*1 DOWNING, Appellant, T. Brian PERRY, Appellee. M.
Charlotte 13-FM-1419, 14-FM-531.
Nos. Appeals. Court of
District Columbia April 22, 2015.
Argued Aug.
Decided *2 T.
Gregory Nugent, R. with whom'Brian brief, se, on the Downing, pro appellant. appellee. Gray
Rebecca GLICKMAN Before BLACKBURNE-RIGSBY, Associate NEWMAN, Judge. Judges, and Senior BLACKBURNE-RIGSBY, circumstances since the Associate seen into the 2012 entered Judge: particular, evidence a high-conflict and involves This case given tie-break- vealed that custody battle between prolonged child ing authority so that would ap- Brian appellant parents, effectively, more and so communicate *3 Perry, over their two mi- pellee Charlotte comfortable in autho- he would feel more pri- and E.D. The daughters, M.D. nor rizing more extracurricular activities for appeal in this is mary issue we address Yet, Downing and E.D. continued M.D. court its trial abused discre- whether the negative response2 patterned exhibit concluding that a “substantial and tion Perry’s which parenting, manifested itself circumstances,” in change rejection in his consistent the FTC’s (2012 914(f)(1) RepL), war- § D.C.Code 16— original in favor of his recommendations parties’ of the modification ranted tie-breaking process each time the position arrangement. The court’s custody Consequently, girls the was utilized. were Perry’s custody granted modification child in extracurricular activities enrolled fewer Downing’s tie-breaking request to remove agreement, than before the and authority parties in instances where the Downing prohibited participat- them day-to-day legal dispute over custo- in ing previ- in activities matters, dy and instead vest Notably, ously participated. Family in a Treatment Coordina- neutral court from the evidence that determined (“FTC”). undisputed tor evidence re- Downing his tie-breaking had used author- Downing had disallowed essen- vealed ity essentially legal “de effectuate facto tially all extracurricular custody” such over the children. Given accepted girls, has never the FTC’s evidence, trial court did not abuse its when it differed from his recommendation concluding in discretion apрeal, Downing princi- position. own On authority in a utilized his in pally that the trial erred contends “not workable ] manner that was and [ modifying custody arrangement be- children, of the minor Perry a sub- cause failed demonstrate e.g., extracurricular activities mushroom- stantial and material circum- multiple affecting into issues the minor justify stances to the modification. He interest, including children’s best argues also the trial court’s order physical well-being.” mental and Accord- delegated legal custody Core issues of ingly, we affirm the trial court’s order the FTC.1 modifying parties’ custody agreement. there a substan- We conclude Background I. Factual tial and material in circumstances custody merely chapter latest supporting appeal This the modification case, agreement high-conflict long-standing in a conflict between the parties The instant trial court’s order did not dele- over their children. 1, 2012, custody custody to action arises from a gate legal cоre issues of June summarize, parties that FTC. To there was an unfore- between the iting "patterns that ... were cer- 1. raises three additional claims of behavior summarily which we address Part III. easily triggered tainly and ... of much more infra [Perry] negative approached” set ... when Missar, Specifically, 2. Dr. Charles David girls. suggestions for the him her own case, FTC in this described as exhib- later, year Approximately one merged, into a June June but incorporated, 14, 2010, (“2012 Downing filed motion another 20, 2012, by the court consent order seeking full mak- agreement”). ing essentially the same accusations as before, namely, made unilateral History of Conflict A. sabotaged his relationship decisions and 2006, Downing and divorced however, Pending trial, girls. with the M.D. daughters, born have two minor into parties entered the instant 19, September E.D. born May agreement. Under terms divorce, parties en- Upon their agreement, joint shall share “[t]he agreement which into a settlement tered legal custody of the childrеn [and] [i]n Perry primary physical granted agree- are not the event custody of joint both regarding ment decision *4 daughters. Yet about one two minor health, education, reli- impacts which 2007, later, Downing August year on welfare, including gion general or extra- legal custody filed a motion for sole activities, children, curricular Perry made uni- contending However, with a parties will consult FTC.” legal to custo- pertaining order, lateral decisions the terms of the 2009 Down- unlike sabotage