D.D v. M.T.

• Citation: 550 A.2d 37
• Decision Date: 08 November 1988
• Docket Number: No. 87-37.,No. 87-675.,87-37.,87-675.
• Court: D.C. Court of Appeals
• Parties: D.D., Appellant, v. M.T., Appellee.<SMALL><SUP>*</SUP></SMALL>

Page 37

550 A.2d 37

D.D., Appellant, v. M.T., Appellee.^*

No. 87-37.

No. 87-675.

District of Columbia Court of Appeals.

Argued June 22, 1988.

Decided November 8, 1988.

COPYRIGHT MATERIAL OMITTED

Donald B. Verilli, Jr., pro hac vice, with whom Donald N. Bersoff, Washington, D.C., was on the brief, for appellant. Ronna Lee Beck, Washington, D.C., entered an appearance for appellant.

Robert Case Liotta, Washington, D.C., for appellee.

Before BELSON and SCHWELB, Associate Judges, and PRYOR, Senior Judge.^**

I

SCHWELB, Associate Judge:

Appellant D.D. (the mother) asks us to reverse a judgment holding her in civil contempt for noncompliance with a courtapproved Stipulation and/or Order¹ directing that the passport of her son L.T., now seven years of age, be held in escrow by her counsel until further order of court or mutual agreement of the parties. The purpose of the escrow provision was to assure that L.T. would not be taken out of the country, to the prejudice of any visitation rights of appellee M.T. (the father).

In her initial brief in this court, prior to oral argument, the mother, who has been represented by counsel throughout, grounded her appeal on four separate contentions, all of which were predicated on the assumption that the "Stipulation and/or Order" constituted an order of the court binding on her. That assumption also characterized the mother's position in the trial court.

During oral argument, a member of this court, sua sponte, raised two additional issues not previously addressed by the parties. The first of these issues was whether the document signed by the parties and the court on November 14, 1985, with which the mother allegedly failed to comply, was a stipulation, enforceable only through contractual remedies, or a court order enforceable by contempt. The second issue so raised was whether, assuming that the document was a court order, it was enforceable against the mother (as distinguished from the mother's attorney, to whom the specific command said to have been violated was directed). The parties were permitted to, and did, file supplemental post-argument briefs on these issues.

Having considered these submissions, we hold that all of the contentions made in the mother's original brief are without merit. Although the new arguments in the mother's supplemental brief are somewhat more persuasive, no clear miscarriage of justice would result from our holding the mother to the positions taken by her counsel both in the trial court and in this court prior to oral argument. Accordingly, we affirm.

II

D.D. and M.T. were married in the District of Columbia on October 2, 1980. L.T. is their only child. The parties separated in July 1985. The mother filed for a divorce, and the father counterclaimed for the same relief. Each party requested custody of L.T. and sought child support from the other parent.

On November 14, 1985, to quote the mother's brief on appeal,

D.D. and M.T. agreed to a stipulated order to resolve then pending issues about pendente lite relief with respect to custody, visitation, and support of their minor child, L.T.

The "stipulated order" to which the mother was referring was headed "Stipulation" and contained language generally cast in terms of what each party was agreeing to do, rather than in terms of judicial command. Paragraph 6 provided:

The parties hereby reaffirm their dedication to the principle that they, rather than judges, doctors or psychologists, are responsible for and best able to make sound decisions for their son, with expert advice where appropriate. Accordingly, they agree that they will attempt to work together, cooperatively and in good faith, to foster the best interests of their son. However, each party reserves the right to have this Court make a final determination as to L.T.'s custody and related matters at any time.

