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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-FM-92 9/15/16
MARTHA DUGUMA, APPELLANT,
V.
BALEHAGER AYALEW, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DRB-38-14)
(Hon. Judith A. Smith, Trial Judge)
(Argued May 17, 2016 Decided July 13, 2016*)
Lisa Freiman Fishberg for appellant.
Alan B. Soschin for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and REID, Senior
Judge.
PER CURIAM: This is Martha Duguma’s appeal from the trial court’s order
*
The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of appellee’s motion to publish.
2
awarding sole physical custody of her three minor children to their father,
Balehager Ayalew. Appellant raises three issues on appeal. First, she argues that
the trial court abused its discretion in refusing to grant her counsel’s request for a
continuance when she failed to appear on the day of the custody trial. Second,
appellant argues that the court erred in failing to interview the children or appoint a
guardian ad litem to determine the children’s wishes as to their custody. Third,
appellant argues that even aside from the absence of evidence as to the children’s
custodial preferences, there was insufficient evidence to grant custody to appellee.
For the reasons that follow, we hold that the trial court did not err in refusing
to continue the trial; that a remand is required for the court to hear from the parties’
children and consider their wishes respecting custody; and that the evidence was
not otherwise insufficient to support the court’s custody determination.
I.
Appellant and appellee were married in 1997 and have three children
together: D., born February 26, 2000; A., born March 14, 2005; and Z., born on
September 1, 2006. All three children are United States citizens, as are the parties.
3
In 2006, before Z. was born, appellant and the children moved back to her
native country of Ethiopia. Thereafter, appellee, who remained in the United
States to attend school and work, periodically visited them in Ethiopia for several
weeks or months at a time. In addition, each year until 2013, the children traveled
to the United States to stay with appellee at Christmas and over the summer.
The trial court credited appellee’s testimony that in April of 2013, the parties
agreed that the children should move to the United States to continue their
education and live with appellee in the District of Columbia. On June 24, 2013,
appellant brought the children here to stay with him. Appellant left the children
with appellee when she returned to Ethiopia after several weeks. At the end of the
summer, the children remained in the District and were enrolled in school here.
In the “Emergency Complaint for Child Custody Hearing” that appellant
filed on January 7, 2014, she alleged that appellee “without the consent or
agreement of [appellant] kidnapped and removed the minor children” from her
home in Ethiopia and that he “has refused to return them to said home since June,
23, 2013 [sic].” The trial court denied appellant’s request for emergency relief and
scheduled an initial hearing on March 13, 2014.
4
At appellant’s request (which was untimely), the court waived her presence
at this initial hearing. Thereafter, appellant did not appear at the uncontested
divorce trial and custody status hearing on April 28, 2014. Although she was in
the United States, she informed the court through counsel that she had fallen ill just
minutes before those proceedings were to commence. The court accepted this
explanation, but not without admonishing appellant’s attorney that her repeated
“fail[ure] to show up means she’s not participating and pursuing her case.”
Among other matters discussed during the custody status hearing, the court
inquired whether the parties wished to have a guardian ad litem appointed to
represent the children’s interests. Both parties declined to so request.1
The custody trial was set for August 11, 2014. On that date, appellant again
failed to appear. Her counsel had no explanation for her absence; he did not know
where she was or even whether she was in the country. He asked for a continuance
so that he could locate appellant and secure her presence for a later trial date. The
trial court denied the request, however, on the grounds that good cause had not
been shown and that a continuance would prejudice appellee because his
1
The court gave the parties two weeks to decide, thereby affording
appellant’s counsel the opportunity to consult with his client.
5
guardianship of the children was subject to a number of limitations while the action
remained pending.
The custody trial went forward. Appellee was the only witness. When the
trial concluded, the court issued a temporary order granting appellee sole physical
custody of the children with final decision-making authority. Several months later,
on December 22, 2014, the court issued a final order awarding appellee sole
physical custody and joint legal custody of the children with reasonable rights of
visitation for appellant. At no time in the intervening months between the
temporary and final orders did appellant seek to reopen the record in order to
testify or submit other additional evidence, nor did she provide an explanation for
her absence on the day of trial. Appellant did, however, note a timely appeal after
the final custody order was issued.
II.
Appellant first argues that the trial court erred in failing to grant her a
continuance when she did not appear on the day of trial. This failure, she argues,
led the court to conduct an “ex parte trial” and rely entirely upon appellee’s
evidence.
