May 17, 2016
from the Superior Court of the District of Columbia
(DRB-38-14) (Hon. Judith A. Smith, Trial Judge)
Freiman Fishberg for appellant.
B. Soschin for appellee. Before Glickman and Thompson,
Associate Judges, and Reid, Senior Judge.
GLICKMAN and THOMPSON, Associate Judges, and REID, Senior
Martha Duguma's appeal from the trial court's order
awarding sole physical custody of her three minor children to
their father, Balehager Ayalew. Appellant raises three issues
on appeal. First, she argues that the trial court abused its
discretion in refusing to grant her counsel's request for
a continuance when she failed to appear on the day of the
custody trial. Second, appellant argues that the court erred
in failing to interview the children or appoint a guardian ad
litem to determine the children's wishes as to their
custody. Third, appellant argues that even aside from the
absence of evidence as to the children's custodial
preferences, there was insufficient evidence to grant custody
reasons that follow, we hold that the trial court did not err
in refusing to continue the trial; that a remand is required
for the court to hear from the parties' children and
consider their wishes respecting custody; and that the
evidence was not otherwise insufficient to support the
court's custody determination.
and appellee were married in 1997 and have three children
together: D., born February 26, 2000; A., born March 14,
2005; and Z., born on September 1, 2006. All three children
are United States citizens, as are the parties.
2006, before Z. was born, appellant and the children moved
back to her native country of Ethiopia. Thereafter, appellee,
who remained in the United States to attend school and work,
periodically visited them in Ethiopia for several weeks or
months at a time. In addition, each year until 2013, the
children traveled to the United States to stay with appellee
at Christmas and over the summer.
trial court credited appellee's testimony that in April
of 2013, the parties agreed that the children should move to
the United States to continue their education and live with
appellee in the District of Columbia. On June 24, 2013,
appellant brought the children here to stay with him.
Appellant left the children with appellee when she returned
to Ethiopia after several weeks. At the end of the summer,
the children remained in the District and were enrolled in
"Emergency Complaint for Child Custody Hearing"
that appellant filed on January 7, 2014, she alleged that
appellee "without the consent or agreement of
[appellant] kidnapped and removed the minor children"
from her home in Ethiopia and that he "has refused to
return them to said home since June, 23, 2013 [sic]."
The trial court denied appellant's request for emergency
relief and scheduled an initial hearing on March 13, 2014.
appellant's request (which was untimely), the court
waived her presence at this initial hearing. Thereafter,
appellant did not appear at the uncontested divorce trial and
custody status hearing on April 28, 2014. Although she was in
the United States, she informed the court through counsel
that she had fallen ill just minutes before those proceedings
were to commence. The court accepted this explanation, but
not without admonishing appellant's attorney that her
repeated "fail[ure] to show up means she's not
participating and pursuing her case." Among other
matters discussed during the custody status hearing, the
court inquired whether the parties wished to have a guardian
ad litem appointed to represent the children's interests.
Both parties declined to so request.
custody trial was set for August 11, 2014. On that date,
appellant again failed to appear. Her counsel had no
explanation for her absence; he did not know where she was or
even whether she was in the country. He asked for a
continuance so that he could locate appellant and secure her
presence for a later trial date. The trial court denied the
request, however, on the grounds that good cause had not been
shown and that a continuance would prejudice ...