Natalie Khawam v. Grayson P. Wolfe

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 12-FM-76, 12-FM-839, 12-FM-898, & 12-FM-1324
NATALIE KHAWAM, APPELLANT,
V.
GRAYSON P. WOLFE, APPELLEE.
Appeals from the Superior Court of the District of Columbia
(DRB-921-09 & DRB-1294-10)
(Hon. Fern Flanagan Saddler and Hon. John H. Bayly, Jr., Motions Judges)
(Hon. Neil E. Kravitz, Jr., Trial Judge)
(Argued April 2, 2013 Decided February 6, 2014)
Tillman Finley and Gregory F. Jacob, with whom Daniel Marino was on the
brief, for appellant.
Sandra G. Wilkof for appellee.
Lori Alvino McGill and Kerry J. Dingle filed a brief on behalf of the
National Organization for Women Foundation, et al., as amici curiae in support of
appellant.
Before FISHER and MCLEESE, Associate Judges, and REID, Senior Judge.
MCLEESE, Associate Judge: In these consolidated cases, the trial court
granted the parties a decree of absolute divorce and decided a number of related
issues, including the arrangements for child custody and visitation. Appellant
2
Natalie Khawam raises several claims on appeal. First, she challenges the trial
court’s final order on custody and visitation, on the grounds that the court lacked
jurisdiction and that, on the merits, the court committed several legal and
procedural errors. Second, she contends that the trial court erroneously denied her
motion to modify the custody order. Third, she argues that the divorce decree
should be modified to impose the same reporting obligations on each party.
Finally, she seeks reversal of the trial court’s order awarding attorney’s fees to her
former husband, appellee Grayson Wolfe. We affirm the divorce decree and the
initial custody and visitation orders, but we remand for further proceedings with
respect to Ms. Khawam’s motion to modify the custody order. We dismiss the
appeal of the attorney’s fees award for lack of a final order.
I.
Except as noted, the following facts are undisputed. Ms. Khawam and Mr.
Wolfe met in September 2007 in the District of Columbia, where they both had
lived for several years. They married in April 2008 on the grounds of Georgetown
University in the District. Their son was born in October 2008, at Georgetown
University Hospital in the District. Shortly after birth, the child was readmitted to
Georgetown University Hospital for treatment of a staph infection.
3
In the months before their wedding, Ms. Khawam and Mr. Wolfe lived
together in Ms. Khawam’s apartment in the District. They continued to live in the
District after the birth of their son, until they relocated to Arlington, Virginia, in
January 2009. The parties dispute, and the trial court did not decide, whether the
parties intended to relocate to Virginia permanently or instead only temporarily
while searching for a permanent residence in the District.
After a bitter argument in early March 2009, Ms. Khawam left the marital
home and went to Tampa, Florida, taking the child with her against Mr. Wolfe’s
express objections. Mr. Wolfe repeatedly demanded that Ms. Khawam disclose
her precise location and return with the child, but Ms. Khawam refused. Several
weeks after Ms. Khawam left for Florida, Mr. Wolfe filed a complaint here in the
District seeking custody of the child. Aware of the pending lawsuit in the District,
but not yet served with process, Ms. Khawam filed a petition for divorce and
custody of the child in Florida state court.
In early April 2009, the Superior Court issued an order granting Mr. Wolfe
temporary sole custody of the child. That order was served on Ms. Khawam in
Tampa, as was notice of the pending custody case in the District. After receiving
the notice, Ms. Khawam sought an ex parte temporary “stay-away” injunction
4
against Mr. Wolfe in Florida, alleging that Mr. Wolfe had committed acts of child
abuse and domestic violence. A Florida state court granted the requested
temporary injunction and subsequently issued additional temporary injunctions. In
June 2010, however, the Florida state court determined that it lacked jurisdiction
over Ms. Khawam’s divorce petition and domestic-violence petitions and therefore
dismissed the petitions and the corresponding temporary injunctions.
Ms. Khawam moved to dismiss Mr. Wolfe’s custody case in the District,
arguing that the Superior Court lacked jurisdiction and that the District was an
inconvenient forum. After an eighteen-day evidentiary hearing, the trial court
(Saddler, J.) denied the motion to dismiss.
In May 2010, Mr. Wolfe filed for divorce in the Superior Court. Ms.
Khawam moved to dismiss, alleging improper service of process and lack of
jurisdiction. The trial court (Bayly, J.) denied the motion to dismiss.
The custody and divorce cases were consolidated, but the trial court
(Kravitz, J.) held separate, lengthy trials in each case. After the custody trial, the
court granted sole custody of the child to Mr. Wolfe, but allowed Ms. Khawam
supervised visitation with the child. After the divorce trial, the court issued a
5
judgment of absolute divorce ordering Ms. Khawam to pay child support to Mr.
Wolfe and to report any new employment to Mr. Wolfe within forty-eight hours.
The court denied without a hearing Ms. Khawam’s motion to modify the custody
order. Finally, the court issued an order partially granting Mr. Wolfe’s request for
attorney’s fees. Ms. Khawam appeals from all four orders.
II.
We first address Ms. Khawam’s contention that the Superior Court lacked
jurisdiction to issue the custody order. We conclude that the trial court correctly
exercised jurisdiction.
In finding that it had jurisdiction to issue the custody order, the trial court
relied upon D.C. Code § 16-4602.01 (a)(2) (2012 Repl.), which is part of the
District of Columbia’s Uniform Child Custody Jurisdiction and Enforcement Act
(“DC UCCJEA”). In re J.R., 33 A.3d 397, 400 (D.C. 2011). Under that provision,
the District of Columbia has jurisdiction to enter an initial custody order if (1) the
child at issue does not have a “home state” within the meaning of the DC
UCCJEA, or the home state has deferred to the District; (2) the child and at least
one of the child’s parents have a “significant connection with the District other
6
than mere physical presence”; and (3) “[s]ubstantial evidence is available in the
District concerning the child’s care, protection, training, and personal
relationships . . . .” D.C. Code § 16-4602.01 (a)(2). In determining whether these
requirements are met, the trial court considers the situation at the time the initial
custody application is filed. Cf. In re B.B.R., 566 A.2d 1032, 1040 (D.C. 1989)
(interpreting similarly worded provision of Parental Kidnapping Prevention Act,
28 U.S.C. § 1738A (c)(1)(b)(ii)(I) (1982)).1
Ms. Khawam does not dispute that the child in this case had no home state
and that at least one of the child’s parents had a significant connection with the
District. Ms. Khawam does challenge the trial court’s conclusions that the child
1
The trial court applied the holding of In re B.B.R. to the DC UCCJEA, and
both of the parties in this case endorse that ruling. We agree with the trial court
and the parties that In re B.B.R.’s holding is equally applicable to the DC
UCCJEA. We note, however, that in at least one case this court appears to have
relied on factual developments after the filing of a custody application in
reviewing a trial court’s determination that the requirements of D.C. Code
§ 16-4602.01 (a)(2) had been met. Carl v. Tirado, 945 A.2d 1208, 1210 (D.C.