to Down- dy sought matters and than the FTC —now final —rather daughters.3 with his ing’s relationship any to resolve dis- matter ultimately agreement parties settled the on parties The between the agreement agreement via a by reaching custody explicitly a new issues. The parties agree on March states that that the “[b]oth order issued consent (“2009 order”). not be asked to decisions 2009 or- FTC will make 2009 Under the any tie-breaking authority. or have The der, joint Downing Perry and maintained only will make FTC recommendаtions.”5 approxi- and the children custody. [Id. mately fifty-fifty residential According Desjardins, to Jamie the for- A-2, agreement This called 3] helped ad litem who mer Guardian broker FTC, to with a who “shall assist ties work agreement, the 2012 she recommended decision-making and parents joint tie-breaking authority giving Downing joint-deci- such resolving conflicts when to disputed legal custody decisions over sion-making is not feasible Specifically, “hoped” she lower conflict. A- joint to a agree [Id. cannot decision.” Downing that it “relax” and “make would was authorized “to resolve 11] FTC authorizing him comfortable feel more [i.e., recom- dispute issuing written It things for the children.” activities] mendation, upon binding [Downing] which be if Desjardins’s “hope shall tie-breaking authority that he until it is set aside had ... unless and okay for would like it would be by the feel or modified Court.” im- agreement provisions of the 2009 order were never initial and 3. While this settlement appear in dispute does not plemented. record of the record, portion of the trial court’s referencing key agree- provisions of this order agreement superseded 5.Although history procedural of the 2007 ment and the order, essen- provisions of the 2009 the FTC disputed by dispute appear be does not tially provisions of the Consent "[a]ll parties. 19, 2009,” Custody on March Order entered unchanged, were in- and therefore remained However, (and Downing testified corporated into the 2012 testimony) court credited many girls’ partic- because he are areas of the “there to do certain children [i.e., worry [Perry] ipation upbringing] ac- would wouldn’t have making tually agree process -other activi- on” the up for do signing them be ” joint logical “in a reasonable and decisions ties .... so and rational manner has become con- initially following Downing claimed agreement tentious” that even areas of great “a sense he felt Perry are lost in the between relief,” thought would For fighting. example, order avoid insidе of a courtroom see the “never negative immediate reaction Desjardin had again.” Perry verified that Perry to Downing, Dr. Missar counseled giving Downing tie-breaking recommended “in “phrase suggestions” her “very authority, it would be making terms so as to avoid different Perry go to court. risky” ‘this I or ‘this is sound like is what want’ that, hoped with the advice a neutral ” However, my suggestion.’ Perry did not party,' Downing “might able to third be negative response have the instant same decisions in the best interest [the] make fact, Downing’s suggestions. Dr. Mis- thought also it was the children.” She sar single could not recall instance circumstances,” best deal “under the suggestion made that a now party third individual would nega- exhibited the same instinctive “truly dynamics going that were see the *5 Notably, tive reaction. Dr. Missar also hopefully help and address [them] would that, experience in his as an testified through those and work them and commu- professional working and in his capacity effectively.” nicate more families, with has not numerous he seen However, despite the 2012 “high conflict situation” “it has been where authority, giving Downing tie-breaking productive” par- effective one of the Downing again once filed for sole and tie-breaking authority. ents to have The primary physical custody of M.D. and E.D. testimony Dr. court credited Missar August multi-day 2013. A eviden- effects, practical of the terms “[i]n tiary modify hearing on whether given circumstances between the par- 2012 custody arrangement between [i.e., Downing Perry],” and ties there was parties followed. Downing’s not much difference between tie-breaking authority current and Hearing Evidentiary B. and legal custody. award sole Downing’s of the Tie-Break- Use Power6 ing reflects in The record three instances At evidentiary hearing, Downing’s patterned negative the chosen FTC, Missar,7 Dr. sponse Charles David testified towards thwarted the FTC began working dispute process, that he in in and resulted ” early-2013. exercising late-2012 or Dr. Missar “de facto n occasions, opined that’ the conflict