Appeal from the Superior Court of the District of Columbia (02-DRB-421) (Hon. Kaye K. Christian, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before REID and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR, Senior Judge.
In this dispute over child custody and corresponding child support obligations, William A. Wilson III appeals from a trial court judgment in favor of his former spouse, Francesca V. Craig. Mr. Wilson asserts that the trial court erred (1) in modifying the settlement agreement ("Agreement") by awarding sole legal and physical child custody to Ms. Craig; (2) by modifying, sua sponte, his child support obligation and overstating his ability to pay the increased obligation; (3) by awarding retroactive child support without a petition by Ms. Craig seeking a change in the child support amount; and (4) in holding Mr. Wilson in contempt of court for failing to timely pay retroactive child support. We affirm in part, and reverse and remand in part.
William A. Wilson III and Francesca Craig were married on September 14, 1985 in Newport, Rhode Island. During their marriage, they had four children, three of whom were still minors during the time of this litigation. Their divorce was finalized in April 2003.The day before the divorce judgment was entered, they reached an Agreement. The Agreement, which was incorporated by reference but not merged into the divorce judgment, addresses property distribution, child custody, and child support.
The terms of the Agreement stated that the parties would have joint legal and physical custody and adhere to a timeshare schedule where the amount of time that the three youngest children resided with Mr. Wilson would over the course of 18 months, gradually increase to an equal, alternating-week schedule. It further required him to pay $6,000 per month in child support, plus school tuition, medical insurance and dental costs, and to maintain a life insurance policy for $1 million dollars. Ms. Craig was required to pay the children's un-reimbursed mental health care costs and the first $1,500 of un-reimbursed medical expenses.
Modification of the Custody Agreement
On February 20, 2004, Ms. Craig filed a Motion to Modify the Custody Agreement and Related Relief. In the petition,Ms. Craig alleged that (1) the Agreement "fail[ed] to provide the parenting coordinator with any explicit authority to investigate problems arising between the parties and provide meaningful recommendations to the parties so they may work toward effective co-parenting," and (2) "[t]he alternating weekly schedule [was] developmentally inappropriate for most children and especially these children given the [ ] intractable conflict between the parties." Ms. Craig specifically requested that the court appoint a Special Master pendente lite and hold an evidentiary hearing to help determine what residential schedule and legal custodial arrangement would best serve the children.Following an evidentiary hearing in May 2004, the trial judge found "that the behavior of the three younger children indicated that they were experiencing psychological and emotional distress, which plainly was not in their best interests, and which appeared to be increasing rather than abating," and that Ms. Craig had made a credible preliminary showing of a "substantial and material change in the children's circumstance[s]." The judge also concluded that a forensic evaluator should make recommendations to the court regarding the feasibility of joint custody and the role of a parenting coordinator in the case, and appointed Dr. Bruce Copeland. Dr. Copeland had repeated meetings with the parents and children, as well as numerous other witnesses in a position to observe the family relationship, and drafted a 117 page forensic report. At the hearing scheduled for him to present his report to the trial court, Dr. Copeland testified that "continuing the [ ] joint custody agreement was not a workable recommendation based on the high conflict between the parents" and "excessive levels of discord" in the case. In his report, Dr. Copeland found that the children had "discernible, definable, diagnosable conditions which . . . [made] it more difficult for them to cope with the added number of changes, transitions, and stresses inherent in living in two separate environments," noting that the children's teachers reported an increase in problems in school on Monday mornings, the day when two of the children transitioned from one household to another. He concluded that "[f]orcing a shared arrangement under these conditions" was "associated with risk and poor childhood outcome," and that concerning the possible expanded role of the parenting coordinator, Mr. Wilson was "the primary impediment to a parent coordinator['s ability] to force a timely dialogue and resolve disputes if needed."
In her comprehensive written Findings of Fact, Conclusions of Law and Judgment of Custody, the trial judge found Dr. Copeland's report and testimony about the increased hostility persuasive, and granted sole legal and physical custody of the three minor children to Ms. Craig, allowing Mr. Wilson visitation rights on alternating weekends.This resulted in Ms. Craig having custody of the oldest child for an additional 87 days a year (almost three months) and of the two younger children for an additional 48 days a year (about 1.5 months), with a resulting increase in expenses for the mother.
Modification of the Child Support Agreement
In light of the new custody arrangement, the judge ordered the parties to attempt to negotiate a new child support agreement by May 20, 2005.When the parties failed to reach an agreement by that date, the judge held an additional evidentiary hearing in July and August of 2005 on the issue of child support. In the written Memorandum Order of Findings of Fact, Conclusions of Law and Judgment of Child Support, the trial judge found as follows.
Ms. Craig was employed by the Cordell Hull Institute at an annual salary of $30,000.00. Combined, Ms. Craig's and the minor children's monthly expenses were approximately $12,655. At the time of the Agreement, Mr. Wilson had been a partner with the law firm of Wilmer Cutler Pickering Hale and Dorr LLP ("Wilmer Hale") earning a salary of as much as $700,000 per year.At the time of the hearing, Mr. Wilson was self- employed with Wilson International Law LLC, where he claimed to earn a salary of $240,000, but the judge found that he "ha[d] the potential and ability to earn much more than he claim[ed]." Taking that fact into account, the judge determined that Mr. Wilson's adjusted income was $398,966. Applying the District of Columbia Child Support Guidelines, the judge found that he was required to make a monthly child support payment of $12,617.
The judge found this substantial increase over the Agreement amount necessary in part due to the change from joint custody to Ms. Craig having sole custody, which the judge found had "created a material change in circumstances that was unforseen at the time the agreement was entered."*fn1 Moreover, pursuant to the parties' Agreement, the judge made the increase in support retroactive "to the date of the written request for modification," which the judge construed here to mean the June 4, 2006 Order she had issued requiring the parties to attempt to negotiate a new support arrangement. When Mr. Wilson failed to pay the retroactive child support as required, the judge held him in civil contempt.*fn2 Mr. Wilson argued that he was unable to pay the retroactive support; however, the judge was not persuaded, noting that his IRA account had a net ...