Appeal from the Superior Court of the District of Columbia. (DR-3074-93). (Hon. Mary Ellen Abrecht, Trial Judge).
The opinion of the court was delivered by: Terry, Associate Judge
Submitted February 10, 2005
Before WASHINGTON, Chief Judge, and TERRY and WAGNER, Associate Judges.*fn1
This is an appeal from a trial court order imposing restrictions on appellant's right to visit his daughter and awarding attorney's fees to the daughter's mother. Appellant presents various challenges to that order; we find them all without merit and, accordingly, affirm the order in its entirety.
Devon Stewart was born on January 30, 1987, to appellee Alexandra Stewart. A paternity test established that appellant Roger Maybin was Devon's father.*fn2 Mr. Maybin had no contact with either Ms. Stewart or Devon until almost seven years later when, on November 30, 1993, he filed a "Complaint for Joint Custody." When Mr. Maybin also filed a motion for visitation, the trial court ordered a home study of his residence, along with mental health evaluations of Mr. Maybin, Ms. Stewart, and Devon. The evaluations were performed in June and July 1994. After they were completed, a psychiatrist concluded that Ms. Stewart should retain sole custody of Devon, and strongly recommended that any father-daughter visits be supervised "until maybe one or two years have passed and Devon can feel some degree of comfort with Mr. Maybin." Thereafter Mr. Maybin had supervised visits with his daughter on several occasions.
On October 27, 1994, the trial court entered a consent order setting certain guidelines for visitation between Mr. Maybin and Devon. The order provided that Mr. Maybin, Ms. Stewart, and Devon should see a family therapist in order to establish a "satisfactory relationship" between father and daughter and to reduce the tension between Mr. Maybin and Ms. Stewart, and directed that the therapy should continue until the therapist determined it was no longer necessary. It further stated that "[v]isitation may be expanded, and become unsupervised, when the therapist indicates such a change is appropriate."
The parties disagree as to what happened next. Mr. Maybin asserts that Ms. Stewart essentially prevented him from seeing or talking to his daughter, though he was able to see her at least once after the order was entered. Ms. Stewart maintains that she did not bar contact between the two. In any event, Mr. Maybin ceased his attempts to visit his daughter in early 1995. He did not renew those attempts until June of 1998, when he filed a "Motion to Enforce Consent Decree for Visitation and to Expand Visitation Order." Ms. Stewart opposed the motion, and a hearing was held*fn3 on May 18 and 26, 1999.*fn4 At the close of the hearing, the trial court entered an order denying appellant's motion. The order directed that all parties see a therapist before visitation resumed, and further provided that once visitation was reinstated, it would be supervised. The court also awarded attorney's fees to Ms. Stewart in the amount of $1,600. Appellant filed a timely notice of appeal.
Appellant argues that "the trial court abused its discretion when it ruled that [he] could only exercise his 'supervised' visitation rights if he submitted to counseling . . . ." He maintains that the initial 1994 order required counseling only for unsupervised visits, and that, absent a material change in circumstances, the trial court should not have required counseling for supervised visitation when the matter was reconsidered in 1999.
"The right of visitation is an important, natural and legal right, although it is not an absolute right, but one which must yield to the good of the child." Sampson v. Johnson, 846 A.2d 278, 286 (D.C. 2004) (citation omitted). We will reverse a trial court's ruling on the subject of visitation only for a clear abuse of discretion. Lewis v. Lewis, 637 A.2d 70, 72 (D.C. 1994). "A proper exercise of discretion requires that a court 'fashion relief to foster and safeguard [the] child's best interests.' " Hamel v. Hamel, 489 A.2d 471, 475 (D.C. 1985) (citations omitted).
We are satisfied that the trial court did not abuse its discretion when it required the parties to attend counseling sessions before further visits could take place. While it is true that a party who seeks to modify a custody order must demonstrate "that there has been a substantial and material change in circumstances and that such modification . . . is in the best interest of the child," D.C. Code § 16-911 (a-2)(4)(A) (2001), that principle does not apply here because there was no modification in this case. The court's 1999 order cannot be regarded as a modification of the original 1994 order;*fn5 rather, it temporarily suspended any supervised visits until the therapist could meet with Mr. Maybin and his daughter to prepare them for reinstatement of visitation.
It is undisputed that Mr. Maybin stopped visiting and calling his daughter in January of 1995. More than three years went by before he asked the court to "enforce" and "expand" the original 1994 visitation order. At the hearing on Mr. Maybin's motion, his daughter - then twelve years of age - testified: "[B]asically he's a stranger to me. I don't know him. And I don't - I already have people taking me places. It's all arranged. We're fine and we don't need anyone else." She continued: "[H]e's not a person that I would like to get to know because he had visitation - well, yeah, he had visitation, and he stopped that without any explanation at all. . . . He didn't want me. If you don't want me, I don't want you."
In these circumstances, we cannot agree with Mr. Maybin that it was an abuse of discretion for the trial court to determine, after hearing evidence from all parties (including the child), that simply resuming visitation as if there had not been a three-year gap in the father-daughter relationship would be detrimental to Devon's best interests. Moreover, the court acted with appropriate caution when it required that the parties submit to counseling before resuming any kind of visitation. See Surrey v. Surrey, 144 A.2d 421, 424 (D.C. 1958) (decision to order a party to submit to a mental or physical examination is discretionary). Mr. Maybin was not denied the right to visit his child. The court was merely considering Devon's best interests, as it was obliged to do, when it placed conditions on the visitation. We ...