Appeals from the Superior Court of the District of Columbia (DR-166-02) Hon. Judith Bartnoff, Trial Judge.
The opinion of the court was delivered by: Terry, Senior Judge
Before FARRELL, Associate Judge, and TERRY and SCHWELB, Senior Judges.*fn1
These consolidated appeals arise from the trial court's denial of appellant's "Motion to Compel [Appellee's] Compliance with Custody Agreement" without first conducting an evidentiary hearing, and from the court's subsequent denial of appellant's "Motion for Disqualification of [Counsel]" as moot. We affirm both rulings.
A. The Custody Agreement and Family Therapy
The primary issue in this case involves the parties' course of action with regard to family therapy. Appellant Christine Rales and appellee Steven Rales, who were divorced in early 2003, executed a custody agreement on March 5 of that year. This agreement, which awards sole legal custody of the couple's three children to Mr. Rales, provides in pertinent part:
The Parties will engage with the Children in family therapy for at least one (1) year following the execution of this Agreement, or until family therapy is no longer recommended by Dr. Steven Wolin or his successor (the "Family Therapist"). Both parties agree to cooperate in good faith in family therapy and Steve [Rales] will not arbitrarily terminate Dr. Wolin as the Family Therapist for so long as family therapy is needed. The Parties will utilize family therapy for, among other things, attempting to establish consistency between the parties' households . . . attempting to resolve conflicts relating to the Children and such other matters as the therapist deems appropriate. The parties had in fact begun therapy with Dr. Wolin a month before the custody agreement was signed.*fn2 As early as April of 2003, however, Mr. Rales expressed frustration with Dr. Wolin's approach. Dr. Wolin then asked Mr. Rales to "give the process at least eight more sessions." Mr. Rales attended significantly more than eight additional sessions, but in a September 2003 e-mail, he again noted his concern "with the direction of [the family therapy] sessions and the potentially negative impact upon the children." On September 15 he sent an e-mail to Dr. Wolin informing him that he had "decided that a change in therapy would be best for [his] family." Mr. Rales wrote that he "had concerns from the outset with both the model and the process [Dr. Wolin] had recommended, but was willing to work with [him] along the lines he suggested."*fn3 After meeting "considerably more than the number of sessions [Dr. Wolin] proposed for assessment," Mr. Rales decided that it was "an appropriate time for a change."*fn4 Mr. Rales notified Mrs. Rales to that effect on September 17, 2003, and sought her help in finding a replacement therapist. Mrs. Rales, however, responded that Mr. Rales' "unilateral decision to terminate Dr. Wolin as the family therapist . . . violates our March 5, 2003 Agreement." Mr. Rales disputed this characterization of his actions and again expressed his desire to obtain a new therapist.*fn5 In November of 2003, Mr. and Mrs.
Rales discussed replacing Dr. Wolin with a therapist named Marianne Walters. Ultimately, however, Mrs. Rales filed a "Motion to Compel [Mr. Rales'] Compliance with Custody Agreement and for Other Relief" on November 26, 2003.*fn6
The parties do not agree on whether family therapy did in fact continue after Mr. Rales terminated the sessions with Dr. Wolin. According to a pleading filed by Mrs. Rales in the trial court, "[s]ince the parties' last meeting with the family therapist on September 3, 2003, there has been no established family therapist in place to assist with the resolution of conflicts with regard to the parties' children, as contemplated under the parties' agreement." Mr. Rales stated in response, however, that "Ms. Marianne Walters has been the successor family therapist to Dr. Wolin," that Mr. Rales, Mrs. Rales, and the children had all met with Ms. Walters, and that "[t]he parties' Custody Agreement is functioning pursuant to its terms with Ms. Walters as the successor therapist."*fn7
B. Counsel's Alleged Conflict of Interest
A second point of contention concerns an alleged conflict of interest involving one of Mr. Rales' attorneys, Sanford Ain. In October of 2002, during the pendency of litigation over custody and other divorce-related matters, another attorney named Rita Bank advised Mrs. Rales' counsel that she planned to form a domestic relations firm with Mr. Ain in early 2003. Mr. Ain was serving, and continued to serve, as Mr. Rales' counsel during the present litigation, and Ms. Bank worked with Mrs. Rales in 2001 when Mrs. Rales needed a domestic relations attorney to represent her in the divorce proceedings.*fn8
Ms. Bank asked Mrs. Rales to consent to her plans to form a partnership with Mr. Ain. However, in a letter to Ms. Bank dated October 29, 2002, counsel on behalf of Mrs. Rales declined to give that consent, citing Mrs. Rales' "considerable concern at any such alliance and its implications, whatever level of protection might be promised." Ms. ...