge, ante at 9,
the record reflects only three instances in which Downing exercised his tie-
breaking authority; and the trial court based its decision on only one of them,
Downing’s “unreasonable” objection to his daughters’ participation in two
extracurricular activities, Girl Scouts and Girls on the Run.2 In my opinion, the
record does not support a conclusion that Downing’s actions on these occasions
amounted to an unforeseen change of circumstances following the parties’ 2012
custody agreement that was substantially and materially adverse to the welfare and
best interest of the children.
First, there was no unforeseen change of circumstances. The relationship
between Downing and Perry was contentious both before and after they entered
into the 2012 agreement. There is nothing in the record to suggest that their
relationship had changed for the worse.3 Moreover, as my colleagues
2
The issues on the other two occasions were whether his eleven-year-old
daughter should receive the HPV vaccine, and whether the children should attend
summer camp.
3
In fact, the evidence suggests that the acrimony between the parties had
declined somewhat. Dr. Missar, the Family Treatment Coordinator, testified that
both parties were attempting to comply with his recommendations, and that the
improvement in their relationship was “a work in progress.” Despite a consistent
pattern of contentious behavior, Dr. Missar perceived that the incidents of conflict
between the parties were less dramatic following the 2012 agreement.
36
acknowledge, the involvement of the children in extracurricular activities was a
principal “source of discord” even prior to the 2012 agreement.4 While Perry
might have hoped that the 2012 agreement would lead to improved
communications and reduce the conflict in this area, the fact remains that she
expressly contemplated and agreed that Downing would have the final say, and
that he would be free to reject her wishes and the Family Treatment Coordinator’s
recommendations with regard to the children’s extracurricular activities. It
therefore cannot be maintained that Downing’s exercise of the very authority Perry
agreed to give him was an unforeseen change of circumstances.
Second, Downing’s exercise of his tie-breaking power was not substantially
and materially contrary to the welfare and best interest of the children. This case is
unlike Wilson v. Craig,5 where this court upheld the modification of a custody
agreement because of its unforeseen and seriously harmful consequences for the
parties’ children. In that case, as the trial judge found, the parents had expected
their agreement would reduce the conflicts between them, but instead “[t]he
hostility had increased to an extent they had not anticipated and that was materially
4
Ante at 18 (“In particular, the record reflects that Downing’s biggest
concern and source of discord was Perry’s supposed circumvention of his consent
in signing the children up for extracurricular activities.”).
5
987 A.2d 1160 (D.C. 2010).
37
affecting the welfare of the children.”6 Expert testimony established that the
children were having trouble at school and had “discernible, definable, diagnosable
conditions which … [made] it more difficult for them to cope” with the custody
arrangements, and the court found that the children were experiencing
“psychological and emotional distress.”7
There is no evidence of comparable harm to the children in this
case. Everyone who testified at trial said the children were happy, physically
healthy, doing well in school, doing well socially, and (miraculously) unaware of
the pending litigation. There was testimony that the girls participated in a below
average number of extracurricular activities for children their age because
Downing refused to allow them to participate in Girl Scouts and Girls on the Run.
My colleagues call this refusal “unreasonable” and assert that his reason for
disallowing the activities did “not promote the best interests of the children.” Ante
at 19-20. However, even if Downing’s refusals were motivated by his
consternation with Perry, the fact remains that there was no evidence to suggest
6
Id. at 1164.
7
Id. at 1162.
 38
that his decisions were harming the children in any way, let alone substantially and
materially.8
In sum, while it may have been unwise for the parties to agree to give
Downing tie-breaking authority, I do not believe the trial court had the authority to
change their agreement without a supportable finding of an unforeseen, substantial,
and material change in circumstances. “A motion for modification ... is not to be
used as a pretense to relitigate the equities of the prior decree.” 9 Even if the trial
court’s modification is better for the children, that is not legally sufficient. We
have held that the trial court cannot skip over finding an unforeseen, material
change in circumstances, and move directly to fashioning a new custody
arrangement based on a “best interest of the child” analysis.10
For the foregoing reasons, I respectfully dissent.
8
Dr. Missar testified, in fact, that Downing’s “decision-making abilities are
very solid,” and that in general he demonstrated “a very rational, logical
assessment of [his daughters’] needs, how to intervene in them, how to provide for
them, and make decisions in their best interests.”
9
Graham v. Graham, 597 A.2d 355, 357 n. 5 (D.C.1991).
10
Foster-Gross, 656 A.2d at 737-38.