Duguma v. Ayalew
Duguma v. Ayalew
Opinion of the Court
This is Martha Duguma’s appeal from the trial court’s order 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 coxxrt 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 ai-gues that the court erred in failing to intei-view 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 eir in refusing to
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.
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.
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.
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 guardianship of the children was subject to a number of limitations while the action remained pending.
The custody trial went forward. Appel-lee was the only witness. When the trial concluded, the court issued a temporary
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.
We hold that the trial court did not abuse its discretion in refusing to grant a continuance.
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 establish good cause to grant her counsel’s oral request.
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.
We agree with appellant that the court should have interviewed the children.
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
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.”
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.
We conclude, however, that the trial court was not required to apply the Esto-pina 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 Estopi-na and like cases, in which the litigation preceded the proposed or contemplated relocation.
For the foregoing reasons, we remand for further proceedings to ascertain the
So ordered.
. The court gave the parties two weeks to decide, thereby affording appellant’s counsel the opportunity to consult with his client.
. 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)).
. Super. Ct. Gen. Fam. R. G (b).
. Id.
. 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)).
. 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).
. 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.
. 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.
. D.C. Code § 16-914 (a)(3)(A) (2012 Repl.).
. 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, Modem Child Custody Practice § 4.44, at 295-96 (1986)); In re LB., 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).
. 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)).
. See In re A.R., 679 A.2d at 476.
. Jordan v, Jordan, 14 A.3d 1136, 1146 (D.C. 2011) (citing D.C. Code § 17-305 (a) (2001)).
. 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.”
. 68 A.3d 790 (D.C. 2013).
. See id. at 791.
Reference
- Full Case Name
- Martha DUGUMA v. Balehager AYALEW
- Status
- Published