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Cheek v. Edwards

Court of Appeals of The District of Columbia

September 5, 2019

Keith L. Cheek, Jr., Appellant
v.
Nicole Edwards, Appellee.

          Submitted October 12, 2018

          Appeal from the Superior Court of the District of Columbia (DRB-116-17) (Hon. Michael K. O'Keefe, Trial Judge)

          Dennis Lane, with whom Marcia Stanford was on the brief, for appellant.

          Marisa C. Maleck for appellee.

          Before Thompson and Easterly, Associate Judges, and Ruiz, Senior Judge.

          EASTERLY, ASSOCIATE JUDGE.

         Appellant Keith L. Cheek challenges an order holding him in civil contempt for violating a temporary custody order, granting to appellee Nicole Edwards permanent sole legal and physical custody of their minor children, and leaving his visitation rights to Ms. Edwards's sole discretion. Mr. Cheek does not contest the trial court's finding that he violated the temporary custody order, but he argues that the court's decision-in the midst of his civil contempt hearing-to modify the permanent custody order (that had, by then, superseded the temporary custody order) violated his due process right to notice and an opportunity to be heard. He further argues that the modification of the permanent custody order was punitive in nature, and thus an inappropriate remedy for civil contempt. Lastly, he challenges the court's decision to delegate to Ms. Edwards the authority to regulate visitation. We reverse and remand.

         I. Facts and Procedural History

         Mr. Cheek and Ms. Edwards, formerly married, have two minor children. After their divorce, they agreed to share custody, but they could not agree on where the children should primarily reside during the school year-with Mr. Cheek in the District or with Ms. Edwards in Gaithersburg, Maryland. After a three-day trial in August 2017, the trial court awarded the parties joint legal and physical custody of their children, and ordered that the children would primarily reside with Ms. Edwards. In so doing, the court found "that both of these parents love these kids incredibly much and [that] up until last January they did a pretty good job of co-parenting." The court determined the statutory considerations did not favor one side over the other, with one exception. The court acknowledged that there was evidence that Mr. Cheek had acted violently in the home and that his commission of an intrafamily offense created a rebuttable presumption that joint custody would not be in the best interests of the children. See D.C. Code § 16-914(a)(2) (2012 Repl.). In light of its ultimate ruling, the court appeared to conclude, however, that that presumption had been rebutted. In its oral ruling, the court explained "even [Ms. Edwards] is saying joint custody, not sole custody. She's not saying don't let these children around Mr. Cheek[] because he is a violent person. She's saying we've had problems in the past, but I know the children love him and he still needs to be involved in their life." Instead, the court used the intrafamily offense evidence as a "tiebreaker" for its decision regarding the children's primary residence.

         After the court made its oral ruling, [1] but before it issued its written Findings of Fact, Conclusions of Law and Permanent Custody Order on September 14, 2017, Ms. Edwards filed a motion for civil contempt, arguing that Mr. Cheek had violated the trial court's directive that the parties not "harass, assault, threaten, or stalk" each other.[2] Ms. Edwards alleged that, on September 3, 2017, when she and Mr. Cheek met to exchange the children, Mr. Cheek struck her in the jaw with his fist; she provided the court with a copy of the temporary protective order she had obtained in the General District Court of Montgomery County, and she informed the court that Mr. Cheek faced criminal charges for second-degree assault. Ms. Edwards also asserted that Mr. Cheek had sent her a "deluge of unprovoked text messages demonstrating increasing hostility towards her."

         Ms. Edwards asked the court to "order the following remedial relief":

• Domestic violence prevention and parenting courses for Mr. Cheek;
• A requirement in the visitation schedule that all future custody exchanges take place at a third-party location at a place of Ms. Edwards's choosing;
• In lieu of attorney's fees, $500.00 payable to Ms. Edwards to be used for psychological counseling services ...

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