C.C. v. G.D.

320 A.3d 277

C.C., Appellant,

v.G.D., Appellee.

Nos. 20-FM-0484, 21-FM-0384, & 21-FM-0385

District of Columbia Court of Appeals.

Argued May 10, 2022

Decided August 15, 2024

Appeals from the Superior Court of the District of Columbia (2018-DRB-002060), (Hon. Carmen G. McLean, Trial Judge)

Matthew B. Andelman, Chevy Chase, MD, for appellant.

Gregory R. Nugent for appellee.

Before McLeese, Deahl, and Howard, Associate Judges.

Howard, Associate Judge:

After his divorce proceedings began, G.D. took one of his children, A.D., to see A.D.’s grandparents, who lived just north of New York City.¹ Just as A.D. was about to spend the weekend with his mother, C.C., as scheduled between the parties, G.D.’s great-aunt passed away. G.D. decided to keep A.D. to attend the funeral, but A.D. did not want to stay with G.D. and attend his great-aunt’s funeral. So that Saturday morning, while G.D. was picking up bagels, C.C. came and picked A.D. up, which A.D.’s grandmother witnessed. Upon learning this, G.D. emailed C.C. asking: "Where are you taking [A.D.]? What are you thinking?" An hour later, C.C. replied that she was driving A.D. back to the District of Columbia.

This incident was part of a divorce and custody matter that started in 2018, and was later governed by a pendente lite agreement (adopted by the trial court as a consent order) for nearly two years. It was tried beginning in 2019, concluding in 2020 due in part to the COVID-19 pandemic. We now consider four issues presented by the case.

First, we consider whether the described incident was an act of parental concealment.² See D.C. Code § 16-1022(a). While the trial court found that the parental concealment subsection had been violated, we determine that the plain meaning of concealment does not support that conclusion.

Second, we consider whether the trial court acted within its discretion when it found C.C. in contempt for not following a dispute resolution provision from the parties’ Consent Order, including when the court imposed a $3,000 fine for not doing so. We conclude that the trial court acted within its discretion to enforce a dispute resolution process to which both parties consented. And we disagree with C.C. that the trial court’s order amounted to a finding of criminal rather than civil contempt since, among other reasons, the fine served a compensatory purpose.

Third, we consider whether the trial court abused its discretion when it required both parties to pay for private school tuition for A.D.—who was attending a public school at the time of the trial—without making adequate findings. We agree with C.C. and, in turn, we remand the trial court’s findings of child support.

Fourth, we consider whether the trial court appropriately awarded attorney’s fees and costs. We vacate the trial court’s awards of attorney’s fees and costs related to the trial court’s conclusions of law on child custody and child support and to the temporary custody motions, but affirm the awards of attorney’s fees and costs that relate to G.D.’s contempt motions.

I. Background³

C.C. and G.D. married in 2006. Over time, their marriage became fraught with conflict, and the two separated in June 2018. Following their separation, C.C. and G.D. did not reach a pendente lite temporary custody agreement over their two children, R.D. and A.D., until October 2018. The summer before their agreement, however, a custody dispute emerged between the parents.

A. C.C. Picks Up A.D.

During the week of July 30, 2018, A.D. went to a camp at the Bronx Zoo in New York City. While at the camp, A.D. stayed with his paternal grandparents in New Rochelle, New York. G.D. had planned to attend the end-of-camp event with A.D. on Friday, August 3, and had told C.C. in a July 26 email that "[t]he children will come back to you on Saturday, 4 August."⁴

Later that week, G.D. changed these plans when his great-aunt passed away. Her funeral was set for that Sunday, August 5, in Boston. On Friday, August 3, G.D. went to New York. When he arrived, G.D. told A.D. that they would not be returning home to Washington, D.C. the next day; rather, they were going to Boston to attend the funeral. A.D. became upset and asked to call his mother. A.D. talked on the phone for less than twenty minutes with C.C.

The next morning, Saturday, August 4, G.D. left his parents’ house to get some bagels for breakfast. A.D. was supposed to go with G.D., but C.C. called. While still on the phone, A.D. told his father to go without him. G.D. left the house, with A.D. in his grandparents’ care.

After G.D. left, A.D. told his grandmother that he needed some fresh air and went out the back door. A.D.’s grandmother then saw C.C.—who had driven up earlier that morning from D.C.—get out of her car, hug A.D., and drive away with him. The child’s grandmother called G.D. and told him that C.C. came and picked A.D. up. G.D. then emailed C.C. at 8:42 a.m., stating: "[C.C.], What are you doing? Where are you taking [A.D.]? What are you thinking?"

