BRIAN T. DOWNING, APPELLANT,
CHARLOTTE M. PERRY, APPELLEE
Argued April 22, 2015
Appeals from the Superior Court of the District of Columbia. (DRB-1909-05). (Hon. Jeanette J. Clark, Trial Judge).
Gregory R. Nugent, with whom Brian T. Downing, Pro se, was on the brief, for appellant.
Rebecca Gray for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and NEWMAN, Senior Judge. OPINION by Associate Judge BLACKBURNE-RIGSBY. Opinion concurring in part and dissenting in part by Associate Judge GLICKMAN at page 34.
Blackburne-Rigsby, Associate Judge
This case involves a high-conflict and prolonged child custody battle between parents, appellant Brian Downing and appellee Charlotte Perry, over their two minor daughters, M.D. and E.D. The primary issue we address in this appeal is whether the trial court abused its discretion by concluding that a " substantial and material change in circumstances," D.C. Code § 16-914 (f)(1) (2012 Repl.), warranted modification of the parties' 2012 custody arrangement. The trial court's child custody modification granted Perry's request to remove Downing's tie-breaking authority in instances where the parties have a dispute over day-to-day legal custody matters, and instead vest that authority in a neutral Family Treatment Coordinator (" FTC" ). The undisputed evidence revealed that Downing had disallowed essentially all extracurricular activities for the girls, and has never accepted the FTC's recommendation when it differed from his own position. On appeal, Downing principally contends that the trial court erred in modifying the custody arrangement because Perry failed to demonstrate a substantial and material change in circumstances to justify the modification. He also argues that the trial court's order delegated core issues of legal custody to the FTC.
We conclude that there was a substantial and material change in circumstances supporting the modification of the custody agreement in this high-conflict case, and that the trial court's order did not delegate core issues of legal custody to the FTC. To summarize, there was an unforeseen change in circumstances since the parties entered into the 2012 custody agreement. In particular, the evidence revealed that Downing was given tie-breaking authority so that the parties would communicate more effectively, and so that he would feel more comfortable in authorizing more extracurricular activities for M.D. and E.D. Yet, Downing continued to exhibit a patterned negative response to Perry's parenting, which manifested itself in his consistent rejection of the FTC's recommendations in favor of his original position each time the tie-breaking process was utilized. Consequently, the girls were enrolled in fewer extracurricular activities than before the 2012 agreement, and Downing prohibited them from participating in activities in which they had previously participated. Notably, the trial court determined from the evidence that Downing had used his tie-breaking authority to essentially effectuate " de facto legal custody" over the children. Given such evidence, the trial court did not abuse its discretion in concluding that Downing had utilized his tie-breaking authority in a manner that was " not workable and  not in the best interest of the minor children, e.g., extracurricular activities mushrooming into multiple issues affecting the minor children's best interest, including their mental and physical well-being." Accordingly, we affirm the trial court's order modifying the parties' custody agreement.
I. Factual Background
This appeal is merely the latest chapter in a long-standing conflict between the parties over their children. The instant action arises from a June 1, 2012, custody agreement between the parties that was
incorporated, but not merged, into a June 20, 2012, consent order by the court (" 2012 agreement" ).
A. History of Conflict
Downing and Perry divorced in 2006, and have two minor daughters, M.D. born May 1, 2001, and E.D. born September 19, 2003. Upon their divorce, the parties entered into a settlement agreement which granted Perry primary physical custody and both parties joint legal custody of their two minor daughters. Yet about one year later, on August 3, 2007, Downing filed a motion for sole legal custody of the children, contending that Perry made unilateral decisions pertaining to legal custody matters and sought to sabotage Downing's relationship with his daughters. The parties ultimately settled the matter by reaching a new custody agreement via a consent custody order issued on March 19, 2009 (" 2009 order" ). Under the 2009 order, Downing and Perry maintained joint legal custody of the children and approximately fifty-fifty residential custody. [Id. A-2, 3] This agreement called for the parties to work with a FTC, who " shall assist the parents with joint decision-making and in resolving conflicts when such joint-decision-making is not feasible or the parties cannot agree to a joint decision." [Id. A-11] The FTC was authorized " to resolve the dispute by issuing a written recommendation, which shall be binding upon the parties unless and until it is set aside or modified by the Court." 
Approximately one year later, on June 14, 2010, Downing filed another motion seeking full custody of the children, making essentially the same accusations as before, namely, that Perry made unilateral decisions and sabotaged his relationship with the girls. Pending trial, however, the parties entered into the instant 2012 agreement. Under the terms of the 2012 agreement, " [t]he parties shall share joint legal custody of the children . . . [and] [i]n the event that the parties are not in agreement regarding a legal custody decision which impacts the health, education, religion or general welfare, including extracurricular activities, of the children, the parties will consult with a FTC." However, unlike the terms of the 2009 order, Downing -- rather than the FTC -- now had final tie-breaking authority to resolve any disagreement between the parties on legal custody issues. The agreement explicitly states that " [b]oth parties agree that the FTC will not be asked to make decisions or have any tie-breaking authority. The FTC will only make recommendations." 
According to Jamie Desjardins, the former Guardian ad litem who helped broker the 2012 agreement, she recommended giving Downing tie-breaking authority over disputed legal custody decisions to lower conflict. Specifically, she " hoped" that it would " relax" Downing and " make him feel more comfortable authorizing things [i.e., activities] for the children." It was Desjardins's " hope that if [Downing] had . . . tie-breaking authority that he would feel like it would be okay for the
children to do certain activities because he wouldn't have to worry that [Perry] would be signing them up for other activities . . . ."
