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Foster-Gross v. Puente

March 30, 1995


Appeal from the Superior Court of the District of Columbia. (Hon. Henry F. Greene, Trial Judge).

Before Wagner, Chief Judge,* and Ferren, Associate Judge, and Kern, Senior Judge.**

The opinion of the court was delivered by: Wagner

WAGNER, Chief Judge: Appellant, Donald Foster-Gross, seeks review of two orders of the trial court modifying custody and child support provisions of the parties' separation agreement, which was incorporated, but not merged into their divorce decree. Foster-Gross argues that the trial court erred in failing to make written findings of fact and separate Conclusions of law as required by Super. Ct. Dom. Rel. R. 52 (a) (1994). He also argues for reversal on the following grounds: (1) the trial court ordered a change of residential custody without any showing of a substantial and material change of circumstances affecting the best interest of the children which was unforeseeable at the time that the parties entered the agreement; (2) the trial court predicated its order for child support on the invalid custody order; (3) even assuming the validity of the modified custody provision, the court erred in applying the Child Support Guideline; and (4) the support order was entered without providing appellant adequate notice and an opportunity to present evidence. We conclude that the trial court's failure to make written findings of fact and Conclusions of law for both orders as well as its application of an improper standard in determining a change of custody require reversal and remand for further proceedings consistent with this opinion.


Appellee, Oralia Puente, filed a motion to modify custodial/residential arrangements for the parties' minor children. She requested that the parties' separation agreement be modified because of an alleged change in circumstances, substantial and material to the best interest of the children, which was unforeseen at the time of the making of the agreement. Foster-Gross opposed the motion.

The parties were granted an absolute divorce on October 24, 1989. They are the parents of two minor children, Joaquin, born February 27, 1977, and Sarah, born August 6, 1984. Prior to the divorce, the parties entered a voluntary separation and property settlement agreement which resolved all issues of custody, support, property rights and other claims arising out of their marriage. *fn1 The agreement was incorporated, but not merged, into the divorce decree. The agreement provided for the parties to share joint legal custody of the minor children and for the children to reside with each parent for equal periods of time. The parties agreed to the following provisions for the support of the children:

As long as the parties' salaries are comparable, each parent shall be solely responsible for providing the minor children with food, shelter, utilities and transportation while they are living with that parent.

For purposes of this Agreement, the parties agree that their salaries are comparable if their gross incomes from employment do not vary by more than $20,000. Provided, however, salaries shall not be deemed comparable if one spouse's income from employment involuntarily decreases to less than $30,000 because of illness, reduction in force, or other circumstances beyond his or her control.

The agreement further provided for modification under the following described circumstances:

In the event the parties' gross incomes are not comparable, there is a substantial change in the financial circumstances of one party, or one party has an overseas assignment or moves from the area, they agree to renegotiate child support pursuant to the provisions in Paragraph VI.9 herein. *fn2

Foster-Gross was a career U.S. Foreign Service officer at the time the parties executed the agreement. They anticipated that he would be assigned to duty overseas. Therefore, the parties included in the agreement a provision for the children's residence in that event. In that connection, the agreement provided:

Commencing in the summer of 1992, if [Foster-Gross] is already posted overseas or scheduled for an overseas post in the fall of 1992, the parties agree on the following living arrangements for Joaquin and Sarah; provided, however, for the children to live at any overseas post with as provided below, the post must not be politically or medically dangerous (that there be a "sanitary" hospital or facility in the city of posting) and whenever appropriate for Joaquin or Sarah the post must have an accredited (by U.S. standards) high school. *fn3

In a letter dated November 22, 1991, Foster-Gross informed Puente that he would not be posted overseas until after the summer of 1993. However, some six months later, on May 22, 1992, Foster-Gross formally informed Puente that he had been assigned to an overseas post in Swaziland and that he intended to take the children with him in August of that year. Prior to that time, Puente had on May 6, 1992, sent Foster-Gross a letter requesting that they meet with a family therapist to discuss the "needs and stability of the children." Puente indicated that she had a therapist in mind, but she was open to other suggestions. She also stated that she did not want to take the matter to court. Foster-Gross declined to participate.

Because both children had expressed a desire not to move to Swaziland, and believing that Sarah had special needs, Puente sent another letter to Foster-Gross on May 31, 1992, proposing that they have the children seen by a Dr. Kathryne Jacobs for evaluation and a determination of whether the proposed move was in the children's best interest. Although Foster-Gross objected, Puente had the children seen by Dr. Jacobs. According to Puente, she notified appellant that Dr. Jacobs found it to be in the ...

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