An hour later, C.C. replied by email. She wrote about how A.D. had been upset at having to attend the funeral:

As you know, [A.D.] was crying a lot last night when he was talking on the phone with me. He said that he told you that he wanted to go back to DC to see me and not go to the funeral for [his great aunt]. In response, you apparently told him something to the effect of, "Too bad. Going to the funeral is more important than seeing your mom."

Toward the end of the phone call, [A.D.] asked me to come and pick him up last night, and I told him that I would be there as soon as possible.

The trial court later concluded that "[a]t no point between [A.DJ’s call to C.C. Friday night and her picking him up Saturday morning in New York did C.C. ever attempt to communicate with G.D. regarding her desire and/or plans to pick up [A.D.]."

B. The Consent Order and Motions for Contempt

Three days later, on August 7, 2018, G.D. filed an emergency motion for pendente lite legal and physical custody and requested a same-day hearing. The trial court denied the request for the same-day hearing and denied the emergency motion as moot, but advised the parties about the District of Columbia’s parental concealment law.

About two months later, on October 9, G.D. and C.C. engaged a parent coordinator and agreed to a temporary custody arrangement entitled "Pendente Lite Agreement Regarding Child Custody and Certain Interim Financial Issues" ("Agreement"). The Agreement set forth a calendar through January 2019 for physical custody of R.D. and A.D.; the parties would then maintain a fifty-fifty arrangement during the rest of the school year and develop a summer schedule with the help of the parent coordinator.

The Agreement also contained a dispute resolution process. If "any dispute ar[ose] concerning either child, including any dispute over interpretation or implementation of the physical custody schedule or any other decision that substantially affects a child’s general welfare," either G.D. or C.C. could request assistance from Rebecca Snyder, the parent coordinator "who was selected mutually by [G.D.] and [C.C.] to resolve such disputes." Paragraph 4.5.2 of the Agreement further provided that, "[i]f a party fails to timely meet with the [parent coordinator] within the time period for consultation, the other party shall be entitled to make the decision on the subject in dispute, which shall be binding unless and until it is overturned by a court of competent jurisdiction."

About two weeks after G.D. and C.C. signed the Agreement, the trial court entered a consent order adopting the Agreement ("Consent Order"). The Consent Order ultimately formed the basis for three motions for contempt filed by G.D.

The first motion arose as the parties attempted to develop a custody schedule for the fall of 2019. G.D.’s counsel sent a letter to C.C.’s counsel on September 12, 2019, arguing that C.C. refused to meet with the parent coordinator over a custody schedule and so triggered the Agreement’s dispute resolution process. G.D.’s counsel also applied Paragraph 4.5.2 and set forth a custody schedule. Two days later, G.D. filed a motion for contempt, arguing that another paragraph concerning mediation applied. On October 7, as the parties were preparing for trial, the trial court found C.C. in contempt—holding that the dispute resolution process applied—and provided that C.C. could purge her contempt by following the custody schedule set forth in the September letter. The next week, trial began. Trial continued for four more days, and by November 14, the parties were awaiting the court’s findings and order.

Meanwhile, the grounds for the Second Motion for Contempt arose since the September letter had not addressed custody schedules after January 2020. G.D.’s counsel wrote C.C.’s counsel on December 15, 2019, to set a meeting with the parent coordinator to discuss a schedule. About two weeks later, on December 31, 2019, G.D.’s counsel wrote a letter alleging that C.C. refused to meet with the parent coordinator. Invoking the dispute resolution provision under Paragraph 4.5.2, G.D. set forth a custody schedule and terms concerning the children’s usage of devices like computers, tablets, and cell phones. The custody schedule and device usage formed the basis for the second motion for contempt. In her opposition, C.C. contended that she had submitted a proposed physical custody schedule on November 1, 2019, and the parties were awaiting the court’s decision after the most recent hearing on November 14. On March 5, 2020, about two months after G.D. filed his motion, the trial court set an additional trial date to address the motions.

Then, in light of the COVID-19 pandemic, the court continued that date to June 8, 2020. The court also ordered that "all other aspects of Pendente Lite Consent Order Regarding Custody and Support, issued October 19, 2018, as modified by the Court’s Order Granting Motion for Contempt, issued October 7, 2019 (collectiv...