2008) (per curiam). The court in Carl did not discuss In re B.B.R. and did not
explicitly address whether reliance on post-petition factual developments was
legally permissible. Id. Carl therefore is not binding authority on the matter. See
generally, e.g., Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994) (“The rule of
stare decisis is never properly invoked unless in the decision put forward as
precedent the judicial mind has been applied to and passed upon the precise
question.”) (internal quotation marks omitted).
7
had a significant connection with the District and that substantial evidence
concerning the child was available in the District.
Generally, we review legal determinations concerning the trial court’s
jurisdiction de novo and we review factual determinations concerning the trial
court’s jurisdiction for clear error. See, e.g., Monteilh v. AFSCME, AFL-CIO, 982
A.2d 301, 302 (D.C. 2009). This court does not appear to have decided whether
“significant connection” and “substantial evidence” determinations under the
UCCJEA are legal rulings to be reviewed de novo or instead should be reviewed
deferentially. Courts in other jurisdictions take varying approaches to that
question. Compare, e.g., Steven v. Nicole, 308 P.3d 875, 879 (Alaska 2013) (using
“abuse of discretion” standard in reviewing trial court’s determination under
Alaska UCCJEA that substantial evidence regarding child was available in state),
with, e.g., In re Marriage of Sareen, 62 Cal. Rptr. 3d 687, 691, 695 (Ct. App.
2007) (conducting de novo review of jurisdictional determination under California
UCCJEA). For current purposes, we assume without deciding that we should
review de novo the trial court’s findings of “significant connection” and
“substantial evidence” under D.C. Code § 16-4602.01 (a)(2).2
2
With one exception, Ms. Khawam does not challenge on appeal any of the
trial court’s purely factual findings relating to jurisdiction. The exception involves
(continued . . .)
8
A.
In finding that the child had a significant connection to the District, the trial
court relied on the following: (1) the child was born in the District; (2) the child
lived in the District for the first two-and-a-half months of his life; (3) the child
received medical treatment in the District; (4) both of the child’s parents had
significant connections with the District; and (5) Mr. Wolfe continued to live and
work in the District. Considering that the child was only five months old when Mr.
Wolfe filed the custody suit, we conclude that the child had a significant
connection to the District.
Although we have not located a case that is on all fours with this case, this
court and others have found a “significant connection” in circumstances
comparable to those of this case. See, e.g., In re B.B.R., 566 A.2d at 1039-40
(under Parental Kidnapping Prevention Act, four-month-old child had significant
connection with California, where child was born in California, child spent first
two days of his life in California, parties signed adoption agreement concerning
(. . . continued)
the trial court’s finding that Mr. Wolfe began residing in the District of Columbia
shortly before he filed the custody petition. The trial court did not commit clear
error by making that finding based on the conflicting evidence before it.
9
child in California, and child’s biological mother and sibling lived in California);
In re D.S., 840 N.E.2d 1216, 1223 (Ill. 2005) (newborn child had significant
connection to Illinois, where child’s father and half-siblings lived in Illinois and
child’s mother had lived in Illinois until at least morning of child’s birth); Shields
v. Kimble, 375 S.W.3d 738, 742 (Ark. Ct. App. 2010) (four-year-old child had
“significant connection” to Arkansas, where child had lived in Arkansas for first
three years of life, child had extended family living in Arkansas, and parental
visitation occurred in Arkansas); In re Marriage of Sareen, 62 Cal. Rptr. 3d at 695
(two-year-old child had “significant connection” to California, where child had
lived in California for three months, child had attended daycare in California,
child’s uncle lived in California, and child’s mother was working part-time and
receiving public assistance in California); cf. Carl v. Tirado, 945 A.2d 1208, 1210
(D.C. 2008) (infant had “significant connection” to District of Columbia, where
father lived in District, child was baptized in District, child was cared for by father
during day in District, extended family lived in District, and mother had brought
suit for child support in District).3
3
Ms. Khawam relies upon In re Adoption of C.L.W., 467 So. 2d 1106, 1110
(Fla. Dist. Ct. App. 1985) (per curiam) (infant did not have “significant
connection” with Pennsylvania, because infant’s “only connection with
Pennsylvania is the mere fact of her birth”). The infant in that case had been born
in Pennsylvania and lived there for only three days before being removed to
Florida. Id. at 1108, 1110. In contrast, the child in this case had resided in the
(continued . . .)
10
We are not persuaded by Ms. Khawam’s arguments to the contrary. First,
Ms. Khawam argues that the trial court could consider only connections that
existed at the moment the custody suit was filed. According to Ms. Khawam, it
therefore is irrelevant that the child had been born in the District and had resided in
the District for the first two-and-a-half months of his life. We disagree. The
provision at issue requires that the child “have a significant connection” to the
District. D.C. Code § 16-4602.01 (a)(2)(A). Neither the wording nor the logic of
that provision suggests that the trial court must ignore all circumstances that
occurred before the filing of the custody petition. To the contrary, in determining
whether a child or parent has a “significant connection” to a jurisdiction, this court
and others have repeatedly considered events and circumstances that occurred
before the filing of a custody petition. See, e.g., In re B.B.R., 566 A.2d at 1039
(considering facts that child had been born in California, child had remained in
California for two days after birth, and parties had signed adoption agreement in
California); Shields, 375 S.W.3d at 742 (considering fact that child had lived in
Arkansas for first three years of life).
(. . . continued)
District for over two-and-a-half months. Moreover, the trial court in this case
relied on a number of connections between the child and the District beyond the
mere fact that the child had been born here. Finally, we note that this court has
expressly rejected the reasoning of In re Adoption of C.L.W. See In re B.B.R., 566
A.2d at 1039-40 n.23.
11
Second, Ms. Khawam argues that mere birth in a jurisdiction and ties
between a parent and the jurisdiction do not suffice to establish a “significant
connection” to the jurisdiction. Assuming without deciding that Ms. Khawam is
correct, the trial court relied upon several other circumstances in finding that the
child in this case had a “significant connection” to the District.
