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06/10/93 RICARDO GALBIS v. VILMA NADAL

June 10, 1993

RICARDO GALBIS, APPELLANT
v.
VILMA NADAL, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Zinora Mitchell-Rankin, Motions Judge)

Before Ferren, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : Appellant Ricardo Galbis challenges a trial court order modifying his custody rights and child support responsibilities concerning his minor son. Specifically, Galbis contends that the trial court erred (1) in concluding that there was a change in circumstances sufficient to justify the modification of a prior order for permanent custody; (2) in not lifting previously ordered restrictions on the child's overnight stays at Galbis's home; and (3) in failing to provide adequate justification for the amount of child support it ultimately ordered Galbis to pay. Concluding that the trial court did not abuse its discretion in any of these respects, we affirm.

I.

Ricardo Galbis and Vilma Y. Nadal are the natural parents of a minor son, born September 24, 1984. Galbis and Nadal ceased living together in August 1989, and the boy continued to reside with his mother. On November 14, 1989, the trial court entered a temporary order of support requiring Galbis to pay $1,048 per month in child support, plus the costs of the child's school tuition, mental health therapy, and health insurance. Subsequently, in a final order dated April 16, 1990, the court awarded joint custody of their son to both parents, although he was to live primarily with Nadal. This order vested in Nadal the power to make all final decisions concerning the boy but required her to consult with Galbis before making any decision regarding their son's health, education, and welfare. The order also required that an adult child care provider be present during any overnight visit by the boy at Galbis's home.

In July 1991, the trial court held hearings on the parties' cross motions to modify this custody order and to enter a permanent order of support. The court then issued an order dated August 16, 1991, awarding to Nadal sole custody and exclusive decision-making authority over the child, but still requiring her to consult with Galbis concerning the boy's health, education, and welfare. The order also allowed Galbis liberal visitation rights but continued the supervision requirement for any overnight stays. The court also ordered Galbis to pay $2,471 per month in child support, to pay one-half of his son's school tuition, and to maintain both health insurance for his son and a life insurance policy naming his son as the beneficiary. On December 19, 1991, following Galbis's motion for reconsideration, the court reduced the amount of child support by $333 (one-half of the child's school tuition) to $2,138 per month but otherwise left the previous order undisturbed.

Galbis now appeals from both the August 16, 1991, order and the December 19, 1991, order.

II.

The trial court's determinations regarding custody of minor children, including any modifications of its initial orders, are accorded due deference and will only be reversed for an abuse of discretion. See Fitzgerald v. Fitzgerald, 566 A.2d 719, 721 (D.C. 1989); Rice v. Rice, 415 A.2d 1378, 1383 (D.C. 1980). However, any "modification must be based upon changed circumstances which occurred after the . . . decree was entered and were not contemplated by the parties at the time." Rice, 415 A.2d at 1383 (citations omitted); see also Graham v. Graham, 597 A.2d 355, 357 n.5 (D.C. 1991) ("A motion for modification . . . is not to be used as a pretense to relitigate the equities of the prior decree."). Furthermore, "the specific modification . . . chosen by the court . . . must be supported by the findings[,] . . . rationally related to the changed circumstances it purports to counter" and "reasonably calculated to promote the child's best interest and welfare." Rice, 415 A.2d at 1383. (citations omitted).

In this case, Galbis argues that there was no change in circumstances sufficient to support the trial court's modification of the initial joint custody award of April 16, 1990, to sole custody on August 16, 1991. We disagree.

As the trial court noted, the April 1990 custody order had found that "both parties have been actively involved and in agreement on the major decisions regarding the child's education and welfare." Based upon this finding, this order had directed Galbis and Nadal to continue "to make the appropriate sacrifices to enable them to cooperate with each other." Upon reviewing the parents' relationship in August 1991, however, the trial court found that "the parties' ability to agree on these fundamental areas of the child's life no longer exist." Specifically, the trial court noted that there had been a series of incidents in which Galbis had acted unilaterally and in disregard of the April 1990 order's directive that final decision-making power was to be vested in Nadal. *fn1 Consequently, the court concluded, the circumstances had changed since the issue of the original order for joint custody.

We believe that the evidence of Galbis's repeated violations of the terms of the original custody order fully supports the trial court's Conclusion that the circumstances had so changed as to render the provisions of the original order neither practical nor proper. Galbis's contention that there had been no change in circumstances because he and Nadal had bickered over their son all along amounts to nothing more than a dispute over the court's factual findings, to which we defer unless clearly erroneous. Super. Ct. Dom. Rel. R. 52(a). Since Galbis has advanced no ground on which we might conclude that the court's findings are clearly erroneous, we will not upset those findings. Moreover, in light of the trial court's factual findings, we conclude that the trial court's decision to vest sole custody in Nadal was entirely reasonable and rationally related to the change in circumstances. *fn2

III.

Galbis also argues that the trial court abused its discretion in failing to rescind the requirement that all of his son's overnight stays be supervised by an adult child care provider, preferably the woman who has been the boy's caretaker for many years. The trial court found that this requirement was justified because Galbis often works evenings (even on days when his son is visiting), because someone would have to stay with the boy during these hours in any event, and because the child's best interests would be served by the presence of his regular caretaker at these times. Moreover, the trial court found that there had been no ...


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