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Henok Araya v. Aida Keleta

March 21, 2013


Appeals from the Superior Court of the District of Columbia (DRB-1388-09 & DRB-3351-09) (Hon. John H. Bayly, Jr., Trial Judge) (Hon. Jennifer Di Toro, Post-Trial Judge)

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

Argued November 28, 2012

Before GLICKMAN, THOMPSON, and MCLEESE, Associate Judges.

In these consolidated appeals, appellant Henok Araya (the "husband") seeks review of the Judgment and Decree of Divorce Absolute and Order of Custody and Support entered by the trial court on August 24, 2011, (the "Order" or the "divorce decree") and the court‟s subsequent order on attorney‟s fees. He makes numerous claims of error with respect to the court‟s child-custody determination, division of property, and awards of child support, alimony, and attorney‟s fees to his now ex-wife, Aida Keleta (the "wife"). Although we address each of the issues raised, only one occasions this published opinion: whether the court erred in awarding to the wife real property that the husband brought to the marriage as his sole and separate property. On the particular facts of this case, we hold that the court did not err in making that disposition. As to that ruling, and in all other respects, we affirm the judgment of the trial court.

I. Background

The parties married on August 20, 2004, and separated on January 15, 2009. They have three minor children, all daughters, who were ages five, three, and two on the date of the divorce decree. As found by the trial court, at the time of trial, the husband, a cosmetic surgeon, was an "entrepreneurial physician in private practice," who worked full-time, generating a "significant income from his practice and from . . . numerous residential and undeveloped properties." The wife "remain[ed] with the children in the home, though [she] expect[ed] ultimately to become employed."*fn1

On May 11, 2009, the husband filed a complaint in which he sought sole legal and physical custody of the children. Thereafter, he filed an amended complaint for divorce, custody, and spousal and child support. The wife filed an answer, amended answer, and counterclaim seeking the same. Trial was held over several days from July 28, 2010, until January 6, 2011. In its 44-page Order, the court (the Honorable John H. Bayly, Jr.) granted the petitions for divorce, awarded joint legal custody of the children, awarded the wife sole physical custody of the children, granted the husband visitation with the children, and ordered the husband to pay monthly child support in the amount of $3,128. The court also awarded the wife sole and separate ownership and possession of real properties located at 1800 New Jersey Avenue, N.W. (the "New Jersey Avenue property," which the court referred to as the parties‟ "marital home") and 435 S Street, N.W. (the "S Street property," which the court termed the "appurtenant dwelling"). In addition, the court awarded the wife spousal support in the amount of $6,000 per month for twenty-four months (an amount calculated to enable her to pay the mortgages on those annexed residential properties until, as contemplated by the court, she is able to complete re-training for employment).

II. Child Custody and Visitation

The husband challenges the child custody award and visitation order on several grounds: he contends (1) that the trial court erred in finding and heavily weighting evidence that he committed intrafamily offenses in 2002 and in 2005-07, while "dismiss[ing]" the wife‟s violence toward him; (2) that the custody award improperly was based on speculation that he might be violent toward the children; and (3) that it was legal error for the court to modify the custody arrangement that was ordered after a 2010 hearing on the parties‟ cross-petitions for civil protection orders ("CPOs"),*fn2 and that was continued through the court‟s December 2010 pendente lite custody order, where there was no showing of a change in circumstances. We reject these claims.*fn3

