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Hipps v. Cabrera

Court of Appeals of Columbia District

September 28, 2017

Ieasha Hipps, Appellant,
Ruben Cabrera, Appellee.

          Submitted March 29, 2017

         Appeal from the Superior Court of the District of Columbia DRB-3850-06, Hon. Yvonne Williams, Trial Judge

          Gregory F. Jacob, David R. Dorey, and James M. Harrigan were on the brief for appellant.

          Ruben Cabrera, pro se.

          Before Fisher, Thompson, and Beckwith, Associate Judges.

          Thompson, Associate Judge.

         Appellant Ieasha Hipps (the "Mother") and appellee Ruben Cabrera (the "Father") are the parents of two minor children. The Mother contends in this appeal that the trial court erred or abused its discretion in numerous respects: by relinquishing jurisdiction over the custody orders pertaining to the children in light of the Father's "unilateral actions" in moving the children to New York; by declining to impose sanctions for the Father's failure to comply with the terms of the custody orders, failure to comply with discovery obligations, and submission of allegedly fraudulent evidence; and by excluding certain evidence pertinent to the Mother's request for sanctions under Super. Ct. Dom. Rel. R. 11 ("Rule 11 sanctions") for alleged fraud. The Mother further argues that the trial judge was biased in favor of the Father because of his pro se status and should therefore be disqualified from hearing the case on (the requested) remand.

         For the reason discussed below, we affirm the trial court's order denying Rule 11 sanctions. We also affirm the trial court's decision to relinquish jurisdiction over the custody orders. As explained in more detail infra, we do so because the court's decision was within the broad discretion we afford it under the "inconvenient forum" section of the Uniform Child Custody Jurisdiction and Enforcement Act of 2000 ("UCCJEA") (the standards of which the trial court applied even though it did not specifically refer to the section). Finally (and relatedly), we vacate the other challenged rulings.


         This matter commenced in December 2006, when the Father filed a complaint for custody claiming that the Mother had failed to provide "appropriate" living conditions for the children. On August 16, 2012, the family court issued a final custody order (the "2012 Custody Order") granting the Father primary physical and legal custody of the subject minor children. The 2012 Custody Order requires the Father "to consult [the Mother] and to allow opportunity for her input on matters of significance which impact upon the health, education, safety[, ] and general well[-]being of the children." The 2012 Custody Order further provides that the Father has "an obligation to advise [the Mother] of significant decisions that need to be made to serve the children's best interest" and "apprise[] [the Mother] of significant medical procedures, tests, and conferences." In addition, the 2012 Custody Order authorizes the Mother to "interact with the children's educational placement and . . . attend parent/teacher conferences, performances/celebrations, and school activities."

         As to visitation, the 2012 Custody Order calls for the Mother to have "visitation from Friday at 7:30 p.m. to Sunday at 3:00 p.m." every other weekend and alternate yearly custody of the children for holidays such as Thanksgiving, Christmas, and New Year's Day.[1] The 2012 Custody Order also allotted the Mother half of the children's spring-break time and "summer time-sharing with the subject minor children from July 1 until July 31." Additionally, that custody order states that "[n]either parent [is to] make plans or arrangements that would interfere with the other parent's authority or interfere with the other parent's time with the subject minor children without the express agreement of the other parent"; that "[e]ach parent shall have complete medical information regarding the subject minor children"; and that "[t]he parents shall work together as cooperating parents to maintain consistent structure" for the children. The 2012 Custody Order also provides that the parties "may agree, in consultation with the Guardian Ad Litem, . . . to modify the time[-]sharing schedule with regard to visitation periods and dates."[2]

         In August 2013, the Mother filed an Emergency Motion and Request for Emergency Hearing (to which the Father did not respond), asserting inter alia that the Father had taken the children to reside in New York. On November 18, 2014, the family court judge then-presiding over the case issued a further custody order (the "2014 Custody Order") in which the court acknowledged the Mother's belief that the Father "now resides in New York, " questioned whether the court had "ongoing jurisdiction to modify" the custody arrangements, identified as the "primary remaining issue . . . how to facilitate [the Mother's] visitation with the children, " and stated that "frequent weekend[]" visits "may not be feasible." The 2014 Custody Order required the Father to ensure that the children were brought to the District of Columbia for Thanksgiving of that year ("or risk contempt of court") and directed the parties to attempt on their own to reach an agreement to modify the prior visitation schedule (which the court said "remain[ed] in effect") and, if no agreement could be reached, to contact the court's free mediation service by December 1, 2014, to develop "an alternate schedule for [the Mother's visitation] considering [the Father's] relocation with the children."