Third, Ms. Khawam points to various circumstances that she contends
diminish the significance of the child’s connections to the District, including that
the child had travelled out of the District for a significant portion of the time that
the child resided in the District, and that the family had voluntarily relocated to
Virginia months before Mr. Wolfe filed the custody petition. Mr. Wolfe disputed
Ms. Khawam’s calculations about the number of days the child spent outside of the
District and testified at trial that the relocation to Virginia was only temporary.
The trial court did not resolve these disputes, but even accepting Ms. Khawam’s
version of events we see no basis for disturbing the trial court’s determination that,
all things considered, the child had a “significant connection” to the District.
12
B.
Ms. Khawam also challenges the trial court’s ruling that substantial evidence
concerning the child’s care, protection, training, and personal relationships was
available in the District. We uphold the trial court’s ruling.
In finding that “substantial evidence” was available in the District, the trial
court relied on the following: the child had been born in the District; the child had
received medical treatment in the District; the child resided in the District for the
first two-and-a-half months of his life; Mr. Wolfe continued to reside in the
District; several of Mr. Wolfe’s family members resided in the Washington D.C.
metropolitan area; and the child had received pediatric care in nearby McLean,
Virginia. In our view, this case is comparable to Tirado and In re B.B.R., in which
this court concluded that “substantial evidence” was available in the jurisdiction at
issue. See Tirado, 945 A.2d at 1210 (“substantial evidence” available in District,
where father lived in District, child was baptized in District, child was cared for by
father during day in District, extended family lived in District, and mother had
brought suit for child support in District); In re B.B.R., 566 A.2d at 1038 & n.19
(“substantial evidence” available in California, where child was born in California,
child spent first two days of life in California, parties signed adoption agreement
13
concerning child in California, and child’s biological mother lived in California
and was “most appropriate source of information about the future care, protection,
training and future relationships the child would experience were he to be returned
to her”).
We are not convinced by Ms. Khawam’s objections to the trial court’s
ruling. First, Ms. Khawam contends that the trial court erred by considering
evidence that was physically located in Virginia rather than in the District. The
provision at issue, however, states that substantial evidence must be “available in
the District[,]” not that it must be physically present in the District. D. C. Code
§ 16-4602.01 (a)(2)(B). Neither party cites, and we have not located, a case
addressing whether evidence must be physically present in the jurisdiction to be
considered “available” for purposes of the UCCJEA. As a matter of both statutory
context and ordinary language, though, it seems reasonable to consider evidence
available in the District, even if it is not physically located in the District, as long
as the evidence is geographically proximate and could readily be obtained for use
in court proceedings here. Cf. Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)
(“the plain meaning of the term ‘available’ is ‘capable of use for the
accomplishment of a purpose,’ ‘immediately utilizable,’ and ‘accessible’”)
(quoting Webster’s Third New International Dictionary 150 (1986)); Super. Ct.
14
Civ. R. 45 (b)(2) (2013) (permitting service of subpoenas outside of District,
within twenty-five mile radius); Super. Ct. Dom. Rel. R. 45 (b)(2) (2013) (same).
We thus uphold the trial court’s decision in this case to consider evidence that was
nearby and readily accessible, even if that evidence was not within the
geographical boundaries of the District.4
Second, Ms. Khawam contends that the trial court should have disregarded
Mr. Wolfe’s decision to move back into the District before filing the custody
petition, because Mr. Wolfe should not be permitted to manufacture jurisdiction
under the DC UCCJEA. The trial court made no finding of improper “forum
shopping,” however, and at least in the absence of such a finding we see no error in
the trial court’s consideration of Mr. Wolfe’s status as a resident of the District.
Third, Ms. Khawam argues that no witness from the District other than Mr.
Wolfe actually testified at the custody hearing about the child’s care, protection,
4
The DC UCCJEA provides procedures by which courts in this jurisdiction
may be able to obtain access to evidence located in other jurisdictions. D.C. Code
§ 16-4601.10, -.11 (2012 Repl.). In light of these procedures, evidence could
arguably be viewed as “available in the District” even if the evidence was
physically located in a far-off jurisdiction. Although we need not resolve the issue,
we are skeptical that the DC UCCJEA could reasonably be read so expansively. In
this case, the evidence is both quite proximate and readily available through the
direct subpoena power of the Superior Court without need to resort to the special
procedures available under the DC UCCJEA.
15
training, and personal relationships. The trial court was required to rule in advance
of the custody hearing, however, about what evidence was available. This court
must decide whether that preliminary ruling was correct, not whether substantial
evidence was actually introduced at the subsequent custody hearing. As we have
explained, “[i]t is important that a reviewing court evaluate the trial court’s
decision from its perspective when it had to rule and not indulge in review by
hindsight.” Johnson v. United States, 960 A.2d 281, 295 (D.C. 2008) (quoting Old
Chief v. United States, 519 U.S. 172, 182 n.6 (1997)) (brackets in Johnson). For
the reasons we have explained, the trial court did not err in finding that substantial
evidence concerning the child’s care, protection, training, and personal
relationships was available in the District.
III.
Ms. Khawam raises several challenges to the trial court’s rulings in
connection with Ms. Khawam’s allegation that Mr. Wolfe had committed acts of
domestic violence. Specifically, Ms. Khawam argues that Judge Saddler unfairly
prevented Ms. Khawam from presenting evidence on that issue, that Judge Kravitz
erroneously deferred to Judge Saddler’s determination of that issue and
demonstrated judicial bias, and that Judge Kravitz made several clearly erroneous
16
factual findings in concluding that Ms. Khawam had failed to demonstrate that Mr.
Wolfe had committed acts of domestic violence. We affirm.
A.
After conducting a lengthy evidentiary hearing, Judge Saddler ruled that the
District had jurisdiction over the custody matter and that the District was not an
inconvenient forum. During that hearing, Ms. Khawam introduced evidence that
Mr. Wolfe had engaged in acts of domestic violence. Mr. Wolfe denied having
engaged in such acts and introduced other evidence in support of that denial. In
concluding that the District was not an inconvenient forum, Judge Saddler
discussed and ultimately discredited Ms. Khawam’s allegations of domestic
violence.
