Appeals from the Superior Court of the District of Columbia (DRB-3179-01) (Hon. Cheryl M. Long, Trial Judge)
(Argued September 23, 2011
Before FISHER, Associate Judge, and STEADMAN and REID, Senior Judges.*fn2 REID, Senior Judge: This case has involved child custody, child support, and parenting litigation in three jurisdictions - the District of Columbia, the State of Indiana, and London, England. The litigation began in the District of Columbia where in 2002, the Superior Court entered a decree of absolute divorce in response to appellant Barbara Kenda's complaint against appellee Boris Pleskovic; the court also determined custody over the couple's minor child, A.P.K., pursuant to the District of Columbia's Uniform Child-Custody Jurisdiction and Enforcement Act ("UCCJEA"). The litigation entered a new phase in 2005, when Ms. Kenda filed a motion in Indiana to alter Mr. Pleskovic's parenting schedule, and Mr. Pleskovic countered by seeking modification of custody. The third phase of the litigation took place in London in 2006, and after a final decision in the Indiana litigation, the fourth phase unfolded in the District of Columbia, in 2007.*fn3
In the matter now before us, Ms. Kenda appeals from the Superior Court of the District of Columbia's denial of two motions she filed relating to (1) the custody of the minor child, and (2) her request that Mr. Pleskovic be required to pay her attorneys' fees. First, she contends that the Superior Court had "'exclusive, continuing jurisdiction' over the custody order" and "[b]ecause there was no evidence that the [Superior Court] had declined jurisdiction, the Indiana trial court was barred from exercising jurisdiction or addressing the custody issues raised in [Mr. Pleskovic's] petition"; and further, she asserts that she "did not waive her jurisdiction argument by filing a petition to modify [Mr. Pleskovic's] parenting time in Indiana." Second, she argues that the Superior Court abused its discretion by denying her request for attorneys' fees after she "largely won the complex and lengthy custody case that lasted from May 2007 to July 2009," and that Mr. Pleskovic "should be ordered to reimburse [her] at least for some of her payments for attorney's fees that total over $80,000."
We hold that Ms. Kenda is judicially estopped from asserting that Indiana lacked jurisdiction over the issue of A.P.K.'s custody because both she and Mr. Pleskovic availed themselves of Indiana's jurisdiction, engaged in substantial litigation, and resolved their London litigation by agreeing "that all matters relating to the welfare of [A.P.K.] are at present vested in the . . . Indiana [court]." We also conclude that the Superior Court did not abuse its discretion by denying Ms. Kenda's request for attorneys' fees.
The record reveals that Ms. Kenda and Mr. Pleskovic are nationals of Slovenia. Mr. Pleskovic is an economist who has been a longstanding employee of the World Bank; he has been a bona fide resident of the District of Columbia.*fn4 Ms. Kenda came to the United States for graduate studies in architecture in the 1990s.*fn5 In August 2000, Ms. Kenda began work as an Assistant Professor at the University of Notre Dame, School of Architecture, in Indiana. Ms. Kenda and Mr. Pleskovic were married in Italy on December 23, 2000. Ms. Kenda continued teaching at Notre Dame. However, in 2001-2002, during academic leave from Notre Dame, she held a senior fellowship from Harvard University, at Dumbarton Oaks in the District of Columbia, before returning to Notre Dame. Ms. Kenda and Mr. Pleskovic never lived together in a marital home.*fn6 Ms. Kenda and Mr. Pleskovic had one child, A.P.K., (born in August 2001).
Ms. Kenda filed a complaint for divorce in the Superior Court of the District of Columbia, and in May 2002, the court entered judgment of absolute divorce. The court also granted Ms. Kenda sole physical custody of A.P.K. and final decision making responsibility relative to all matters affecting the child's welfare. However, the court gave Ms. Kenda and Mr. Pleskovic joint legal custody. Mr. Pleskovic was awarded parenting rights, which he freely exercised until 2005. In August of 2002, Ms. Kenda took A.P.K. to Indiana. Mr. Pleskovic continued to reside in the District, but visited A.P.K. in Indiana. In July 2005, Mr. Pleskovic went on a three-week trip to Slovenia during his parenting time with A.P.K. Upon A.P.K.'s return to Indiana, Ms. Kenda reported that she began to observe unusual behavior in the child and she feared Mr. Pleskovic was abusing A.P.K.
On October 26, 2005, Ms. Kenda filed a motion in the St. Joseph's County Superior Court in Indiana to modify Mr. Pleskovic's parenting time. Ms. Kenda alleged that the Indiana court had subject matter jurisdiction over the case because Indiana was A.P.K.'s home-state, and she and A.P.K. had substantial and significant ties to the state. On November 14, 2005, Mr. Pleskovic responded by filing a petition for modification of custody, parenting time, and child support and he requested custody evaluation. He asserted that Ms. Kenda was negatively influencing A.P.K., in addition to preventing him from exercising his parenting rights.
