Argued April 2, 2013.
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Tillman Finley and Gregory F. Jacob, Washington, DC, with whom Daniel Marino was on the brief, for appellant.
Sandra G. Wilkof, Bethesda, MD, for appellee.
Lori Alvino McGill and Kerry J. Dingle, Washington, DC, filed a brief on behalf of the National Organization for Women Foundation, et al., as amici curiae in support of appellant.
Before FISHER and McLEESE, Associate Judges, and REID, Senior Judge.
McLEESE, Associate Judge:
In these consolidated cases, the trial court granted the parties a decree of absolute divorce and decided a number of related issues, including the arrangements for child custody and visitation. Appellant Natalie Khawam raises several claims on appeal. First, she challenges the trial court's final order on custody and visitation, on the grounds that the court lacked jurisdiction and that, on the merits, the court committed several legal and procedural errors. Second, she contends that the trial court erroneously denied her motion to modify the custody order. Third, she argues that the divorce decree should be modified to impose the same reporting obligations on each party. Finally, she seeks reversal of the trial court's order awarding attorney's fees to her former husband, appellee Grayson Wolfe. We affirm the divorce decree and the initial custody and visitation orders, but we remand for further proceedings with respect to Ms. Khawam's motion to modify the custody order. We dismiss the appeal of the attorney's fees award for lack of a final order.
Except as noted, the following facts are undisputed. Ms. Khawam and Mr. Wolfe met in September 2007 in the District of Columbia, where they both had lived for several years. They married in April 2008 on the grounds of Georgetown University in the District. Their son was born in October 2008, at Georgetown University Hospital in the District. Shortly after birth, the child was readmitted to Georgetown University Hospital for treatment of a staph infection.
In the months before their wedding, Ms. Khawam and Mr. Wolfe lived together in Ms. Khawam's apartment in the District. They continued to live in the District after the birth of their son, until they relocated to Arlington, Virginia, in January 2009. The parties dispute, and the trial court did not decide, whether the parties intended to relocate to Virginia permanently or instead only temporarily while searching for a permanent residence in the District.
After a bitter argument in early March 2009, Ms. Khawam left the marital home and went to Tampa, Florida, taking the child with her against Mr. Wolfe's express objections. Mr. Wolfe repeatedly demanded that Ms. Khawam disclose her precise location and return with the child, but Ms. Khawam refused. Several weeks after Ms. Khawam left for Florida, Mr. Wolfe filed a complaint here in the District seeking custody of the child. Aware of the pending lawsuit in the District, but not yet served with process, Ms. Khawam filed a petition for divorce and custody of the child in Florida state court.
In early April 2009, the Superior Court issued an order granting Mr. Wolfe temporary sole custody of the child. That order was served on Ms. Khawam in Tampa, as was notice of the pending custody case in the District. After receiving the notice, Ms. Khawam sought an ex parte temporary " stay-away" injunction against Mr. Wolfe in Florida, alleging that Mr. Wolfe had committed acts of child abuse and domestic violence. A Florida state court granted the requested temporary injunction and subsequently issued additional temporary injunctions. In June 2010, however, the Florida state court determined that it lacked jurisdiction over Ms. Khawam's divorce petition and domestic-violence petitions and therefore dismissed the petitions and the corresponding temporary injunctions.
Ms. Khawam moved to dismiss Mr. Wolfe's custody case in the District, arguing that the Superior Court lacked jurisdiction and that the District was an inconvenient forum. After an eighteen-day evidentiary hearing, the trial court (Saddler, J.) denied the motion to dismiss.
In May 2010, Mr. Wolfe filed for divorce in the Superior Court. Ms. Khawam moved to dismiss, alleging improper service of process and lack of jurisdiction. The trial court (Bayly, J.) denied the motion to dismiss.
The custody and divorce cases were consolidated, but the trial court (Kravitz, J.) held separate, lengthy trials in each case. After the custody trial, the court granted sole custody of the child to Mr. Wolfe, but allowed Ms. Khawam supervised visitation with the child. After the divorce trial, the court issued a judgment of absolute divorce ordering Ms. Khawam to pay child support to Mr. Wolfe and to report any new employment to Mr. Wolfe within forty-eight hours. The court denied without a hearing Ms. Khawam's motion to modify the custody order. Finally, the court issued an order partially granting Mr. Wolfe's request for attorney's fees. Ms. Khawam appeals from all four orders.
We first address Ms. Khawam's contention that the Superior Court lacked jurisdiction to issue the custody order. We conclude that the trial court correctly exercised jurisdiction.