In making the custody determination, the court specifically recognized the statutory "rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense . . . has occurred." D.C. Code § 16-914 (a)(2) (2001). The court then noted that both parties had been ""found to have committed intrafamily offenses,‟" a circumstance the court determined necessitated a separate evaluation of each party‟s history of offenses, in order to "determine whether the presumption [in favor of joint custody] ha[d] been rebutted or otherwise affected." The court‟s Order recites that, in 2002, the husband pled guilty to and was "convicted" in Virginia of assaulting the wife (causing an injury to her eyelid);*fn4 that, in 2005 and 2006, the husband again assaulted the wife and, during one incident, caused an injury to her earlobe that required outpatient surgery; and that, after an incident in which one of the children was scalded with hot water, the husband hit the wife "so forcefully in her stomach as to cause [her] pain and apprehension of miscarriage." The court also took notice of the 2009 physical altercation between the parties (the basis of the CPOs), during which the husband "violently assaulted [the wife] by pulling and dragging her across the threshold of the door of the home. . . . [and the wife] assaulted [the husband] by biting him in his torso area, perhaps to [restrain him] from taking the minor children from the New Jersey Avenue property."Araya, 26 A.3d at 709. The court noted in addition that the wife was convicted in May 2011 of misdemeanor destruction of property for having torn the husband‟s pants pocket during a physical altercation in October 2010. The court observed that while the wife‟s conduct was "also reprehensible," it was not "so dangerous or so likely of repetition as [the husband‟s] episodic assaultive behavior."

The court found that both parties "quite evidently love[] and care[] for" the children and noted that their violence "has not so far been directed at the children . . . but only at each other." However, while satisfied that the wife presents "no menace of psychological or physical harm to the children," the court expressed "apprehension that [the husband] may not be fully ready to forgo all force." Citing the husband‟s multiple "prior instances of resorting to force within the family," the court decided to "limit [his] time with the children to unsupervised visitation" and to award sole physical custody to the wife. This arrangement, the court found, would "lessen[] the opportunity for [the husband] to turn to violence th[r]ough fatigue, frustration, or overwork."

Contrary to the husband‟s claim, the record supports the trial court‟s findings regarding the husband‟s intrafamily offenses. The husband contends that, contrary to the court‟s summary, there was no testimony about intrafamily violence in 2005 or 2006 (or 2007, a year the trial court did not actually mention in its Order).However, while the wife did not mention dates in connection with most of the assaultive incidents she described, she did provide details about her being pregnant and about the presence of a child or children during some of the incidents. The court would have been able to estimate (even if imprecisely) the years of the incidents (for example, the post-scalding incident, which occurred when the wife was pregnant and was in the company of the oldest daughter)by reference to the children‟s birth dates, about which the court heard testimony.*fn5 Further, the court did not "minimize[] and dismiss[]" the wife‟s "violence towards [the husband] and the kids." As already noted, the court took into account the wife‟s misdemeanordestruction-of-property conviction and the incident in which she bit the husband in his torso, and it found that the wife had not been violent toward the children and had neither neglected nor endangered them. While the husband made numerous allegations to the contrary, the court did not credit his testimony. The court found "unconvincing" the husband‟s allegation that the wife threw one of the children into the husband‟s car.*fn6 As to his allegation that the wife "poured hot water" on one of the children, the court found that there was an "accident" that "resulted in [one of the children] being scalded by water she spilt on herself while in her mother‟s care." The court found that this accident did not indicate a "pattern of inattention or indifference by [the wife] to her children‟s safety or well-being." The court also found that if the wife experienced post-partum depression, she had "surmounted" it. That finding and the others described above were "anchored in credibility assessments derived from personal observations of the witnesses."*fn7

They are "beyond appellate reversal" unless they are "clearly erroneous,"*fn8 which they are not.*fn9

Although the court repeatedly acknowledged that there was no evidence that the husband had been violent toward the children, it was concerned that it "may not be entirely compatible with [the children‟s] best interests" to place them with the husband, who was already "pressuring for [the children‟s] success or academic accomplishments at such an early stage in their lives," and who had "already displayed his temper and violent reaction when confronted with disagreement, disappointment, or displeasure." It is clear from the Order that these facts - and not mere "speculation," as the husband asserts - informed the court‟s determination to ensure that the husband, who it found had "anger management difficulties," was not "placed in a position that would propel him to resort to force to impose parental direction or discipline." Moreover, the court‟s decision to award sole physical custody of the children to the wife was based on several other factors, including the fact that the wife had spent "considerably more time with the children in their daily routines" and was "more intimately aware of their needs, especially for continuity, closeness, and displays of affection." The court observed that the husband‟s attention was "directed more to promoting school attendance, planning, and enforcing schedules." The court was "skeptical that [the husband‟s] professional career and demanding hours would have permitted [him] the time he ...

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