children. all three between On rejected ties long history perfunctorily from “a mu- the FTC’s recom- stemmed tual although in favor of original mistrust.” He mendation his own testified purposes expert in appeal, For we center our reci- 7. Dr. testified as an witness Missar presented tation of the evidence at the hear- psychology, parenting of clinical fields FTC, parties’ on the with the coordination, interactions family and treatment. and use of his author- ity following so).” Following Down- First, unilaterally parent do prevented he position. vaccine, decision, ing’s spoke Dr. with M.D. even Missar- receiving a HPV from M.D. E.D. Girl recommended and about Dr. Missar though matter] decision-making both of them indicated that [in Scouts and “unilateral In Dr. Missar’s appropriate.” they participating not Scouts. “liked Girl [was] to the goes type decision opinion, They who were in Scouts. “[t]his friends Girl had necessary joint-parent deci- ... of heart They like some the activities Girl’ Nevertheless, in one-sеn- sion-making.” expressed some [And] [b]oth Scouts.... decision, Downing de- “tie-breaking” tence upset participating ... about not Girl now, that, “Right I do consent clared Likewise, .ongoing on an basis.” Scouts [v]accine, it won’t be done to the HPV that, when she informed testified" Second, Downing consent.” I do unless not attend E.D. she could GOTR attending the children prevented also '“distraught, very up- E.D. year, became though the summer Wright, even Camp set.” with the Perry’s week during camp fell Downing first, thought that he testified diplomatically rec- Dr. Missar children. if girls overly would be scheduled focus on parties should ommended activity, participated in either camp, girls’ interest gauging the challenges,” giv- “logistical there would be camp that, whether the having resolved Perry were divorced. en that week, he Perry’s or during fell Yet, about, later, Downing clarified that Girl decisions that “unilateral believed only “one to two scheduled” Scouts parent’s week [was] on another’s activities month, per and conceded that he events Downing in again, Yet appropriate.” actually not know M.D. was did whether stat- explanation without sentence and one up any extracurricular signed not attend ed, will “[M.D.] [E.D.] only .weekly at and that E.D. present, Wright this summer.” Camp fact, Perry.testified tutoring sessions. *6 dis- example merits extended The third up any for extra- signed that M.D. not girls to the Downing’s refusal let cussion— activities, opined and Dr. curricular Missar and another extracur- attend Girl Scouts involved “below girls that the were in.a Run activity, Girls on the ricular of activities for children average” number (“GOTR”). previously E.D. had M.D. and cross-examination, Down- age. of their On in both Scouts and participated Girl disallowing for ing gave a different reason Downing testified that he believed GOTR. activities, not explaining did these that.he great activity,” [was] “Girl Scouts girls on Per- any the approve activities activity” “good that GOTR was likewise Perry because ry’s custodial time However, “girl-oriented.” follow- that was taking to few Girl Scouts started E.D. Downing used his ing agreement, the pro- “following the without first meetings -girls tie-breaking authority prohibit to the cess,” i.e., agreement, which re- the activity, even participating from in either -It parents. of both the consent quired though explicitly Dr. Missar recommended prevented Downing likewise appears girls participate to Girl continue attending because from GOTR girls enjoy they both to Scouts because seemed girls on slots for both Perry reserved implored Downing Dr. Missar even it. consent. Accord- without GOTR girls that “for the sake agree going to ing Downing, to he “wasn’t he participation peers,” consistency leveraging to to that kind underhanded get girls to should “make efforts (or behavior.” at a minimum allow these activities testimony bolstered the tri- The trial court further observed that