In finding that it had jurisdiction to issue the custody order, the trial court relied upon D.C.Code § 16-4602.01(a)(2) (2012 Repl.), which is part of the District of Columbia's Uniform Child Custody Jurisdiction and Enforcement Act (" DC UCCJEA" ). In re J.R., 33 A.3d 397, 400 (D.C.2011). Under that provision, the District
of Columbia has jurisdiction to enter an initial custody order if (1) the child at issue does not have a " home state" within the meaning of the DC UCCJEA, or the home state has deferred to the District; (2) the child and at least one of the child's parents have a " significant connection with the District other than mere physical presence" ; and (3) " [s]ubstantial evidence is available in the District concerning the child's care, protection, training, and personal relationships...." D.C.Code § 16-4602.01(a)(2). In determining whether these requirements are met, the trial court considers the situation at the time the initial custody application is filed. Cf. In re B.B.R., 566 A.2d 1032, 1040 (D.C.1989) (interpreting similarly worded provision of Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (c)(1)(b)(ii)(I) (1982)).
Ms. Khawam does not dispute that the child in this case had no home state and that at least one of the child's parents had a significant connection with the District. Ms. Khawam does challenge the trial court's conclusions that the child had a significant connection with the District and that substantial evidence concerning the child was available in the District.
Generally, we review legal determinations concerning the trial court's jurisdiction de novo and we review factual determinations concerning the trial court's jurisdiction for clear error. See, e.g., Monteilh v. AFSCME, AFL-CIO, 982 A.2d 301, 302 (D.C.2009). This court does not appear to have decided whether " significant connection" and " substantial evidence" determinations under the UCCJEA are legal rulings to be reviewed de novo or instead should be reviewed deferentially. Courts in other jurisdictions take varying approaches to that question. Compare, e.g., Steven v. Nicole, 308 P.3d 875, 879 (Alaska 2013) (using " abuse of discretion" standard in reviewing trial court's determination under Alaska UCCJEA that substantial evidence regarding child was available in state), with, e.g., In re Marriage of Sareen, 153 Cal.App.4th 371, 62 Cal.Rptr.3d 687, 691, 695 (2007) (conducting de novo review of jurisdictional determination under California UCCJEA). For current purposes, we assume without deciding that we should review de novo the trial court's findings of " significant connection" and " substantial evidence" under D.C.Code § 16-4602.01(a)(2).
In finding that the child had a significant connection to the District, the trial
court relied on the following: (1) the child was born in the District; (2) the child lived in the District for the first two-and-a-half months of his life; (3) the child received medical treatment in the District; (4) both of the child's parents had significant connections with the District; and (5) Mr. Wolfe continued to live and work in the District. Considering that the child was only five months old when Mr. Wolfe filed the custody suit, we conclude that the child had a significant connection to the District.
Although we have not located a case that is on all fours with this case, this court and others have found a " significant connection" in circumstances comparable to those of this case. See, e.g., In re B.B.R., 566 A.2d at 1039-40 (under Parental Kidnapping Prevention Act, four-month-old child had significant connection with California, where child was born in California, child spent first two days of his life in California, parties signed adoption agreement concerning child in California, and child's biological mother and sibling lived in California); In re D.S., 217 Ill.2d 306, 298 Ill.Dec. 781, 840 N.E.2d 1216, 1223 (2005) (newborn child had significant connection to Illinois, where child's father and half-siblings lived in Illinois and child's mother had lived in Illinois until at least morning of child's birth); Shields v. Kimble, 2010 Ark.App. 479, 375 S.W.3d 738, 742 (2010) (four-year-old child had " significant connection" to Arkansas, where child had lived in Arkansas for first three years of life, child had extended family living in Arkansas, and parental visitation occurred in Arkansas); In re Marriage of Sareen, 62 Cal.Rptr.3d at 695 (two-year-old child had " significant connection" to California, where child had lived in California for three months, child had attended daycare in California, child's uncle lived in California, and child's mother was working part-time and receiving public assistance in California); cf. Carl v. Tirado, 945 A.2d 1208, 1210 (D.C.2008) (infant had " significant connection" to District of Columbia, where father lived in District, child was baptized in District, child was cared for by father during day in District, extended family lived in District, and mother had brought suit for child support in District).
We are not persuaded by Ms. Khawam's arguments to the contrary. First, Ms. Khawam argues that the trial court could consider only connections that existed at the moment the custody suit was filed. According to Ms. Khawam, it therefore is irrelevant that the child had been born in the District and had resided in the District for the first two-and-a-half months of his life. We disagree. The provision at issue requires that the child " have a significant connection" to the District. D.C.Code § 16-4602.01(a)(2)(A). Neither the wording nor the logic of that provision suggests that the trial court must ignore all circumstances that occurred before the filing of the custody petition. To the contrary, ...