6
We hold that the trial court did not abuse its discretion in refusing to grant a
continuance.2 Under Rule G (b) of the Superior Court rules governing family
proceedings, an application for a continuance must be made in writing and set forth
good cause for granting a continuance.3 The application must identify at least one
date to which the parties agree the case may be continued, or else set forth the good
faith efforts made by the movant to secure the other party’s agreement and propose
three dates on which the proceeding might be rescheduled.4 Although the trial
court has discretion to grant a continuance not requested until the day of trial, this
court is “especially hesitant to overturn the denial” of such last-minute requests.5
Appellant complied with neither the letter nor the spirit of Rule G. She did
not apply for a continuance in writing, and her unexplained absence did not
2
See Hammond v. Weekes, 621 A.2d 838, 844 (D.C. 1993) (“Ordinarily, the
decision to grant or deny a continuance rests in the sound discretion of the trial
court and will not be reversed absent an abuse of that discretion.”) (quoting
Thompson v. Thompson, 559 A.2d 311, 313 (D.C. 1989)).
3
Super. Ct. Gen. Fam. R. G (b).
4
Id.
5
See Esteves v. Esteves, 680 A.2d 398, 405 (D.C. 1996) (quoting Taylor v.
Wash. Hosp. Ctr., 407 A.2d 585, 594 (D.C. 1979)).
7
establish good cause to grant her counsel’s oral request.6 She apparently made no
effort to obtain appellee’s consent, nor did she offer the court any dates on which
proceedings might recommence. Indeed, given her absenteeism throughout
custody proceedings that she initiated, the court reasonably could have doubted
whether appellant would appear on any date to which the trial might have been
continued. Although she apparently attended court-ordered mediation, appellant
had never appeared before the court, and she never provided an explanation for her
absence at the custody trial, either that day or during the more than four months
after the court issued its temporary custody order and before that order became
final.7 Moreover, the facts belie her complaint that the trial court conducted an “ex
parte” hearing. Not only did her attorney actively participate in the trial, including
by extensively cross- and re-cross-examining appellee, but appellant also had four
months before the trial court issued its final order in which she could have sought
to supplement the record with additional evidence. On these facts, then, we cannot
6
See Lyons v. Jordan, 524 A.2d 1199, 1203 (D.C. 1987) (holding that the
trial court did not abuse its discretion in granting a day-of-trial request for a
continuance when the defendants failed to appear and their counsel had no
explanation for their absence); see also Rymer v. Pool, 799 A.2d 371, 373 (D.C.
1992) (affirming the trial court’s refusal to grant a continuance when a party was
absent due to an alleged but factually unsupported illness).
7
Apart from her appellate counsel’s unsupported assertion at oral argument
that appellant was in Ethiopia, there is nothing in the record purporting to explain
where she was on the day of trial or why she did not appear.
8
say that the court abused its discretion in refusing to grant appellant’s day-of-trial
request for a continuance.
Appellant also argues that the trial court erred in granting custody to
appellee without first hearing from the children, either directly or through a
guardian ad litem. During the pre-trial hearings, appellant asked the court to
interview the children regarding their preferred custodial arrangement. The court
expressed an interest in hearing from the children, particularly D., who was
fourteen years old in 2014, but ultimately deferred making its decision whether to
do so until after it heard the evidence at trial. Ultimately, the court did not
interview the children or otherwise hear from them. Although appellant did not
renew her request at that time, she argues that her own absence at the trial made it
“incumbent upon the court” to ascertain the children’s views. Appellant argues in
the alternative that even though she had earlier declined to have a guardian ad
litem appointed, the court should have appointed a GAL sua sponte once it realized
appellant would not be present for the trial.
9
We agree with appellant that the court should have interviewed the
children.8 When determining a child’s best interest in a custody proceeding, the
court is required by statute to consider “all relevant factors,” specifically including
“the wishes of the child as to his or her custodian, where practicable.” 9 In this
case, however, the court received no evidence relating to the children’s wishes.
Neither party called the children to testify, the court ultimately did not interview
them, and appellee testified that he did not have any information as to their wishes
with respect to custody. While the court could find that the children were “thriving
under [appellee’s] care” and doing well in school, these findings and the evidence
underlying them did not speak to the issue of the children’s custodial desires. Yet
the children, who were fourteen, nine, and seven years of age at the time of trial,
were old enough to be capable of expressing an opinion as to whether they should
reside primarily with their mother in Ethiopia or their father in the District of
8
We perceive no merit to the alternative argument that the court was
required to appoint a guardian ad litem sua sponte merely because appellant failed
to appear for trial.
