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Elena L. Jordan v. David A. Jordan

March 10, 2011


Appeals from the Superior Court of the District of Columbia DRB2936-08Hon. Hiram Puig-Lugo, Trial Judge

The opinion of the court was delivered by: Pan, Associate Judge

Argued November 12, 2010

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PAN, Associate Judge, Superior Court of the District of Columbia.*fn1

After an 11-year marriage, appellant Elena L. Jordan and appellee David A. Jordan divorced in May 2009. These consolidated appeals arise from the ensuing proceedings to determine custody arrangements for the parties' two daughters. Following a highly contentious custody trial that spanned nine days in July and August of 2009, the trial court awarded joint legal and physical custody to Ms. Jordan and Mr. Jordan. Because the parties were unable to reach decisions together amicably, the trial court appointed a "parenting coordinator" to mediate and resolve any disputes concerning the children. Ms. Jordan appeals both the award of joint custody and the appointment of the parenting coordinator. She argues that the trial court did not adequately consider allegations and findings of domestic violence when it granted joint custody to Mr. Jordan, and that the trial court did not have authority to appoint a parenting coordinator over her objection. For the reasons discussed infra, we affirm the judgment of the trial court with respect to the award of joint custody and the appointment of a parenting coordinator.

I. Background

Ms. Jordan and Mr. Jordan met while they were both graduate students at Vanderbilt University in Tennessee. They were married in 1997 in Russia, relocated to Maryland in 1999, and have resided in the District of Columbia since 2001. Both are employed professionals with masters degrees in business, and each has substantial income that is roughly equal to the other's. The parties have two daughters: E.J., who is now 12 years old; and A.J., who is now five years old.

The trial court characterized the parties' marriage as "fraught with conflict." Nevertheless, during the marriage, "[t]he relationships between the girls and both parents were normal and equal." On August 12, 2008, Mr. Jordan asked for a divorce, and he moved out of the family's home about two weeks later. Thereafter, on September 29, 2008, Mr. Jordan agreed to a consent civil protection order without admissions, under which he was required to stay away from Ms. Jordan.

After the parties separated, E.J. and A.J. resided with Ms. Jordan and had visits with Mr. Jordan. As the dissolution of the marriage devolved into "a high conflict situation," the relationship between Mr. Jordan and his daughters deteriorated. Due to the proceedings related to the civil protection order, Mr. Jordan did not see the children for approximately three weeks. Subsequently, during the girls' first overnight visit with Mr. Jordan on October 3, 2008, E.J. contacted Ms. Jordan to complain that Mr. Jordan had shaken her. Ms. Jordan called the police and a child-abuse hotline, and went to Mr. Jordan's residence. The police did not arrest Mr. Jordan and allowed the children to remain with him. A social worker from Child Protective Services investigated the incident. She concluded that E.J.'s allegations were "unfounded" and that E.J. appeared "to be coached or otherwise influenced."

Thereafter, interactions between E.J. and Mr. Jordan were strained. E.J. developed "an unhealthy enmeshment" with her mother and was unable to distinguish her own needs from those of Ms. Jordan. E.J. was privy to adult information about the relationship between her parents, how her father behaved, and how her mother felt about the situation. Meanwhile, Ms. Jordan did not understand how her actions affected E.J. As a result, E.J.'s perceptions of Mr. Jordan became distorted, and she became "alienated" from her father. She "challenge[d] and degrade[d]" Mr. Jordan during visits, asserted that she wanted no contact with him, and refused to speak to him during court-ordered reunification therapy.

E.J pressured A.J. to treat Mr. Jordan the same way, and "glare[d]" at A.J. if she did not comply. A.J. was confused. She wanted to spend time with her father, but she sought E.J.'s approval. When A.J. was alone with Mr. Jordan, she was "loving and affectionate" with him; but she copied E.J.'s behavior when E.J. was present. A.J. became "trapped" by the conflicting signals sent by her family members. She manifested speech problems and a delay in learning the English language.*fn2

During the pendency of the proceedings in the trial court, the court implemented a visitation plan under which the girls had overnight visits with Mr. Jordan every other weekend and regular contact with him during the week. E.J. spent much of her time during the visits with her father sending text messages to Ms. Jordan and refusing to engage with Mr. Jordan. A.J. parroted E.J.'s behavior. When the court adjusted the schedule to allow each girl to spend time alone with Mr. Jordan, A.J. had successful overnight visits with Mr. Jordan, but E.J.'s contact with Mr. Jordan dwindled to one therapy session and one additional encounter per week. For her part, Ms. Jordan was unable to support the goal of reunification for E.J. and Mr. Jordan; and Ms. Jordan tried to "fire" the reunification therapist who was working with them.*fn3

During the custody trial, the court heard testimony about "several violent episodes." The court found that during two of these episodes, Mr. Jordan committed intrafamily offenses under D.C. Code § 16-1001(8) (2001).*fn4 The first intrafamily offense occurred in July 2005, when the parties got into an argument over some chicken that Mr. Jordan had picked up for dinner. Mr. Jordan "lost his temper, grabbed [Ms. Jordan's] upper arms and shook her . . . us[ing] enough pressure to bruise her right triceps." The second offense occurred on August 3, 2008, during an argument about cleaning the kitchen. Mr. Jordan "put a dish towel around the back of [Ms. Jordan's] neck while the parties argued face to face." The trial court acknowledged that it had heard testimony about other "incidents where [Mr. Jordan had] lost his temper" but found that those incidents "do not fall within the definition of domestic violence in the District of Columbia."