On appeal, Ms. Khawam contends that Judge Saddler denied her a fair
opportunity to prove her claims of domestic violence, by substantially restricting
Ms. Khawam’s ability to introduce evidence on the issue and then resolving the
issue on an incomplete record. We find no error. It is true, as Ms. Khawam
emphasizes, that at various points during the hearing Judge Saddler excluded
evidence about domestic violence. We do not agree with Ms. Khawam, however,
17
that Judge Saddler either flatly prohibited introduction of evidence of domestic
violence or otherwise acted unfairly.
At several points during the hearing, Judge Saddler indicated her intent to
bifurcate the hearing, first focusing on jurisdiction -- as to which Judge Saddler
concluded that evidence of domestic violence was not relevant -- and then turning
to the question whether the District was a convenient forum -- as to which Judge
Saddler concluded that evidence of domestic violence would be relevant. See, e.g.,
12/08/09 Tr. 48-55, 89, 126; 12/09/09 Tr. 102, 125. Ms. Khawam does not
challenge on appeal either the decision to bifurcate the hearing or the conclusion
that evidence of domestic violence is not relevant to the issue of UCCJEA
jurisdiction.5
Some of the other rulings cited by Ms. Khawam appear to be either (a)
reiterations of the prior ruling that evidence of domestic violence was irrelevant to
the question of jurisdiction or (b) rulings as to the admissibility of particular items
5
Despite the discussion of bifurcation, the hearing was not in fact clearly
separated into two separate parts, one devoted to jurisdiction and one devoted to
whether the District was an inconvenient forum. It does not appear, however, that
Ms. Khawam ever specifically objected on the ground that Judge Saddler was
closing the hearing without affording Ms. Khawam the promised opportunity to
introduce evidence of domestic violence.
18
of evidence of domestic violence, rather than a general ruling that evidence of
domestic violence should be entirely excluded as irrelevant, even on the issue of
whether the District was a convenient forum. See, e.g., 1/27/10 Tr. 4; 1/27/10
Supp. Tr. 2-3; 2/23/10 Tr. 95, 120. Other than suggesting -- inaccurately -- that the
trial court erroneously concluded that all of her evidence of domestic violence was
irrelevant, Ms. Khawam does not specifically challenge on appeal the correctness
of any of Judge Saddler’s rulings as to the admissibility of particular items of
evidence of domestic violence.
Finally, as already noted, it is undisputed that Judge Saddler admitted
evidence of domestic violence at various points during the hearing. On this record,
we conclude that Ms. Khawam has not established that Judge Saddler flatly
precluded evidence of domestic violence or otherwise acted unfairly in her
handling of such evidence during the hearing.6
6
In passing, Ms. Khawam asserts that Judge Saddler imposed “unbalanced”
and “arbitrary” time limits on Ms. Khawam during the hearing. This passing
reference is not adequate to present an issue for our decision. See, e.g., Bardoff v.
United States, 628 A.2d 86, 90 n.8 (D.C. 1993) (treating claim as abandoned,
where appellant mentioned claim but did not provide supporting argument). In any
event, Judge Saddler’s management of the lengthy hearing was in our view entirely
reasonable.
19
In sum, we find no error in Judge Saddler’s finding that Ms. Khawam had
not shown that Mr. Wolfe had committed acts of domestic violence. We therefore
affirm Judge Saddler’s conclusion that the District would not be an inconvenient
forum.7
B.
Ms. Khawam also contends that Judge Kravitz erred in his handling of the
issue of domestic violence in connection with the custody and visitation
determinations. We conclude to the contrary.
In arguing that she should be granted custody of the child, Ms. Khawam
contended that Mr. Wolfe had threatened and physically abused both her and the
child. See D.C. Code § 16-914 (a)(3)(F) (2012 Repl.) (trial court determining
custody issue shall consider, among other things, “evidence of an intrafamily
7
Judge Saddler ruled in the alternative that, even if there had been a
showing of domestic violence, the Superior Court could adequately protect Ms.
Khawam and the child from any harm. Ms. Khawam does not challenge that
ruling, which provides ample support for Judge Saddler’s decision not to dismiss
the custody proceeding on the ground that the District was an inconvenient forum.
See D.C. Code § 16-4602.07 (b)(1) (2012 Repl.) (in determining whether District
is inconvenient forum, court shall consider, among other things, whether domestic
violence has occurred and is likely to continue, and which jurisdiction could best
protect parties and child).
20
offense” as defined in D.C. Code § 16-1001 (8) (2012 Repl.), which includes
threats and assault against spouse or biological child). After conducting a lengthy
evidentiary hearing, Judge Kravitz concluded that Ms. Khawam’s allegations of
domestic violence were “false.” In support of that conclusion, Judge Kravitz relied
upon seven considerations: (1) “Ms. Khawam made no contemporaneous or even
near-contemporaneous reports of any of Mr. Wolfe’s alleged criminal acts”; (2)
Ms. Khawam’s allegations expanded over time and were “so numerous, so
extraordinary, and . . . so distorted that they defy any common sense view of
reality”; (3) no physical, scientific, or documentary evidence supported Ms.
Khawam’s allegations; (4) only one witness testified before Judge Kravitz to
having seen Mr. Wolfe assault Ms. Khawam, and Judge Kravitz did not credit the
testimony of that witness, Ms. Khawam’s twin sister, whom Judge Kravitz found
to be “patently biased and unbelievable”; (5) Ms. Khawam’s claim that Mr. Wolfe
had forced her to engage in non-consensual sexual relations was undermined by
“romantic and sexually suggestive emails Ms. Khawam sent to Mr. Wolfe shortly
after the incident”; (6) “every judicial officer who has presided over an adversarial
proceeding at which Ms. Khawam’s allegations of domestic violence have been
addressed has found the evidence supporting the allegations deficient”; and (7)
“Ms. Khawam’s allegations of child abuse by Mr. Wolfe have been found similarly
wanting by every child welfare agency that has investigated them.”
21
Ms. Khawam challenges Judge Kravitz’s ruling on three grounds. First, Ms.
Khawam contends that Judge Kravitz erred by deferring to Judge Saddler’s
procedurally flawed finding that Ms. Khawam had failed to prove domestic
violence. As we have already explained, we are not persuaded by Ms. Khawam’s
challenges to the fairness of Judge Saddler’s initial ruling. In any event, although
Judge Kravitz did at one point rely on Judge Saddler’s initial ruling in making the
final custody and visitation ruling, Judge Kravitz also made clear that he was
independently rejecting Ms. Khawam’s claims of domestic violence.
Second, Ms. Khawam contends that Judge Kravitz showed judicial bias, by
among other things prejudging the issue of domestic violence before hearing
evidence on the issue. We see no basis for this contention. For example, it was
entirely reasonable for Judge Kravitz, when considering requests for interim relief,
to give weight to Judge Saddler’s prior ruling on the issue of domestic violence.