In February 2006, in the midst of the Indiana litigation, Ms. Kenda accepted a position in London and sought to relocate there with A.P.K. She lodged a notice with the Indiana court of her intent to relocate to London. Mr. Pleskovic opposed the relocation of A.P.K. The Indiana court ordered Ms. Kenda not to remove A.P.K. from the country without a court order. Consequently, Ms. Kenda left the child with a family friend when she journeyed to London in August 2006 to assume her new position. When Mr. Pleskovic filed a pleading in the Indiana court to enforce his parenting rights, the Indiana court ordered parenting time for each parent in Indiana, the District of Columbia, London, and Slovenia. Under this order, A.P.K. eventually journeyed to London to be with his mother during her parenting time. As the date approached for Mr. Pleskovic's parenting time, Ms. Kenda sought a stay of the Indiana court order on September 15, 2006, which the Indiana court denied. In response, Ms. Kenda turned to a court in London five days later, and London's High Court of Justice, Family Division, issued an ex parte order prohibiting Mr. Pleskovic from enforcing the Indiana edict. Mr. Pleskovic submitted an emergency pleading to the Indiana court for change of custody, and that court awarded him temporary legal and physical custody of A.P.K., with parenting time for Ms. Kenda.
Under the Indiana court's edict, Ms. Kenda was required to turn A.P.K. over to Mr. Pleskovic's custody by October 16, 2006. When Ms. Kenda failed to comply with the deadline, Mr. Pleskovic informed the London court of Ms. Kenda's violation of the Indiana order. Subsequently, Mr. Pleskovic and Ms. Kenda worked out an agreement with the London court under which Ms. Kenda would return to Indiana with A.P.K. in November 2006, and the London court recognized "'that all matters relating to the welfare of the child are at present vested in the . . . Indiana [court].'" In re Marriage of Kenda, 873 N.E.2d 729, 735 (Ind. Ct. App. 2007).
On December 20, 2006, following extensive proceedings evaluating the custodial issues, the Indiana trial court issued a comprehensive decision awarding Mr. Pleskovic sole physical custody of A.P.K. and ordering Ms. Kenda to pay Mr. Pleskovic's attorneys' fees, in the amount of $49,165.12. Ms. Kenda unsuccessfully appealed the decision to the Indiana Court of Appeals and the Indiana Supreme Court. Kenda, supra, 873 N.E.2d at 729; see also Kenda v. Pleskovic, 878 N.E.2d 222 (Ind. 2007) ("Transfer denied.").
The parties' contentious litigation continued as a new chapter unfolded in the District of Columbia. Ms. Kenda relocated to the District on March 10, 2007, and on May 24, 2007, she filed a motion to reaffirm the District's 2002 custody order and to declare the Indiana custody order void as a matter of law; Mr. Pleskovic opposed the motion. Ms. Kenda claimed that the Indiana court lacked subject matter jurisdiction to modify custody because the District retained exclusive, continuing jurisdiction over the custody determination in this case. Later, in June 2007, Ms. Kenda filed a motion for temporary custody and support, and a motion to modify the Indiana custody order, in the event the Superior Court did not consider it void ab initio. In addition, Ms. Kenda sought attorneys' fees from Mr. Pleskovic. Mr. Pleskovic also filed a June 2007 motion for modification of the Indiana custody order, and opposed Ms. Kenda's motions. Ms. Kenda lodged an opposition to Mr. Pleskovic's motion and sought court-ordered psychological evaluations for both parties and for A.P.K. The parties engaged in discovery and filed numerous pleadings between July 2007 and April 2008.
The Superior Court entered an order on April 25, 2008, denying Ms. Kenda's motion to reaffirm its 2002 custody order, but granted her alternative motion to modify the Indiana order. In another order, docketed on July 2, 2008, the Superior Court granted Mr. Pleskovic's request to file the Indiana custody order as a foreign judgment, as well as that court's judgment against Ms. Kenda awarding Mr. Pleskovic $49,165.12 in attorneys' fees.
Following additional motions and discovery, the trial judge held a hearing (concerning custody) over five days between October 21 and December 11, 2008, during which Ms. Kenda and Mr. Pleskovic testified, as well as experts for each party (a pediatrician for Ms. Kenda and A.P.K.'s clinical psychologist for Mr. Pleskovic). Closing arguments took place on March 20, 2009. On July 30, 2009, the trial judge entered a cogent memorandum opinion and order awarding Ms. Kenda and Mr. Pleskovic joint physical and legal custody of A.P.K., with a specific ...