Other evidence in the record provided additional information about the instances of violence. Dr. William B. Zuckerman, a licensed clinical psychologist, was appointed by the court to conduct a custody evaluation.*fn5 Dr. Zuckerman opined that the type of domestic violence perpetrated by Mr. Jordan was "situational"; that the incidents were "the type of interparental conflict that sometimes occurs amidst the intense emotion accompanying family dissolution"; and that the prior actions were not a predictor of future violence by Mr. Jordan. Dr. Zuckerman characterized Mr. Jordan's behavior as domestic "violence with a small v"; and asserted that "there is nothing in Mr. Jordan's history or test material which would suggest that he is any more likely than most to be a danger to others, nor is he likely to be inordinately neglectful."Furthermore, Dr. Zuckerman commented that "whatever shortcoming existed in Mr. Jordan's ability to parent . . . , his warm and positive qualities predominate, and by all accounts, until the separation, he enjoyed a reasonable relationship with both daughters."

Dr. Zuckerman also reported that he had solicited input from Dr. Ruth Zitner, the psychologist who had engaged in family-reunification therapy with Mr. Jordan and E.J. Dr. Zitner had opined that "[r]ather than presenting as abusive . . . [Mr. Jordan] . . . seem[ed] . . . quite passive"; and that Mr. Jordan did "not [give] any impression whatsoever that he could have behaved in a way that has been seriously threatening to either [Ms.] Jordan or [E.J.]." At trial, Dr. Zitner testified that the parties "had some discrete episodes where they fought and did get physical, but that this was not a family in which there was domestic violence." Other mental-health professionals consulted by Dr. Zuckerman also agreed that Mr. Jordan did not pose a danger to Ms. Jordan or his daughters: (1) Dr. Yulia Aleshina, a clinical psychologist who had treated E.J., stated that she did not feel that Mr. Jordan "is in any way dangerous to his daughter"; (2) Jonah Green, a social worker who had worked with the parties as a "reunification therapist," stated that he "did not view Mr. Jordan as a dangerous individual";and (3) Dr. Martha Gibbons, a clinical psychologist who saw Mr. Jordan in individual therapy, stated that she "did not notice anything that would be suggestive of difficulty managing impulses or anger," and that Mr. Jordan actually "can sometimes be too passive in the pursuit of his goals."

Ultimately, Dr. Zuckerman found both parents to be fit and recommended joint legal and physical custody of the children.*fn6 Dr. Zuckerman stressed that the children need "to have positive connections with both parents and to be protected from conflict in the post divorce period." He further emphasized that it is "strongly in E.J.'s best interests to redevelop a good relationship with her father." To facilitate the joint-custody arrangement, Dr. Zuckerman recommended the appointment of a "parenting coordinator." He noted that the parties would need to make significant changes in their attitudes to promote the children's interests, and that the "most important developments" would center around Ms. Jordan, in helping her to normalize E.J.'s relationship with Mr. Jordan. Dr. Zuckerman contemplated that the parenting coordinator would work with the parties "[to create] a plan that would promote the relationships between Mr. Jordan and [his] daughters"; and that the parenting coordinator "should be endowed with authority to speed up or slow down the progress."

On August 21, 2009, the trial court issued its order awarding joint legal and physical custody to the parties. The court recognized that the separation and divorce had caused "great pain" for the entire family; that the children were "under great stress"; and that "[t]he current situation portends to result in serious emotional consequences for [E.J.] and [A.J.]." Acknowledging that its findings that Mr. Jordan had committed two intrafamily offenses against Ms. Jordan gave rise to a rebuttable presumption against awarding custody to Mr. Jordan, under D.C. Code § 16-914(a)(2),*fn7 the court nevertheless determined that the presumption was rebutted. In so finding, the court noted that E.J. is alienated from Mr. Jordan; that A.J. is in danger of becoming alienated; and that "this alienation portends serious emotional damage for both children." The court emphasized that the children's alienation from Mr. Jordan could "interfere with their emotional development, . . . restrict their ability to develop healthy attachments in the future, . . . affect their self-esteem and how they relate to the world around them, . . . [and] increase the possibility of mental health issues." The court then considered seventeen factors relevant to determining the best interest of a child, as enumerated in D.C. Code § 16-914(a)(3).*fn8 One of the factors that the court explicitly discussed was "evidence of an intrafamily offense." The court acknowledged that such evidence was in the record, and stated, "[t]here is also evidence to rebut the presumption against joint legal custody as a result of that intra-family violence."