Dr. Missar’s Downing abused his authori- conclusion that subsequent al court’s ty, it especially denying as relates to girls prohibit Downing’s decision quests participate for M.D. and E.D. to extracurricular activi- attending activities. Spеcifically, extracurricular more on his mistrust premised ties was trial court found “desire negative response Perry patterned and his power for total control and veto over the Specifically, Perry’s suggestions. towards children, unreasonably minor him to drove Perry approached Dr. Missar testified reject mi- could enhance the present possi- on how him for advice lives[,]” nor children’s reference Girl girls participate in bility having Girl Scouts and The trial court also GOTR. GOTR, girls since both have Scouts family dy- considered the “mosaic of the friendships” “longstanding with individuals namics” and found that nev- “has activities, and that “she saw them in these tie-breaking authority er utilized his as reasonable after-school activities a final keep- make decision that was not in girls.” for the Dr. would be beneficial ing with initial [his] decision before receiv- sug- to couch the Missar counseled Dr. Missar’s recommendation.” The gestion girls if it came from the court admonished de effecting very strongly against “react[s] legal custody sole over the facto [Perry] suggests] things her own though even did initiative.” provide Downing with “unilateral decisions,” make nor did C. Trial Court’s Decision grant Downing right “the to make final regarding decisions the minor children’s seventy-four thorough and detailed general process welfare when the FTC order, page the trial court denied Down- engaged by not been parties.” ha[d] ing’s primary motion for sole Lastly, court credited Dr. Missar’s ex- custody of residential the children. The pert opinion party that “neither should granted Perry’s request trial court tie-breaking authority in a high con- Downing’s tie-breaking authority over le- flict case such as this one.” gal custody disputes removed in- be stead vested the FTC. made this Ultimately, the court concluded request opposition Downing’s her mo- current was “not framework workable and legal custody, tion for sole in the best [was] *7 request. construed as a cross-motion children,” added), minor (emphasis and trial court concluded had dem- parties’ long history of an “[t]he ina- in change onstrated a “material circum- bility to joint communicate to reach deci- anticipated stances because she had concerning sions most matters chil- [the [Downing’s] ... rejection of general consistent well-being” required dren’s] the each recommendation made Dr. Missar tie-breaking court to vest “the in authority regarding the minor children’s extracurric- the and [FTC] remov[e] from [Down- ular ing].”8 generally activities.” See Johnson v. United timely notify 8. The trial Perry regarding court also took into consideration the children's medical/injury breaches of certain notification travel schedule and issues. provisions Custody Downing's of the Consent 2009 The court concluded conduct incorporated Order regard that was the into the 2012 in this was further evidence of agreement. Specifically, ongoing problems the trial court con- and of the “historical cluded that inability appropriately failed to communicаte at times ties'
481 (D.C.1979). clearly 354, apply but a erroneous standard to Ac- States, 361 A.2d 398 Jordan, findings supra, of fact.” 14 its the court ordered that cordingly, at 1146. A.3d authority tie-breaking FTC “shall matters on which garding appeal, Downing argues that tri- On the agreement,” an reach parties cannot modifying its al court abused discretion provisions thereby superseding custody by taking away in the 2012 right granting awarding and it to the FTC. appeal This followed. arguments makes two this re- First, gard. Downing argues that there Authority Tie-Breaking II. change was no material circumstances a only reverse This court “will justifying the trial court’s decision to modi- regarding child trial court’s order claim, fy custody. Downing’s second of manifest abuse discre upon finding address, only briefly which we is that the 1136, Jordan, 14 v. A.3d tion.” Jordan responsibility to court abdicated its decide (D.C.2011) (citation quo internal legal custody, 1146 “core issues” and instead omitted). Moreover, rights tation marks those onto the FTC. conferred pre rulings “come to us with court’s Change A. in Circumstances v. Hutchins sumption of correctness.” (D.C.2007) 680, 917 A.2d Compton, explained that “the We have (citation quotation and internal modify [custody arrangements] marks court can omitted). judicial (1) discre The exercise if it finds that there has been however, tion, grounded “upon must be circumstances which was principles and must rest on legal correct the time the foreseen at (2) entered, v. Fer is both firm factual foundation.” Wilkins 655, (D.C.2007) 666-67 welfare and guson, 928 A.2d substantial and material T.L., Foster- A.2d 1090 best interest of the children.” In re (quoting (D.C. Puente, (D.C.2004)). Accordingly, review a A.2d “[w]e Gross 16-914(0(1). § 1995);9 see also D.C.Code de novo trial court’s determinations interest; (D) adjust- the child’s regarding as well as child’s the minor home, school, com- ment his or her [Downing's] deci- view that he had final (B) munity; physical health the mental and sion[-]making authority even outside