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Estopina v. O'Brian

Court of Appeals of Columbia District

June 27, 2013

Ramon Estopina, Appellant,
v.
Susan O'Brian, Appellee.

Argued January 15, 2013

Appeal from the Superior Court of the District of Columbia (DRB-1114-10) (DRB-1955-10) (Hon. Jeanette J. Clark, Trial Judge)

Brett E. Cohen for appellant.

Wesley P. Gelb, with whom Anne Marie Jackson was on the brief, for appellee.

Before Washington, Chief Judge, Oberly, Associate Judge, and Pryor, Senior Judge.

Washington, Chief Judge

Appellant Ramon Estopina appeals from the Superior Court judgment granting his ex-wife, appellee Susan O'Brian, joint legal custody and primary physical custody of their four-year-old child, I.E.O., and allowing Ms. O'Brian to move with I.E.O. from the District of Columbia to

Virginia Beach, Virginia. Appellant argues that the trial court erred by failing to acknowledge the presumption in favor of joint custody in its Final Judgment and that it abused its discretion in determining that the best interests of the child were served by granting appellee primary physical custody and the right to relocate. For the reasons stated below, we affirm the trial court's judgment.

I.

Appellant and Ms. O'Brian were married in 2005 and their only child, I.E.O., was born in December 2006. The parties separated in 2009. Appellant filed his Complaint for Custody on April 19, 2010. Ms. O'Brian filed a Complaint for Legal Separation on June 30, 2010 and a Motion for Temporary Custody on July 29, 2010, seeking permission to relocate from the District of Columbia to Virginia Beach, Virginia, with I.E.O. The Superior Court consolidated these cases.

At trial, evidence was admitted that Ms. O'Brian stayed at home with the child from his birth until 2009. Appellant regularly traveled for work for extended periods during that time, but shared responsibility for daily tasks and care of I.E.O. with Ms. O'Brian, including attending doctors' appointments and events. The parties owned a home in Georgetown, but once they separated and appellant lost his job at the end of 2010, [1] appellant could no longer afford to pay the mortgage. Ms. O'Brian moved to Arlington, Virginia, but had difficulty affording her rent and great difficulty bringing I.E.O. to school in the District of Columbia before she had to be at work in the morning. Both parties agreed I.E.O. would have to change schools because they could not afford to continue sending I.E.O. to the private school in the District of Columbia where he had been attending preschool. Ms. O'Brian's sister testified that if Ms. O'Brian and I.E.O. moved to Virginia Beach, Virginia, the child could attend the Goddard School, an early childhood education school that she owned, where Ms. O'Brian would also be able to work as a teacher, thus allowing I.E.O. to attend free of charge. Appellant testified to a number of financially viable school options in the District of Columbia, some of which included Spanish immersion programs, which was important since both parents wanted the child exposed to Spanish culture. Appellant testified that some of the schools had guaranteed spots, but some involved a lottery process, including the schools with Spanish immersion programs. Ms. O'Brian's sister and father, who both lived in Virginia Beach, testified that they and the sister's children had a very close relationship with I.E.O. Ms. O'Brian and appellant did not have family in the District of Columbia.

The trial court granted joint legal custody and primary physical custody to Ms. O'Brian and allowed her to move with I.E.O. from the District of Columbia area to Virginia Beach. The trial court awarded appellant regular visitation consisting of alternating weekends commencing Friday evening and continuing until Sunday evening. In addition, the Final Judgment set forth an alternating holiday schedule as well as a regular summer vacation schedule that granted appellant five weeks with the child during the summer. Appellant was also granted daily access to speak to the child by phone or webcam.

In ordering this custody arrangement, the trial court placed special emphasis on the strong relationship I.E.O. had with his family in Virginia Beach. The trial court also gave significant weight to the fact that Ms. O'Brian was offered a teaching position at the Goddard School in Virginia Beach and would be able to take I.E.O. to school each day where he would also receive support in his transition from his aunt who owned the school. The court recognized appellant's strong desire to expose I.E.O. to the Spanish language and culture, and noted that although the Goddard School did not offer a Spanish immersion program, it did offer a Spanish class, and placement in the Goddard School was a guaranteed opportunity unlike placement in the District of Columbia ...


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