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B.J.P. v. R.W.P.

February 3, 1994

B.J.P., APPELLANT
v.
R.W.P., APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. George W. Mitchell, Motions Judge)

Before Ferren, Schwelb and Sullivan, Associate Judges. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Associate Judge Ferren

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: This is an appeal by B.J.P. (the mother) from an order of the Superior Court modifying the child visitation provisions of a New York divorce decree. The mother has custody of the parties' daughter; her former husband, R.W.P. (the father), has custody of their son. The substantive controversy has primarily focused upon the circumstances and conditions under which the father must be permitted to visit his daughter, but the order appealed from affects each parent's right to visit the child who is in the other parent's custody.

Although the mother, who was living in the District of Columbia with her daughter at the time this matter was heard in the Superior Court, did not challenge subject matter jurisdiction in the court below, and although she affirmatively invoked the Superior Court's jurisdiction by requesting substantive relief in relation to the visitation issues, she now contends on appeal, for the first time since this proceeding was instituted, that the motions Judge was without authority to modify the divorce decree. Specifically, she claims that, under the provisions of the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1991), and the District's Uniform Child Custody Jurisdiction Act (UCCJA), D.C. Code § 16-4501 et seq. (1989), the dispute was within the exclusive jurisdiction of the courts of New York. The mother also complains that the motions Judge failed to make written findings of fact and that his order with respect to the parties' substantive visitation rights and certain other issues constituted an abuse of discretion.

We conclude that the mother has waived the jurisdictional issue, and that her remaining contentions are unpersuasive. Accordingly, we affirm.

I.

THE FACTS

The mother married the father in California in May 1973. Their first child, Joshua, was born in June 1977. In 1980, the parties separated. For the ensuing three years, Joshua lived with his mother. The parties reunited in 1983, and their daughter, Jennifer, was born in February 1984. In February 1986, however, the parties separated once again, this time permanently. The father has since remarried.

The mother obtained a divorce from the father on February 1, 1988, in New York. An agreement which the parties had negotiated shortly after their separation in 1986 was incorporated, but not merged, into the divorce decree.

Under the terms of the separation agreement, Joshua was to live with his father and Jennifer was to live with her mother. The agreement provided that, because the parties were "reluctant to restrict visitation rights to any rigid schedule," visitation was to occur at any time upon which the parties mutually agreed, provided that the visited child's welfare would not be imperiled, nor the normal routine upset. The parties also agreed that the custodial parent would have "day-to-day jurisdiction of the child," but that "all decisions of a substantial nature will be made by mutual agreement if time and circumstances reasonably permit." Finally, the agreement required the mother, an oil company executive, to pay child support to the father in the amount of $400 per month during ten months of the year.

At the time of the divorce, both parties were apparently *fn1 living in New Jersey. In early 1989, the mother moved from New Jersey to New York. In September 1989, the mother was transferred by her employer to Washington, D.C. At the motions hearing, which took place on January 8, 1991, the mother testified that she lived with Jennifer at an address in northwest Washington, D.C., and that "if I get to go back to New York . . . at this point, that is not in the near future." At all relevant times, the father was living with Joshua in Montclair, New Jersey.

Beginning in late 1988, the relationship between the mother and father deteriorated. Shortly before Christmas of that year, the father, apparently annoyed because the mother had made Jennifer available to him two hours late (according to him) or half an hour late (according to the mother), returned his daughter to the mother at about 8:30 p.m. instead of 4:30 p.m. The mother, frantic with worry, called the police and left "numerous" messages on the father's answering service. The father's response to the situation was not especially considerate, *fn2 and the mother was understandably very upset.

During the summer of 1990, Joshua was diagnosed as having a large malignant tumor in the area of his jaw. Fortunately, it was subsequently discovered that the tumor was in fact benign. During the youngster's illness, the father made a number of treatment decisions without consulting the mother. In addition, he did not advise the mother that Joshua had undergone reconstructive surgery until after the fact. The father also professed not to recall whether he had discussed with the mother the question whether Joshua should be told of his condition, nor did he remember whether he had told the mother after the fact that he had made this information known to their son. Unsurprisingly, these events were also quite distressing to the mother. *fn3

As a result of these and perhaps other incidents, the mother restricted the father's contact with Jennifer, and did not permit overnight visitation; the father apparently interposed difficulties in relation to the mother's visits to Joshua. The mother also stopped making her child support payments and, by the time of the January 1991 hearing, the mother had developed ...


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