of involved; (F) evidence of of all individuals process.” of the [FTC] context ...; (G) capacity intrafamily offense parents and reach of the to communicate child, best interest of the 9. To dеtermine the affecting the child's wel- shared decisions § 16- the trial court looks to D.C.Code fare; (H) willingness parents to of the 914(a)(3), which states: (I) custody; prior involvement of share determining of a care life; (J) poten- parent the child’s each child, shall be the best interest the child disruption of the child's social tial primary consideration. To determine life; (K) geographic proximity of school child, the court shall the best interest parental relates to the homes factors, including, all relevant but consider resi- practical of the child's considerations *8 (A) schedule; (L) the wishes of the child as not limited to: paren- demands of dential the custodian, practicable; (M) to his or her where age of employment; the and number tal (B) children; par- (N) parent the or sincerity parent’s the wishes of child’s of each (C) (O) custody; ability the inter- request; parent’s ents as to the child’s to finan- custody arrangement; interrelationship cially joint of the child suppоrt action and (P) parent parents, impact Temporary or her on Assistance with his or her or his Families, Work, Em- may Needy Program or on siblings, any person and other who Responsibilities, medical ployment, and and emotionally psychologically affect the party tie-breaking is on the seek- and therefore final decision- proof of The burden modification, making prepon- authority, attempt is an her and ing the part to conflict Down- reduce and “relax” See D.C.Code of the evidence. derance ing, that record, so he would “feel more comforta- 16-914(f)(2). con- this § On [i.e., ble-authorizing things activities] Perry her burden of that satisfied clude Downing the children.” corroborated of the evidence proof by preponderance sentiment, claiming initially he felt “a change that a substantial material Likewise, Perry sense of great relief.” warranted the court’s circumstances expected testified she that a neutral Downing’s tie-breaking authоri- of removal Downing help would her and commu- vesting power in ty and instead better, thereby allowing Downing nicate , FTC. decisions in best “make interest Change in Circumstances children.” 1. Material [the] expectations determine whether there of the in enter- We must first i.e., agreement, pro- in cir- the FTC unforeseen deciding Downing before whether cess in which had cumstances modi- custody arrangement authority improve fication of the would would communications the' children. and increase the extracurricular be children’s Foster-Gross, activities, supra, clearly Notably, 656 A.2d at were not met. See Downing undisputed girls It it is previ- is well-documented and while Perry relationship ously a fractious that af- both had attended GOTR Girl Scouts, ability to Downing fected their make once received tie-break- for their ing authority, suddenly decisions children.' re- he disallowed both activities, sought full peatedly girls the chil- which left the with—in Dr. dren, accusing sabotaging ’expert his Missar’s average” view—a “below girls unilaterally fact, lationship with the than number activities. behalf, making tutoring, on their not appear decisions even does that the chil- though equal legal rights. any dren were involved extracurricular In particular, the record reflects that at all. precluded activities Downing’s biggest girls attending, despite Perry’s source of concern and wish Perry’s they supposed participate, despite discord was circumven- Dr. Mis- in signing they participate tion of consent the children sar’s recommendation up for extracurricular on the basis that such activities. Conse- activities would context, the, in this quently, consistency participation former ensure “their Guard- litem, Desjardins, explained, peers,” ian ad thus in and was their best agreement, gave'Downing interests.10 assistance; (Q) par- explicitly "and the benefit to the ment belied the record evi- dence, primary which shows one / of the ents. specific reasons the entered into dissenting colleague argues 10. Our that thеre was so that was no material in circumstances allowing would feel more comfortable in parties’ relationship here because the girls participate in more extracurricular been contentious both only before and after supra activities. See at 482". Not did agreement, and that should have happen, girls actually participat- by giving Downing tie-breaking in,fewer foreseen that ed or nó extracurricular reject following agreement. he could her and the FTC’s Neither day-to-day legal custody recommendations on en- ties had foreseen this result when Yet, argu- at 489. matters. Post the dissent’s tered into the 2012