More generally, “judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Accord, e.g., In re McMillan, 940 A.2d 1027, 1039 (D.C. 2008). The rulings
identified by Ms. Khawam do not raise even a remote concern about judicial bias.
22
Third, Ms. Khawam contends that Judge Kravitz’s ruling rests on three
clearly erroneous factual conclusions. Specifically, Ms. Khawam argues that (a)
she did make contemporaneous reports of abuse, (b) no judicial officer ever
actually made a finding about domestic violence based on a full evidentiary record,
and (c) there was no evidence that any child-welfare agency ever investigated the
allegations of child abuse and found the evidence lacking. We see no clear error.
Ms. Khawam cites various pieces of evidence in support of her claim that
she made contemporaneous reports of domestic violence. Judge Kravitz, however,
acted within his broad authority in finding this evidence either incredible or
insufficient. See generally, e.g., In re Thompson, 419 A.2d 993, 995-96 (D.C.
1980) (noting trial judge’s discretion to discredit testimony). When the record is
considered as a whole, Judge Kravitz permissibly found that Ms. Khawam did not
demonstrate that she had made contemporaneous reports of Mr. Wolfe’s alleged
criminal acts of domestic violence. Cf. generally Jordan v. Jordan, 14 A.3d 1136,
1150-51 (D.C. 2011) (finding no clear error in trial court’s determination that
father had not committed certain acts of domestic violence).
Ms. Khawam next objects to Judge Kravitz’s finding that “every judicial
officer” who had addressed her domestic-violence allegations found the evidence
23
supporting the allegations deficient. Specifically, Ms. Khawam argues that none of
the judicial officers mentioned by Judge Kravitz actually resolved the allegations
of domestic violence on a full evidentiary record. We find no error. In his order,
Judge Kravitz very carefully and accurately described the prior rulings on the issue
of domestic violence: Judge Saddler held an evidentiary hearing on the issue;
Judge Bayly adopted Judge Saddler’s findings; and the court in Florida did not
hold an evidentiary hearing but recognized, in Judge Kravitz’s words, that Ms.
Khawam’s “allegations were infused with a strong motive to fabricate . . . .”
Finally, Ms. Khawam alleges clear error in Judge Kravitz’s reference to the
dismissal of the allegations of child abuse. Specifically, Ms. Khawam claims that
“no evidence was introduced showing that any child welfare agency had conducted
an evidentiary investigation of the domestic violence allegations and found the
evidence wanting.” Judge Kravitz’s order, however, did not state that the agencies
at issue had conducted an “evidentiary investigation,” and it is not clear precisely
what Ms. Khawam means by the term “evidentiary.” Nor is it clear whether Ms.
Khawam contests the accuracy of Judge Kravitz’s conclusions that the allegations
of child abuse were closed as “unfounded” in the District or “without any finding
of abuse” in Florida. Even assuming that Judge Kravitz’s order ran beyond the
record on this point, that would not warrant reversal. In finding that Ms. Khawam
24
had not proven her allegations of domestic violence, Judge Kravitz relied on seven
separate considerations. We are confident that Judge Kravitz’s ultimate ruling
would not be affected by any error with respect to the precise bases upon which the
allegations of child abuse were resolved. See, e.g., Prost v. Greene, 652 A.2d 621,
629-30 (D.C. 1995) (affirming trial court’s ultimate finding on each parent’s ability
to care for children despite several factual errors in court’s analysis, because other
evidence, unchallenged on appeal, provided “firm foundation . . . for the judge’s
ultimate determination”).
In sum, we uphold the trial court’s determinations that Ms. Khawam failed
to demonstrate that Mr. Wolfe had committed acts of domestic violence.
IV.
Ms. Khawam argues that the custody order should be reversed because the
trial court erroneously credited the testimony of Dr. Berman, the court-appointed
custody evaluator, who testified that Ms. Khawam exhibited “poor logical
thinking” and “a profoundly distorted view of Mr. Wolfe and of much of the world
around her.” Ms. Khawam contends that her expert, Dr. Prange, gave unrebutted
testimony that Dr. Berman’s psychological testing of Ms. Khawam was not
25
consistent with standard scientific protocols and that Dr. Berman’s methods for
conducting the custody evaluation fell short of professional standards. We find no
grounds for reversal.
“[W]e will only reverse a trial court’s order regarding child custody upon a
finding of manifest abuse of discretion.” Hutchins v. Compton, 917 A.2d 680, 683
(D.C. 2007) (internal quotation marks omitted). Our review of a trial court’s
consideration of expert testimony is similarly deferential. See, e.g., Varner v.
District of Columbia, 891 A.2d 260, 266 (D.C. 2006). The trial court in this case
explained that its conclusions about Ms. Khawam’s mental health were “without
regard to” and “wholly independent of” the disputed testing results. Although Ms.
Khawam argues that it is impossible to separate the trial court’s conclusions
regarding Ms. Khawam’s mental health from Dr. Berman’s testimony, the trial
court based its conclusions about Ms. Khawam’s mental health on substantial
additional information, including Ms. Khawam’s actions in keeping the child away
from Mr. Wolfe in defiance of court orders, her fabrication of false allegations of
domestic violence, her troubled personal life before her involvement with Mr.
Wolfe, her difficulty in keeping steady employment, and the trial court’s own
observations of and interactions with Ms. Khawam. We see no reason to doubt the
trial court’s explicit disavowal of reliance upon Dr. Berman’s disputed testing
26
results. Cf., e.g., O’Boskey v. First Fed. Sav. & Loan Ass’n of Boise, 739 P.2d 301,
307 (Idaho 1987) (rejecting argument that trial court “based its decision on
grounds it said it did not consider”).
V.
Ms. Khawam contends that the custody order should be reversed because the
trial court’s visitation order was “harsh” and afforded Ms. Khawam “extremely
limited” visitation. More specifically, Ms. Khawam objects to the following
restrictions: (1) visitation is limited to thirteen hours per week; (2) visitation must
be supervised; (3) visitation must occur on Monday afternoon, Friday afternoon,
and Saturday during the day; and (4) Ms. Khawam cannot take the child more than
ten miles outside the District.
In determining parental visitation rights, the trial court must “foster and
safeguard [the] child’s best interests.” Hamel v. Hamel, 489 A.2d 471, 475 (D.C.
