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Duguma v. Ayalew

Court of Appeals of Columbia District

July 13, 2016

Martha Duguma, Appellant,
v.
Balehager Ayalew, Appellee.

          Argued May 17, 2016

         Appeal from the Superior Court of the District of Columbia (DRB-38-14) (Hon. Judith A. Smith, Trial Judge)

          Lisa Freiman Fishberg for appellant.

          Alan B. Soschin for appellee. Before Glickman and Thompson, Associate Judges, and Reid, Senior Judge.

          Before GLICKMAN and THOMPSON, Associate Judges, and REID, Senior Judge.

          PER CURIAM.

         This is 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 to appellee.

         For the 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.

         I.

         Appellant 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.

         In 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.

         The 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 school here.

         In the "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.

         At 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.[1]

         The 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 ...


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