483 Wilson, that In concluded trial we was unreasonable —he Downing’s refusal activities, its in con- court not abuse discretion did these that he refused explained an cluding that unforeseen material “great” as he himself characterized conflict, where the change was established activities, Perry did “good” since between the had “escalated” for his con- asking “process” follow Id. Simi- the execution . for disallow- reason sent first. case, in this did not larly, court his more about activities was ing these Perry not have concluding in could err nega- patterned Perry and his issues with his tie- Downing would use foreseen suggestions, and does response to her tive to exercise sole breaking authority defacto chil- interests of the promote the best custody by preclud- legal over the children Further, 2012 hope that the. dren. exercising equal rights her ing Perry to better communi- agreement would lead more by blocking even co-parent as a Perry cation between extracurricular the children’s to ever failed also unrealized. than before. tie-breaking authority a manner his use original position, inconsistent with Interest of the Children Best had de sole essentially acted as if he facto Further, that' record reflects custody of legal the children. rejection girls’ extracur had The trial court found impact ricular activities a material had of the evi- by preponderance a established well-being. particular, In the children’s there had been a dence in his recommendation Dr. Missar noted change in circumstances because - participate Girl girls should undisput- [Downing’s] anticipated “had not for the important it was Scouts because ed, consistent, rejection of recommen- each “consistency participation girls to have regarding Missar dation made Dr. The trial court also observed peers.” with activities.” minor extracurricular children’s lack of extracurricular activities Craig, 987 A.2d See also v. Wilson effect on the' plainly could have adverse (D.C.2010) (concluding that there well- physical children’s mental and minor in Circumstances where a material being.
the trial court found
high-
a
that this is
We are also mindful
agreement expecting
into
entered
case,
the fact
and'
conflict child
hostilities,
that the conflict
but
reductiоn
his. tie-
Downing has never utilized
escalated). The
continued and
had instead
con-
breaking
decision
.make
findings
supports the trial court’s
record
initial
Such result
trary
position.
to his
conclusion,
no error.
and we discern
of the children
best interests
is not
similarly conclud-
Craig,
v.
Wilson
de
giving
it is tantamount
in find-
did not- err
ed that the
the children.
over
sole
facto
in cir-
Jordan,
ing
See,
an unforeseen material
at 1159
supra,
A.3d
e.g.,
a modification
to raise
justifying
parent’s right
cumstances
(concluding that a
case,
custody.
with the
In that
must be reconciled
her children
interest,
custody arrangement hop-
into a
parent’s
entered
same
rights
custo-
biological parent’s
the child
principle
that would moderate
chil-
way
im-
ultimately give
before
parents,
between the
must
dy disagreements
Greene,
interest);
Prost
relationship between
prove the contentious
dren’s best
(D.C.1995) (concluding that
hostility
the A.2d
parents,
and reduce
that “interferes
parent
one
1164. conduct
other.
Id. at
pаrents towards each
*10
welfare[J”).
affecting
of
children’s need
decision
the child’s
[the]
fulfillment
with the
of the [other
and love
guidance
for the
The court also considered Dr. Missar’s ex-
a serious
on the
may have
parent]
testimony
party should
pert
that neither
effect
”) (emphasis
children
add-
authority in
tie-breaking
high-con-
welfare of
ed).11
Wilson, supra,
flict case such as this. See
analyzed
tie-
trial court
whether
The
(stating
judge’s
Paragraph
agreement,
of the 2012
to the start
effect,
counsel
which remains
clarifies
*12
the-hearing
argued
of
he
process
only
utilized
where
in. which'
FTC
will be
“regarding
Perry “simply opposed” Downing’s
there is a
cus-
motion
dispute
health,
tody
the
impacts
custody,
decision which
be
and therefore “should
education,
general welfare, in-
religion or
by
pleading].”
unper
bound
are
[her
We
activities,
cluding
the
extracurricular
by
argument.
suaded
The court’s de
of
childreni,]” i.e.,
In'
day-to-day matters.
cision,
plead
while informed
the initial
words,
trial court’s or-
although
ultimately
by looking to
ings, was
decided
by vesting
custody
der modified
the tie-
in the
evidence
record. We conclude
FTC,
breaking authority in
FTC’s
Downing’s argument
appeal
is
on
sim
decision-making powers
expressly
are still
ilarly without
merit. As
stated
governed by
preserved portions
(D.C.