1985) (internal quotation marks omitted; brackets in Hamel). Under D.C. Code
§ 16-914 (a)(3), the trial court must consider seventeen factors in determining the
best interest of the child, including the interaction of the child with each parent, the
mental health of the parents, the capacity of the parents to communicate, and the
27
parents’ willingness to share custody. This court will reverse a trial court’s ruling
on the subject of visitation “only for a clear abuse of discretion.” Maybin v.
Stewart, 885 A.2d 284, 287 (D.C. 2005). We find no clear abuse of discretion in
the original visitation ruling.
In this case, after thoroughly considering each of the statutory factors and
several additional factors (including Ms. Khawam’s lack of honesty and integrity
and her failure to obey court orders), the trial court concluded that it was in the
child’s best interest for Mr. Wolfe to be the child’s sole legal and primary physical
custodian. The trial court also carefully explained its reasons for determining that,
at least initially, Ms. Khawam should be permitted limited visitation under careful
supervision. Specifically, the trial court expressed concern that Ms. Khawam
might “attempt to remove the child once again, escalate her negative comments
about Mr. Wolfe, or act in ways otherwise detrimental to the child’s best interest.”
We are satisfied that the trial court did not abuse its discretion by initially limiting
Ms. Khawam’s visitation to thirteen hours per week and requiring that visitation be
supervised. Cf., e.g., Maybin, 885 A.2d at 287-88 (concluding that trial court did
not abuse its discretion by requiring father to attend counseling with child as
condition of resuming visitation, because trial court, after hearing evidence from
all parties, was “merely considering [child’s] best interests, as it was obliged to
28
do”); Galbis v. Nadal, 626 A.2d 26, 28-29 (D.C. 1993) (affirming trial court’s
requirement that child’s overnight stays with father be supervised by particular
caretaker, where trial court “provided a rational basis” for requirement); Hamel,
489 A.2d at 475 (affirming trial court’s suspension of mother’s visitation until
mother met with psychiatrist and psychiatrist proposed visitation schedule, noting
that when “a parent’s mental condition is properly at issue in determining visitation
rights, it is entirely appropriate for the trial court to solicit professional opinion”).
Ms. Khawam argues, however, that the initial visitation order made it
impossible for her to work and placed an enormous financial burden on her to
travel from Tampa, where she currently lives, to the District. As the trial court
noted in the custody order, however, Ms. Khawam’s counsel had indicated to the
trial court that Ms. Khawam would move to the District if the trial court awarded
primary physical custody to Mr. Wolfe. The trial court properly relied upon
counsel’s statement in crafting the original visitation order. Cf., e.g., Flax v.
Schertler, 935 A.2d 1091, 1103 (D.C. 2007) (“it is necessary for the orderly
conduct of litigation that the trial court be able to rely on counsel’s representations
at important junctures of litigation”) (internal quotation marks omitted). As to the
specific dates and times of visitation, the trial court explained in the initial custody
order that the schedule was a temporary arrangement to accommodate the
29
possibility that Ms. Khawam would not be able to move from Tampa to the District
immediately. We do not find the specific visitation schedule in the initial custody
order, intended to be temporary, to be a clear abuse of discretion.
VI.
Ms. Khawam also appeals from the trial court’s order denying her motion to
modify the custody order. Ms. Khawam argues that the trial court erred by
denying her motion “summarily” and without any opportunity for an evidentiary
hearing. We agree with Ms. Khawam on this point.
In its initial custody order, the trial court stated that Ms. Khawam could file
a motion asking the court to vacate the requirement that her visits with the child be
supervised. The trial court required that any such motion be supported by a written
report of a licensed psychologist who had conducted a full psychological
evaluation of Ms. Khawam. The trial court further noted that if it granted such a
motion, it would also enter a new visitation schedule in the child’s best interest
based on “the circumstances presented at the time.”
30
Ms. Khawam accordingly filed a motion to modify the custody order,
attaching the required psychologist’s report; the detailed notes of the
court-assigned visitation supervisor; a letter from a psychiatrist who had examined
Ms. Khawam; an affidavit from a physician who had treated an injury sustained by
the child that the child allegedly stated had been caused by Mr. Wolfe; and other
medical records concerning the child’s health. Based on these attachments, Ms.
Khawam asked the trial court to remove the supervision restrictions; to grant Ms.
Khawam more extensive visitation; to order a professional evaluation to determine
the child’s medical and psychological needs; to forbid Mr. Wolfe from engaging in
any corporal punishment of the child; and to forbid Mr. Wolfe and his family from
making any derogatory remarks about Ms. Khawam in the child’s presence. The
trial court denied Ms. Khawam’s request in a summary order, explaining its
determination as follows:
Nothing in Ms. Khawam’s motion or its attachments has
allayed the concerns that led the court to impose the
supervision requirement as part of the [initial custody
order], and the court does not believe that increasing the
length or frequency of Ms. Khawam’s visits with the
child would be in the child’s best interest at this time.
This three-year-old boy has experienced extraordinary
upheaval in his brief life, and he needs a chance to settle
in to his new surroundings and routine with Mr. Wolfe
here in the District of Columbia. It is not surprising,
given all that has transpired, that the child might act up
during transitions or visits with his mother.
31
We conclude that the trial court abused its discretion by summarily denying
Ms. Khawam’s motion to modify. The trial court restricted Ms. Khawam’s
visitation rights in part based upon concerns about Ms. Khawam’s mental health.
In connection with her motion to modify the custody order, Ms. Khawam
submitted a favorable psychologist’s report. Although the trial court was not
compelled to accept the psychologist’s conclusions, the trial court did not
specifically address the psychologist’s report. Moreover, Ms. Khawam raised
many serious allegations in her motion to modify, including that the child was
afraid of Mr. Wolfe; that Mr. Wolfe had struck the child in the face, causing injury
requiring medical treatment; that the child was acting out to an extreme degree (for
example, by striking his mother in the face and using profanity); and that the
child’s physical health was deteriorating. These allegations were all based on
interactions with the child after the initial custody order, and they were supported
by medical records, a treating physician’s affidavit, and the detailed notes of the
court-appointed visitation supervisor. The trial court’s order makes no mention of
these serious allegations.