The court's findings in the August 21, 2009, custody order were buttressed by the trial judge's comments at the close of the trial on August 6, 2009. On that day, the court heard closing arguments and made preliminary rulings from the bench. At that point, the trial judge stated:

In deciding whether [the presumption against joint custody] has been rebutted, I look at [the] totality of the circumstances surrounding the situation. I consider the testimony of the witnesses, the contents of the exhibits, and the information set forth in the report that has been admitted. I do find that the presumption has been rebutted because the situation here for these two girls, with things being as they are and the, frankly, emotional damage that they are suffering, combined with the efforts that Mr. Jordan has taken to rectify the conduct that led to that inappropriate behavior on his part -- and let there be no doubt that it was inappropriate -- rebuts the presumption . . . .

The court's order granting joint custody to the parties was "subject to" detailed provisions regarding therapy, schooling, and the apportionment of various expenses. In addition, the court found that the parties "are not able to reach joint decisions regarding the children," and thus required the parties to "use a Parenting Coordinator to assist them in making parenting decisions." The order provided that "[w]hen the parties are unable to reach a joint decision, the Parenting Coordinator will make the final determination on any issue"; and that "[t]he Parenting Coordinator will have the discretion to delegate tie-breaking authority on any issue to either parent." The order further provided that the parties would share the cost of the parenting coordinator; but if Ms. Jordan were unable to pay her share, Mr. Jordan would pay it for her and offset that cost against Ms. Jordan's monthly child-support payments. With respect to visitation, the court's order specified that E.J. would see Mr. Jordan twice a week, including one session of family-reunification therapy, with visits to "increase at the discretion of the Parenting Coordinator in consultation with the therapist providing family reunification therapy for [E.J.] and [Mr. Jordan]." A.J. was to eventually transition to a "5:2/2:5" format, in which she would spend every Monday and Tuesday with Ms. Jordan and every Wednesday and Thursday with Mr. Jordan and would alternate weekends with each party.

Ms. Jordan filed a motion for reconsideration of the custody order on September 9, 2009, which the trial court denied. Ms. Jordan promptly filed notices of appeal for both the custody order and the denial of her motion to reconsider. Her appeals related to the custody order do not include any challenge to the appointment of a parenting coordinator.

On October 7, 2009, Mr. Jordan filed a Motion to Enforce Judgment for Contempt and Other Relief, which asserted that Ms. Jordan had stated that she would "not select or use a Parenting Coordinator," in defiance of the trial court's custody order. Mr. Jordan asked for the court either to hold Ms. Jordan in contempt, to enjoin her from refusing to select a parenting coordinator, or to appoint one of three individuals suggested by Mr. Jordan's counsel. Ms. Jordan filed a pro se opposition to Mr. Jordan's motion on October 21, 2009, in which she disputed some of the factual allegations, proffered additional facts, and requested an evidentiary hearing.

At a hearing on December 29, 2009, Ms. Jordan questioned the court's authority to appoint a parenting coordinator. She also objected to the court's order that she either pay for half the costs of the parenting coordinator or have the expenses deducted from her child-support payments. After concluding the hearing, the trial court issued two orders. The first appointed Ms. Roberta Eisen as the parties' parenting coordinator. The second order, entitled "Order Appointing Special Master," was submitted for the court's signature by Mr. Jordan's counsel, who explained that it was a form order that Ms. Eisen had provided for the court to use if she were appointed. This form order, hereinafter referred to as the "Special Master Order," contained the substantive provisions at issue in this appeal.

The Special Master Order appoints Ms. Eisen, a licensed professional counselor with extensive experience in the field, as "the Parent Coordinator/Special Master," and does so "[p]ursuant to Super. Ct. Dom. Rel. R. 53." The order describes the parenting coordinator as a "quasi-judicial officer," who "shall assist the parties in making parenting decisions for their children," and shall "develop . . . a comprehensive parenting plan . . . including . . . a child-centered decision-making process that will enable the parties to make joint decisions." The order further provides that "[w]hen the parties are unable to make a joint decision, the Special Master shall make the final determination on any issue." The order permits the parenting coordinator to "make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine[] fundamental issues of custody and visitation."Moreover, it provides that "[n]othing in this order shall be construed to be or confer on the Special Master the right or obligation to conduct a custody evaluation . . . [or] to make decisions that conflict with the parties' rights to make decisions regarding the children's religion or the children's observation of religious requirements."

The Special Master Order lists eleven categories of "day-to-day" issues, including logistical problems related to the residential custody schedule, clothing, and recreation.*fn9 The order states that, "in the event of a dispute between the parties," the parenting coordinator "may make decisions" regarding these "day-to-day issues," and that the parenting coordinator "shall reduce any such decisions to writing." The order further states that "[e]ach party specifically agrees that decisions of the Special Master . . . are effective as if they were court orders . . . and [that they] will continue in full force and effect ...

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