Moore,
762,
Moore v.
391 A.2d
768
agreement,
2012
which make clear
it
1978):
regarding day-to-day
to disputes
is limited
parties
impliedly
Whether
have
contest-
not the
involving
matters
i.e.,
parties recog-
ed a matter
whether
“core issues of
and visitation.”
an
not
nize that
issue
stated
Jordan, supra,
for that
it.
dissenting
part by
Judge
Associate
party
either
is found
“[i]f
ment states
pages
GLICKMAN at
488-89.
of this
non-
Agreement,
to be in breach
*14
for
prevailing party
responsible
will be
GLICKMAN,
Judge,
Associate
expenses
fees and
incurred
the other
in
in
concurring
part
dissenting
part:
to
con
party relating
the breach.” The
I
in
Although
join
majority opinion
obligates Downing
pay any
tract
to
attor
respects, I
trial
would reverse the
ney’s
by Perry
defending
incurred
in
fees
court’s decisions to divest Mr.
rights.
parental
her
See Assidon v. Ab
tiе-breaking authority
respect
to
his
with
boushi,
939,
(D.C.2011).
16
942
As
A.3d
custody disagreements
give
to
such
Zirkle,
recently
v.
97
stated
Saxon
authority
Family
to a
Treatment Coordina-
568,
(D.C.2014),
A.3d
576
“this court and
may modify
tor. A trial court
a voluntari-
may
others have
attorney’s
held that
fees
ly negotiated
custody agreement
child
though representation
be awarded even
(1)
“only if it finds
has
there
been
provided
pro
was
on a
bono basis.” Con
change not
circumstances which was
sequently,
repre
the fact that
agreement
at
foreseen
the time the
on a pro
pre
sented
bono basis did not
(2)
entered,
change
both
is
being
attorney’s
clude her from
awarded
substantial
to
and material
the welfare and
fees
and costs
the services
my
interest of the children.”1 In
See,
provided.
e.g.,
firm had
Centennial
sup-
not
view the evidence
record does
AECOM, Inc.,
Archaeology, Inc. v.
port
finding
that these conditions were
(10th
Cir.2012) (observing
F.3d
inmet
this case.
many
“courts construe the term attor
mean,
ney
ruling, my
not
actuаlly
upholding
the amount
In
the trial court’s
fees
paid
party
attorney,
colleagues agree
to its
with its conclusion that
owed
Puente,
upon
v.
been
Foster-Gross
656 A.2d
a determination
there has
(D.C.1995);
(2012
16-914(f)(l)
§
D.C.Code
and material
in circum-
substantial
("An
Repl.)
custody may
award of
be modi-
or termi-
stances and that
modification
upon
or terminated
fied
motion of one or
child.”).
nation is in the best interest of the
motion,
parents, or on
both
the Court's own
authority
ry might
hoped
agree-
have
that the 2012
tie-breaking
his
Downing abused
improved
FTC’s
communica-
rejection
ment would lead
by his “consistent
original
in favor of his
area,
tions and reduce the conflict
recommendations
tie-breaking process
time the
position
expressly
each
fact
remains
she
con-
Supposedly,
Ante at 476.
was utilized.”
templated
agreed
would
tie-breaking
his
Downing “used
say,
the final
and that he would be
‘de
cus-
essentially
effectuate
reject
Family
free to'
her wishes and the
facto
”
Id. I think this
daughters.
his
tody1 оver
Treatment Coordinator’s recommendations
fact,
col-
point
my
hyperbole.
regard
the children’s extracurricu-
478-79, the
acknowledge, ante at
leagues
lar
It
cannot be main-
activities.
therefore
only
instances
three
record reflects
very
tained that
exercise
Downing exercised his
him
authority Perry agreed
give
was an
its
authority; and the
court based
change of circumstances.