Under the circumstances, we conclude that the trial court was required either
to conduct an evidentiary hearing or to explain with specificity why such a hearing
was not required, despite the serious allegations raised by Ms. Khawam’s motion
32
to modify. See Super. Ct. Dom. Rel. R. 52 (a) (2013) (trial court shall set forth
findings of fact and conclusion of law when ruling on motion to modify prior
order); Sampson v. Johnson, 846 A.2d 278, 284 (D.C. 2004) (vacating order
denying motion to modify custody and visitation, because trial court “did not
reveal [its] reasoning with respect to the thorny visitation issue”); López v. Ysla,
733 A.2d 330, 334 (D.C. 1999) (trial court abused discretion by denying motion to
reconsider child support without addressing alleged proof presented by movant);
cf. generally Griese v. Kamp, 666 N.W.2d 404, 408-09 (Minn. Ct. App. 2003)
(reversing trial court’s denial without hearing of motion to modify custody;
“evidentiary hearings are strongly encouraged where allegations are made of
present endangerment to a child’s health or emotional well being”) (internal
quotation marks omitted).8
VII.
In the divorce judgment, Judge Kravitz required Ms. Khawam to report
changes of employment status to Mr. Wolfe, but did not impose a reciprocal
requirement on Mr. Wolfe. Ms. Khawam subsequently moved to amend that
8
Since the trial court denied Ms. Khawam’s initial motion to modify, Ms.
Khawam has filed two additional motions to modify. The first motion was
withdrawn, but the second is currently pending.
33
aspect of the judgment, arguing that Mr. Wolfe should be subject to a reciprocal
reporting requirement. Judge Kravitz denied the motion, explaining that he had
imposed a reporting requirement on Ms. Khawam in light of Ms. Khawam’s
unstable employment situation, because changes in Ms. Khawam’s employment
could abruptly and significantly alter her child-support obligations. In contrast,
Judge Kravitz further explained, Mr. Wolfe had a steady source of income.
Child-support orders are subject to reversal only for clear abuse of discretion.
Wilson v. Craig, 987 A.2d 1160, 1164 (D.C. 2010). We are satisfied by Judge
Kravitz’s explanation for the decision to impose the reporting requirement on Ms.
Khawam but not Mr. Wolfe, and we therefore find no abuse of discretion.
VIII.
Finally, Ms. Khawam seeks reversal of the trial court’s order awarding
attorney’s fees to Mr. Wolfe. We dismiss Ms. Khawam’s appeal from this order
for lack of a final order, and we therefore do not address the merits of the trial
court’s fee award.
Mr. Wolfe sought an award of over $700,000 in attorney’s fees and costs
incurred during the custody and divorce litigation. Mr. Wolfe relied on three
34
separate legal theories: the common law “necessaries” doctrine, which permits an
award of attorney’s fees in a child-custody case if the court finds that “counsel was
necessary to protect the interests of the [child],” Kenda v. Pleskovic, 39 A.3d 1249,
1257 (D.C. 2012) (internal quotation marks omitted); the “bad faith” exception,
which permits a fee award “against a party who has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons connected to the litigation,” Cave v. Scheulov,
64 A.3d 190, 193 n.9 (D.C. 2013) (internal quotation marks omitted); and a
provision authorizing payment of “suit money,” including attorney’s fees, in
divorce proceedings, D.C. Code § 16-911 (a)(1) (2012 Repl.). The trial court
awarded Mr. Wolfe $350,000 under the necessaries doctrine, but expressly
declined to decide whether Mr. Wolfe was entitled to an award under the
remaining two theories. The trial court instead provided that “Mr. Wolfe may
renew his request for fees and costs under the bad faith exception and the suit
money provision . . . in the event the award entered in this order has been disturbed
on appeal or Mr. Wolfe wishes to argue that an award under either or both of the
alternative grounds should be larger than the award entered herein.”9
9
The trial court’s decision to award fees only under the necessaries doctrine
may have been influenced by complications that arose after Ms. Khawam filed for
bankruptcy. The parties disagreed as to whether the bankruptcy proceedings
foreclosed a fee award under the bad-faith exception, but agreed that the
bankruptcy proceedings did not foreclose a fee award under the other two theories.
We note that the bankruptcy proceedings have apparently now been completed and
(continued . . .)
35
On appeal, Ms. Khawam challenges the fee award on the merits, but also
argues that the trial court acted impermissibly by ruling as to only one of the
theories upon which Mr. Wolfe sought a fee award. Although Ms. Khawam does
not frame the latter argument in jurisdictional terms, an issue of finality is raised by
the trial court’s decision to address only one of the three grounds upon which Mr.
Wolfe sought attorney’s fees. We must address that jurisdictional issue even
though the parties did not squarely raise the issue. See, e.g., United States v.
Stephenson, 891 A.2d 1076, 1078 (D.C. 2006) (sua sponte considering whether
order was final and appealable).
This court’s jurisdiction is generally limited to appeals from final orders and
judgments of the trial court. D.C. Code § 11-721 (a)(1) (2012 Repl.); see also
McDiarmid v. McDiarmid, 594 A.2d 79, 81-82 (D.C. 1991). “The requirement of
finality serves the important policy goals of preventing the unnecessary delays
resultant from piecemeal appeals and refraining from deciding issues which may
(. . . continued)
thus should not pose any obstacle to a final determination on remand of Mr.
Wolfe’s fee request. We further note that Mr. Wolfe has not yet sought an
increased fee award under the theories that the trial court did not resolve. At oral
argument, counsel for Mr. Wolfe left open the possibility that Mr. Wolfe might in
the future seek an increased fee award under those theories. We express no
opinion on the implications, if any, of Mr. Wolfe’s failure to seek an increased fee
award more expeditiously.
36
eventually be mooted by the final judgment.” Rolinski v. Lewis, 828 A.2d 739, 745
(D.C. 2003) (internal quotation marks and alterations omitted).
For an order to be final, “it must dispose of the whole case on its merits so
that the court has nothing remaining to do but to execute the judgment or decree
already rendered.” McDiarmid, 594 A.2d at 81 (internal quotation marks and
brackets omitted). The order “must not only be final but also complete, that is,
final not only as to all parties, but as to the whole subject matter and all the causes
of action involved.” Id. (internal quotation marks omitted). An order awarding
attorney’s fees but not determining the amount of the fees is not final. Linen v.
Lanford, 945 A.2d 1173, 1182 (D.C. 2008).
The order awarding attorney’s fees in this case does not have the typical
attributes of a final order. First, the order did not definitively determine the
amount of fees to which Mr. Wolfe is entitled. Mr. Wolfe sought fees under three
potentially overlapping but distinct theories. A fee award for “suit money” would
focus on Mr. Wolfe’s need for representation in the divorce proceedings, D.C.