9
D.C. Code § 16-914 (a)(3)(A) (2012 Repl.).
10
Columbia.10 So far as appears from the record, it was “practicable” for the court to
consider their wishes by interviewing them.
Appellee argues that “[i]t is not the Court’s function to affirmatively seek
evidence related to the custody factors,” but cases in which the trial court is tasked
with discerning what is in children’s best interests “implicate[] the judge’s
responsibility, as parens patriae, to act on behalf of the child”—a role that in some
situations involves “more active judicial participation in the development of the
facts.”11 This case presented such a situation. Although the decision as to whether
to interview children in camera in custody disputes or determine their views in
10
See P.F. v. N.C., 953 A.2d 1107, 1117 (D.C. 2008) (remanding a custody
case in part because the court had ignored the custodial preferences of children
aged ten and seven); In re A.R., 679 A.2d 470, 479 n.14 (D.C. 1996) (“Children as
young as four years old have had their preferences followed with their desires
called an ‘important factor.’”) (quoting 2 Jeff Atkinson, Modern Child Custody
Practice § 4.44, at 295–96 (1986)); In re I.B., 631 A.2d 1225, 1232 (D.C. 1993)
(recognizing that children twelve and eight years old “were certainly old enough”
to express an opinion regarding what was in their best interest).
11
In re D.M., 771 A.2d 360, 369 (D.C. 2001); see also In re A.R., 679 A.2d
at 476 (“We recognize, however, that a child custody case is not a run-of-the-mill
dispute in which only the parties’ interests are implicated. . . . Accordingly, the
court acts as parens patriae on the child’s behalf, and ‘should do her (or his) best
to obtain all of the information needed to effect a judicious disposition.’”) (quoting
In re L.W., 613 A.2d 350, 352 n.6 (D.C. 1992)).
11
some other way rests with the sound discretion of the trial court, 12 given the age of
the children here, the dearth of other evidence as to their wishes, and the
requirements of the statute, we remand for the court to conduct a further inquiry
into their custodial preferences.
Appellant’s final claim challenges the sufficiency of the evidence and the
trial court’s findings even apart from the absence of evidence as to the children’s
wishes. “We review a trial court’s legal determinations de novo but apply a clearly
erroneous standard to its findings of fact.”13
Appellant argues that many of the court’s findings and conclusions
regarding the statutory factors bearing on the determination of custody were
incomplete or incorrect because the court lacked evidence appellant could have
provided and instead credited appellee’s testimony.14 We reject this argument, as it
12
See In re A.R., 679 A.2d at 476.
13
Jordan v. Jordan, 14 A.3d 1136, 1146 (D.C. 2011) (citing D.C. Code §
17-305 (a) (2001)).
14
For example, appellant claims that the court was “unable to ascertain her
wishes as to custody,” that her “absence was interpreted by the trial court as
evidence that she does not act in the children’s interests,” that there was minimal
evidence “regarding the parents’ ability to reach shared decisions,” and that the
trial court improperly credited appellee’s testimony that “he was the more involved
parent.”
12
stems in toto from appellant’s own default in failing without justification to appear
or submit evidence when she could have done so. Appellant also asserts, though,
that the court erred in treating this as a simple custody case rather than as a
relocation case. She argues that the court should have construed appellee’s
counterclaim for custody to include a request to relocate the children from Ethiopia
to the District of Columbia. Under Estopina v. O’Brian,15 relocation cases
implicate a series of additional factors that the trial court must consider before
granting a parent’s request to move the children—factors that the court did not
consider explicitly in this case.
We conclude, however, that the trial court was not required to apply the
Estopina factors because this was not a relocation case. The children lived and
attended school in the District when the complaint was filed. This alone
distinguishes Estopina and like cases, in which the litigation preceded the proposed
or contemplated relocation.16 Moreover, appellant failed to present any evidence
that the children’s presence in the United States was not attributable to the parties’
15
68 A.3d 790 (D.C. 2013).
16
See id. at 791.
13
prior agreement concerning their schooling, as appellee testified. We therefore
hold that the court did not err by not treating this as a relocation case.
For the foregoing reasons, we remand for further proceedings to ascertain
the wishes of the children respecting their custody and such additional findings and
conclusions of law as may thereupon be appropriate and in accord with this
opinion.
So ordered.