unforeseen
them,
only
one of
decision
Second, Downing’s exercise of his tie-
objection
daughters’
“unreasonable”
substantially
not
breaking power was
activi-
participation
two extracurricular
materially contrary to the welfare and best
ties,
Run.2 In
and Girls on the
Scouts
Girl
of the children. This case is un
my opinion,
support
the record does
Craig,5
like Wilson
where this
Downing’s actions on these
conclusion
upheld
custody agree
the modification of a
amounted to an unforeseen
occasions
of its
ment because
unforeseen and seri
following
change of circumstances
ously
consequences
par
harmful
agreement that was sub-
ties’ 2012
case,
materially
to the
In that
as the trial
stantially and
adverse
ties’ children.
found,
of the children.
judge
parents
expected
welfare and best interest
had
reduce the conflicts
would
First,
no
there was
unforeseen
them,
hostility
“[t]he
between
but instead
relationship
between
circumstances.
increased to
extent
Downing and
was contentious both
*15
materially
anticipated and that was
affect
after
entered into the 2012
before and
Expert
of
children.”6
ing the welfare
nothing
in the record
agreement. There
children
testimony established
relationship
suggest
to
their
having trouble at school and had
were
Moreover, my
changed for the worse.3
definable,
“discernible,
diagnosable condi
acknowledge, the involvement
colleagues
for
tions which ...
it more difficult
[made]
in extracurricular activities
of the children
custody arrаnge
to
cope”
them
with
principal
“source
discord” even
ments,
that the chil
and the
found
agreement.4
to the 2012
While Per-
perceived
the incidents of
Dr. Missar
on the other
occasions were
2. The issues
two
parties were
dramat-
between the
less
eleven-year-old daughter
conflict
should
whether his
vaccine,
following
ic
HPV
and whether the
receive the
camp.
attend summer
children should
("In
particular,
the record
4. Ante at 482
biggest
concern and
flects that
fact,
suggests
In
the evidence
that the acri-
3.
Perry’s supposed cir-
discord was
source of
mony
had declined some-
between
signing
the chil-
cumvention of his consent
Missar,
Family
Treatment
what. Dr.
activities.”).
up for extracurricular
dren
Coordinator,
testified that both
were
attempting
comply with
recommenda-
to
(D.C.2010).
5.
lously) pending litigation. unaware of the testimony partici- the girls
There was average in a below number extra-
pated age
curricular activities children their Downing refused to allow them to ECKEL, In re John-Allen Grason on the participate Girl Scouts and Girls Respondent. My colleagues Run. call refusal.“un- .this No. 13-BG-889. and assert that his reason for reasonable” disallowing promote did “not Appeals. District of Court of Columbia interests of Ante the children.” Aug. Filed 2015. However, at even if refus- als his. consternation were motivated. Registration Bar No. BDN: Perry, the fact remains that there 324-10. suggest was no that his evidence deci- harming in any sions were the children FISHER, Judge, BEFORE: Associate way, substantially let alone and materiаl- FARRELL, and NEWMAN Senior ly.8 Judges. sum, it'may while have been unwise agree give ORDER authority, I do believe the PER CURIAM trial court had the supportable without On consideration of the order'of certified unforeseen, substantial, finding of an Appeals Maryland and the' Court indefi nitely suspending respondent “A circumstances. mo- tion practice jurisdiction, for modification is not to be of law in that see used pretense' equities Attorney as a Grievance relitigate Maryland Com’n of *16 Eckel, 75, 115 (2015), if decree.”9 Even 443 Md. A.3d 1, 2015, July court’s directing modification the chil- court’s order re better dren, legally spondent why is not sufficient. to show cause the function We skip ally equivalent discipline have held that the trial court cannot of an indefinite unforeseen, finding suspension imposed over should not be -with circumstances, subject showing to a of fit- move direct- reinstatement them, 7. Id. at 1162. vide for and make' decisions in their best interests.” testified, fact, 8. Dr. Missar Graham, solid,” 9. 597 A.2d 357 n. 5 Graham "decision-making very abilities are (D.C.1991). general very and that in he demonstrated "a rational, logical daughters’] of [his assessment Foster-Gross, needs, them, pro- how 656 A.2d at to intervene in how to 737-38.