Downing claimed that initially following the 2012 agreement he felt " a great sense of relief," and thought the parties would " never see the inside of a courtroom again." Perry verified that Desjardins had recommended giving Downing tie-breaking authority, and that it would be " very risky" for Perry to go to court. Perry hoped that, with the advice of a neutral third party, Downing " might be able to make decisions in the best interest of [the] children." She also thought it was the best deal " under the circumstances," and that a third party individual would now " truly see the dynamics that were going on and would hopefully help [them] address those and work through them and communicate more effectively."
However, despite the 2012 agreement giving Downing tie-breaking authority, Downing once again filed for sole legal and primary physical custody of M.D. and E.D. on August 19, 2013. A multi-day evidentiary hearing on whether to modify the 2012 custody arrangement between the parties followed.
B. The Evidentiary Hearing and Downing's Use of the Tie-Breaking Power
At the evidentiary hearing, the chosen FTC, Dr. Charles David Missar, testified that he began working with the parties in late-2012 or early-2013. Dr. Missar opined that the conflict between the parties stemmed from " a long history of mutual mistrust." He testified that although " there are many areas of the girls' participation [i.e., upbringing] . . . that they actually do agree on" the process of making joint decisions " in a reasonable and logical and rational manner has become so contentious" that even areas of agreement between Downing and Perry are lost in the fighting. For example, in order to avoid an immediate negative reaction from Downing, Dr. Missar counseled Perry to " phrase her suggestions" to Downing " in different terms so as to avoid making it sound like 'this is what I want' or 'this is my suggestion.'" However, Perry did not have the same instant negative response to Downing's suggestions. In fact, Dr. Missar could not recall a single instance in which Downing made a suggestion and Perry exhibited the same instinctive negative reaction. Notably, Dr. Missar also testified that, in his experience as an FTC and in his professional capacity working with numerous families, he has not seen a " high conflict situation" where " it has been effective or productive" for one of the parents to have tie-breaking authority. The trial court credited Dr. Missar testimony that " [i]n terms of the practical effects, given the circumstances between the parties [i.e., Downing and Perry]," there was not much difference between Downing's current tie-breaking authority and an award of sole legal custody.
The record reflects three instances in which Downing's patterned negative response towards Perry thwarted the FTC dispute process, and resulted in Downing exercising " de facto " legal custody of the children. On all three occasions, Downing perfunctorily rejected the FTC's recommendation in favor of his own original
position. First, he unilaterally prevented M.D. from receiving a HPV vaccine, even though Dr. Missar recommended that " unilateral decision-making [in this matter] [was] not appropriate." In Dr. Missar's opinion, " [t]his type of decision goes to the heart . . . of necessary joint-parent decision-making." Nevertheless, in a one-sentence " tie-breaking" decision, Downing declared that, " Right now, I do not consent to the HPV [v]accine, and it won't be done unless I do consent." Second, Downing also prevented the children from attending Camp Wright, even though the summer camp fell during Perry's week with the children. Dr. Missar diplomatically recommended that the parties should focus on gauging the girls' interest in the camp, and that, having resolved whether the camp fell during Perry's or Downing's week, he believed that " unilateral decisions about activities on another's parent's week [was] not appropriate." Yet again, Downing in one sentence and without explanation stated, " [M.D.] and [E.D.] will not attend Camp Wright this summer."
The third example merits extended discussion -- Downing's refusal to let the girls attend Girl Scouts and another extracurricular activity, Girls on the Run (" GOTR" ). M.D. and E.D. had previously participated in both Girl Scouts and GOTR. Downing testified that he believed " Girl Scouts [was] a great activity," and that GOTR was likewise a " good activity" that was " girl-oriented." However, following the 2012 agreement, Downing used his tie-breaking authority to prohibit the girls from participating in either activity, even though Dr. Missar explicitly recommended that the girls continue to participate in Girl Scouts because they both seemed to enjoy it. Dr. Missar even implored Downing that " for the sake of the girls and their consistency of participation with peers," he should " make efforts to get the girls to these activities (or at a minimum allow the other parent to do so)." Following Downing's decision, Dr. Missar spoke with M.D. and E.D. about their interest in Girl Scouts and both of them indicated that they " liked participating in Girl Scouts. They had friends who were in Girl Scouts. They like some of the activities in Girl Scouts. . . . [And] [b]oth expressed some upset . . . about not participating in Girl Scouts on an ongoing basis." Likewise, Perry testified that, when she informed E.D. that she could not attend GOTR that year, E.D. became " distraught, very upset."
Downing first testified that he thought the girls would be overly scheduled if they participated in either activity, and that there would be " logistical challenges," given that Downing and Perry were divorced. Yet, later, Downing clarified that Girl Scouts had only " one to two scheduled" events per month, and conceded that he did not know whether M.D. was actually signed up for any extracurricular activities at present, and that E.D. only had weekly tutoring sessions. In fact, Perry testified that M.D. was not signed up for any extracurricular activities, and Dr. Missar opined that the girls were involved in a " below average" number of activities for children of their age. On cross-examination, Downing gave a different reason for disallowing these activities, explaining that he did not approve any activities for the girls on Perry's custodial time because Perry had started taking E.D. to a few Girl Scouts meetings without first " following the process," i.e., the 2012 agreement, which required the consent of both parents. It appears that Downing likewise ...