Before Farrell and Ruiz, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Zinora Mitchell-Rankin, Trial Judge)
In this appeal, Jennifer Johnson seeks reversal of the trial court's award of primary residential custody of her daughter, K., to K.'s father, Keith Washington. Johnson asserts that the court improperly based its custodial decision solely on a desire to avoid further discontinuity in K.'s living environment by leaving her in Washington's physical custody, a situation which had been created when the trial court, because of docket congestion, continued the trial and failed to entertain Johnson's pre-trial motions for pendente lite support due to docket pressures. Although we determine that the trial court erred in deferring consideration for pendente lite support, we affirm the trial court's grant of physical custody to Washington, concluding that the record supports the trial court's determination that primary residential custody with Washington was in the best interest of the child.
Appellee, Keith Washington, brought this action seeking sole physical and legal custody of the parties' minor daughter, K. Appellant, Jennifer Johnson, counterclaimed, also requesting sole physical and legal custody of K., in addition to permanent child support for K. pursuant to D.C. Code § 16-916 (c) (1997).
K. was born on February 4, 1996, and initially lived with both parents, who have never been married to one another, in Washington's home, which he shared with his mother, his aunt, his maternal grandmother, and others. Johnson lived with K. and Washington until mid-December, 1996, when she was forced out because she and Washington's aunt did not get along. Although Johnson at first took K. with her when she moved out to live with her sister, she returned K. to Washington's custody three days later, on December 16, 1996, after realizing that her sister's one-bedroom apartment was too small to share among her sister, her sister's boyfriend, their baby, Johnson and K. Two months later, however, Johnson took K. back after she had saved enough money to afford her own apartment. *fn1
On February 28, 1997, Washington filed a complaint for custody of K. Johnson filed an amended answer and counterclaim seeking custody of K. and child support from Washington on March 27, 1997. *fn2 While the matter was pending a trial date, Johnson filed a separate motion for pendente lite custody and support of K. on April 11, 1997. In her motion, Johnson alleged that Washington had failed to provide support for K. as required by D.C. Code § 16-916 (c), other than medical coverage for K. under his insurance policy. *fn3 On April 15, 1997, the trial court issued an order scheduling a hearing on the pendente lite motion for May 30, 1997. One week later, on April 22, 1997, the court set a trial date on the custody determination for July 10, 1997.
As a result of a congested docket, the trial court was unable to entertain Johnson's pendente lite motion on May 30, 1997, as scheduled; nor did it reschedule the hearing as there were no dates available before the July 10 trial date. Subsequently, however, on its own motion, the court continued the trial to October 6, 1997, again because of its overloaded docket. The postponement of the trial date, as well as difficulties obtaining necessary discovery materials from Washington, caused Johnson to file a combined motion in limine, or in the alternative, to compel discovery, *fn4 and emergency motion for pendente lite support on July 14, 1997. In her emergency motion for pendente lite support, Johnson explained her need for the requested relief:
Ms. Johnson is faced with a Hobson's choice in this case. Ms. Johnson can go to trial in this case despite Mr. Washington's failure to provide the full and fair discovery necessary to her undersigned counsel being able to properly prepare her case. Alternatively, she can seek to have the Court compel discovery and continue the instant action. However, given the Court's inability to hear her motion for support pendente lite, and due to the fact that Mr. Washington is currently providing no financial support for the needs of [K.], Ms. Johnson and [K.] would be subject to significant financial hardship between now and the time the case could be eventually recalled. The instant motion seeks to have the Court provide a remedy that would avoid Ms. Johnson having to make the untenable choice set forth above.
Attached to the motion was a calculation of the support which Washington was obligated to pay under the Child Support Guidelines, pursuant to D.C. Code § 16-916.1. *fn5 Given the information in the record, Johnson requested that the trial court "quickly and affirmatively rule on her urgent request for assistance with the expenses of providing for the needs of [K.]," and further stated: "The parties have disclosed, and the Court has before it, all the materials necessary to grant Ms. Johnson's request for support."
Despite Johnson's invitation to the court to decide the temporary support issue on the papers, *fn6 the trial court on July 22, 1997, struck through the portion of Johnson's proposed order pertaining to the support request, instead ordering the parties to submit to mediation on the support issue, *fn7 while granting Johnson's motion to compel discovery. In a handwritten addition to the order, the court wrote: "It should be noted that the court's calendar cannot accommodate a pendente lite hearing prior to the scheduled trial date." *fn8 In early September 1997, after being unable to stay afloat financially, *fn9 Johnson was forced to give up custody of K. and returned her to Washington's custody pending the trial. *fn10
On October 6, 1997, after hearing testimony from both Johnson and Washington, as well as from Washington's mother and grandmother, the trial court determined that both Johnson and Washington were fit and proper parents and awarded them joint legal custody. The court then awarded primary physical custody to Washington, with visitation rights for Johnson every other weekend, during Christmas and spring breaks, and thirty days during the summer. *fn11 Johnson was further ordered to pay $50 a month in child support to Washington. In its written order detailing the custody arrangements, the court indicated that it had made its custody determination in the belief:
6. That both of the parties love the minor child and both are good parents who have the best ...