Code § 16-911 (a)(1); a fee award under the necessaries doctrine would focus on
the need for representation in the custody proceedings to protect the best interest of
the child, Kenda, 39 A.3d at 1257; and a fee award under the bad-faith exception
37
would focus on those legal expenses arising from any bad-faith litigation engaged
in by Ms. Khawam, Breezevale Ltd. v. Dickinson, 879 A.2d 957, 968-69 (D.C.
2005). Thus, as the trial court explicitly acknowledged, the award under the
necessaries doctrine left open the possibility that Mr. Wolfe might recover an
additional award under the theories that the trial court declined to resolve. Second,
for this court to review the current fee award would run afoul of both policies
underlying the finality rule. There would be a very real risk of piecemeal review,
because any ruling on the merits of the fee award in this appeal would leave open
the possibility of further litigation concerning the unresolved alternative theories.
Cf. In re Orshansky, 952 A.2d 199, 207-09 (D.C. 2008) (addressing finality of
interim compensation orders in probate proceedings; “Orders granting attorney’s
fees are interlocutory until both the underlying action and the adjudication of fees
are complete (except for the possibility of fees generated by the act of appealing
that final order); otherwise this court would have to review fee awards that are still
subject to change.”). Moreover, the trial court’s decision to address only the
“necessaries” doctrine would require this court to address the difficult issues raised
by the application of that doctrine in this appeal, even though it is possible that
those issues would not have required resolution if, for example, the trial court had
determined that Mr. Wolfe was entitled to an award of the same fees under the
bad-faith exception.
38
We have found no case in this or any other court treating a comparable order
as final and appealable. To the contrary, a number of courts have dismissed
appeals for lack of finality in comparable circumstances. See, e.g., Austin v.
Austin, 102 So. 3d 403, 404-08 (Ala. Civ. App. 2012) (dismissing appeal for lack
of finality, where court granted fee award as to work done with respect to
consolidated actions, but retained jurisdiction over one of actions and reserved
right to award additional fees with respect to that action; “In entering the judgment
awarding attorney’s fees, the trial court clearly contemplated awarding additional
attorney’s fees in this action. The propriety of those awards, or the lack thereof, is
likely to be the subject of an additional appeal.”); Ramco Indus. v. C & E Corp.,
773 N.E.2d 284, 287-89 (Ind. Ct. App. 2002) (dismissing as non-final interim
order granting attorney’s fees as to one count but leaving open future fee award as
to other count); In re Carey, 500 F. App’x. 595, 596-97 (9th Cir. 2012)
(unpublished) (dismissing appeal for lack of finality, where bankruptcy appellate
panel had remanded case to bankruptcy court for determination of an appropriate
amount of attorney’s fees; “Calculating attorneys’ fees will require the bankruptcy
court to consider numerous legal issues, many of which [appellant] has already
raised on remand. As a consequence, we may also need to review the same issue
in this same case a second time. . . . [T]he most efficient course of conduct would
be to consider whether all the fees were pled properly in a single decision.”)
39
(internal quotation marks and brackets omitted); cf. Pigford v. Venemen, 361 U.S.
App. D.C. 345, 347, 369 F.3d 545, 547 (2004) (post-judgment interim fee award
was non-final and non-appealable, because award did not “dispositively determine
fees due” and district court “clearly contemplates revising the fee award at a later
time”) (internal quotation marks and brackets omitted); Rum Creek Coal Sales v.
Caperton, 971 F.2d 1148, 1155 (4th Cir. 1992) (order denying attorney’s-fee
request was non-final, where trial court denied request “at this time” pending
further information from parties and resolution of several issues on appeal); Baskin
v. Hawley, 810 F.2d 370, 371-72 (2d Cir. 1987) (per curiam) (where underlying
order on merits had been vacated on appeal and remanded for further proceedings,
court dismissed appeal challenging fee award; “There is a strong federal policy
against the taking of piecemeal appeals. This policy is reflected, for example, in
the rule that an interim award of attorney’s fees to a plaintiff as a prevailing party
on some claims, where other claims remain pending, is not immediately
appealable.”).
It is essential to our ruling that the alternative theories left unresolved by the
trial court might entitle Mr. Wolfe to recover fees in addition to the fees awarded
by the trial court under the necessaries doctrine. When a litigant seeks precisely
the same relief on several alternative grounds, the trial court may appropriately
40
grant that relief on only one of those grounds, without resolving the validity of the
others, and such an order would not lack finality. See, e.g., City of Riverside v.
State, 944 N.E.2d 281, 288-89 (Ohio Ct. App. 2010) (grant of “complete” relief on
theory “rendered moot” other theories requesting same relief). But where the trial
court resolves only one claimed basis for relief, and leaves open other claims for
additional relief, the trial court’s order will generally lack finality. See, e.g.,
Merrell Dow Pharm. v. Oxendine, 593 A.2d 1023, 1026 (D.C. 1991) (“because the
judgment leaves plaintiff th[e] option of seeking additional damages, it cannot be
viewed as final”) (internal quotation marks and brackets omitted); Jones v. Jones,
869 So. 2d 1120, 1123 (Ala. 2003) (“An order is not final if it permits a party to
return to court and prove more damages or if it leaves open the question of
additional recovery.”).10
IX.
In sum, we affirm the custody order, the initial visitation order, and the
judgment of divorce; we vacate and remand the trial court’s order denying Ms.
10
This case does not involve, and we therefore do not address, the finality
of fee awards that determine the amount of fees to be awarded for a discrete
portion of the proceedings. Cf. In re Orshansky, 952 A.2d at 207-09 (addressing
finality of orders granting interim compensation in probate proceedings).
41
Khawam’s motion to modify the custody order; and we dismiss the appeal from the
award of attorney’s fees for lack of a final order. 11
So ordered.
11
The lack of finality in the order awarding attorney’s fees does not
undermine the finality of the custody order and the divorce decree. See, e.g., Dyer
v. William S. Bergman & Assocs., Inc., 635 A.2d 1285, 1288 & n.6 (D.C. 1993)
(“As a general matter . . . a claim for attorney’s fees is not part of the merits of the
action to which the fees pertain . . . so that an unresolved issue of attorney’s fees
for the litigation in question does not prevent judgment on the merits from being
final.”) (internal quotation marks omitted); accord Ray Haluch Gravel Co. v.
Central Pension Fund of Int’l Union of Operating Eng’rs & Participating Emp’rs,
No. 12-992, 2014 WL 127952, at *5-9 (U.S. Jan. 15, 2014).