         In November 2015, the Mother filed a motion requesting that the court hold the Father in contempt. The motion recited that the Father had moved with the children to New York without the Mother's consent and alleged that he had "steadfastly refused to bring the children to the District [of Columbia]" for scheduled visitation and failed to consult with the Mother and keep her informed about the children. The motion also alleged that the Father had failed to comply with the terms of the 2014 Custody Order, including failing to bring the children to the District for their 2014 Thanksgiving visit with the Mother and failing to cooperate with the court's mediation service.[3]

         In a written opposition to the Mother's motion for contempt, the Father admitted that he had not brought the children to the District for visitation but claimed that "he informed the Mother and the Guardian Ad Litem that he was considering moving to New York" and received their consent to make such a move.[4] The Father also claimed that the Mother had "frequently missed her scheduled access with the children, " that he had kept the Mother informed of the children's schools' contact and medical information, and that he did not comply with the 2014 Custody Order because the Mother had "refused to return the children" to him "at the agreed upon time and place" and had "provided [him with] false addresses." The Father attached to his opposition copies of two text messages, which he alleged were sent to him by the Mother on October 20, 2015, and December 17, 2015 (the "claimed text-message dates"), stating:

You should of [sic] drop [sic] the child support and maybe I didn't have to lie to take you to court[.] [D]rop the rears [sic] and I'll say we came to an agreement. . . .
If I cant [sic] have the children[, ] I hope they end up in a foster care. I hate all you catholic fagots . . . and my kids will not practice that religion[, ] only allah!!! I hope you and your family burns like your dead aunt!!!

         On February 1, 2016, the Mother filed a motion for Rule 11 sanctions against the Father, claiming that the text messages had been manufactured and that the Father had lied under oath. The Mother obtained her cell phone records from her cellular carrier, Sprint, and thereafter noticed a deposition of Sprint's custodian of records for the purpose of authenticating those records. The deposition was conducted on February 29, 2016, by remote electronic means (with the Sprint deponent in Kansas and the Mother's counsel in his law office in the District). Despite notice of the deposition, the Father did not attend. The Mother also noticed a deposition of the Father for the same date and location and requested that he produce his cell phone for inspection. The Father did not appear for his scheduled deposition. On February 26, 2016, the Mother filed a motion to compel the Father to cooperate in discovery, asserting that he had failed to respond to a request for production of documents. On February 29, 2016, the Mother also asked the court to sanction the Father for failing to attend his deposition and produce his cell phone for inspection.

         On March 3, 2016, the Honorable Yvonne Williams presided over an evidentiary hearing on the Mother's motions and, the same day, announced rulings from the bench, denying the motion for Rule 11 sanctions and relinquishing continuing jurisdiction over the custody dispute. On March 14, 2016, and April 7, 2016, the trial court also issued written orders reiterating its decision to relinquish jurisdiction, denying the Mother's motions for contempt and for discovery sanctions, and denying "as moot" the Mother's motion to compel the Father's cooperation in discovery. We further describe the court's stated reasons for its rulings in analyzing the Mother's claims on appeal.


         The court began its rulings from the bench by declining to sanction the Father for manufacturing evidence, reasoning "there's just no evidence of that." The court's ruling reflected in part a colloquy between the court and the Mother's counsel in which counsel sought to have admitted into evidence the Mother's Sprint phone records for the claimed text-message dates and surrounding dates, as authenticated during the deposition of the Sprint representative, as well as the transcript of the Sprint representative's deposition. Counsel proffered (and the Mother now argues) that the Sprint records show that she did not send the text messages the Father appended to his opposition to the motion for contempt. The court declined to admit the records, citing "the [federal] rules of evidence, " stating that "it[] [was] not clear the declarant [i.e., the Sprint representative] was unavailable, " and reasoning that even if the declarant was unavailable, her deposition testimony had "not been subject to cross-examination, " because the Father had not been present at the deposition. The court overruled an objection by the Mother's counsel that the Father should not be allowed to "stymy a witness from putting . . . evidence on the record by not coming" to the deposition.[5]

         The Mother contends that the court's ruling was erroneous and "extraordinarily prejudicial to [the] Mother, " including with respect to the Father's credibility regarding his inability to comply with the visitation provisions of the 2012 Custody Order. The Mother also contends that the trial court erred in failing to sanction the Father under Rule 11 for the alleged fraud. We conclude that the Mother ultimately was not prejudiced by the court's ruling excluding the Sprint records because they would not have been sufficient to enable the Mother to succeed on her motion to sanction the Father for fraud (and because, for the reason explained below, we are vacating the ruling on the contempt motion). For that reason, we need not reach the question of whether it was error for the court to decline to admit the Sprint records.

         A party alleging fraud "must do so with particularity and must prove it by clear and convincing evidence." Park v. Sandwich Chef, Inc., 651 A.2d 798, 803 n.3 (D.C. 1994) (internal quotation marks omitted). Although the Sprint records were evidence tending to corroborate that the Mother did not send the text messages in question from her Sprint cell phone, the Father's testimony during the hearing indicated that the parties' children, even without activated cell phones, make calls and send texts through downloadable "phone apps, " including "Text Plus" and "Magic Jack."[6] We note that the messages attached to the Father's opposition to the contempt motion do not show anything that identifies them as having been sent via the Mother's Sprint phone number. (In that regard, they are quite unlike the text messages included in the Mother's Appendix at pages 410 to 412, which show a name or nickname or other identifying information in a header.) Because the Sprint records do not eliminate the possibility that the Mother (or someone else) sent the text messages through a device or method other than her Sprint cell phone, the Sprint records would not have enabled the Mother to prove by clear and convincing evidence that the Father manufactured evidence or committed perjury in ...

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