The document was signed by Judge Herbert B. Dixon, who wrote in the date (11/14/85). The names and signatures of each of the parties appear below the word "Approved,"² and the names and signatures of the attorneys follow below the word "SEEN." Substantively, the instrument signed by Judge Dixon provided that the parties would seek necessary therapy for L.T., who was having trouble adjusting to the separation of his parents, and would obtain the recommendation of a mutually agreeable mental health therapist concerning, among other things, a residential program for him. The parties also agreed to "consider carefully all of the therapist's recommendations." Paragraph 10 provided that:

Counsel for Plaintiff, Elizabeth Guhring, or any substitute or successor counsel, will hold the child's passport in escrow until further order of the Court or mutual agreement of the parties.

In conformity with this provision, the mother deposited L.T.'s passport with her counsel.

On March 28, 1986, the parties agreed to the entry of a consent Pendente Lite Order of Custody, Visitation and Support. This order provided as follows:

1. The plaintiff shall have temporary custody of the minor child pending the final divorce hearing.

2. The defendant shall have visitation with the minor child as recommended by the child's therapist, DR. BELINDA STRAIGHT, pending the divorce hearing.

3. The defendant shall pay child support by paying directly to the Westmoreland Children's Center the monthly tuition commencing in March, 1986 of approximately Three Hundred Sixty Dollars ($360) per month, pending the final divorce.

Nothing in the new order explicitly addressed the status of L.T.'s passport.

Meanwhile, on March 26, 1986, two days prior to the date that the new order was signed by Judge Wertheim, Dr. Straight had recommended that the father's visitation with the child be suspended, based on her determination that he had sexually abused the child. The father vigorously contested this accusation. That the child had been sexually abused by someone was later confirmed by Dr. Ronald Bashian, a pediatrician at the Yater Clinic. Dr. Bashian diagnosed L.T. as having gonorrhea of the throat, a sexually transmitted disease. In spite of the dispute as to the identity of the abuser, visitation was suspended in conformity with the provision of the pendente lite order in which the parties were required to follow Dr. Straight's recommendation.

Later in the spring of 1986, the mother, who is an anthropologist and travels frequently, told Ms. Guhring that she wanted to leave the country with L.T. in connection with her work. Ms. Guhring instructed the mother that Dr. Straight was responsible for determining whether this would be permissible. Ms. Guhring released L.T.'s passport to the mother after the mother advised her that Dr. Straight had given permission for the trip. The mother then traveled out of the country with L.T. from May 22, 1986 to June 16, 1986, for professional reasons. Upon her return, she gave the passport back to Ms. Guhring.

On September 16, 1986, the father filed a motion asking that the mother be held in contempt of court for violating the passport restriction contained in the November 14, 1985 order. On October 27, 1986, Judge Sylvia Bacon issued an oral ruling resolving the issues presented in the crosscomplaints for divorce. Judge Bacon granted the mother an absolute divorce, awarded her custody of L.T., and ordered the father to make support payments. In addition, the judge found that the mother had not proved that the father had abused L.T.,³ ordered that the father be permitted to visit L.T. under therapeutic supervision, and called upon the parties to develop a flexible plan for further visitation. This ruling provided final resolution of all issues dealt with in the November 14, 1985 order. At the October 27 hearing, Judge Bacon also orally found that the mother was in contempt of court and invited comment from the parties on appropriate sanctions.

On December 16, 1986, Judge Bacon issued a written order holding the mother in civil⁴ contempt of court and requiring her to deposit L.T.'s passport with the Clerk of the Court, to refrain from obtaining another passport, and to obtain prior court approval for any travel outside the United States for the child. The mother complied with this order as soon as she became aware of it. On January 9, 1987, she moved, pursuant to Super.Ct.Civ.R. 60, for reconsideration of the contempt citation. Six days later, she filed a notice of appeal. On April 10, 1987, Judge Bacon issued an order denying the motion on the grounds that she lacked jurisdiction because a notice of appeal had been filed and, alternatively, on the merits. The mother then filed a second notice of appeal, this one from the order denying reconsideration. The two appeals were consolidated and are now before us.

III

Before considering either the mother's original arguments or those made in her supplemental submission, we briefly address two jurisdictional matters not raised by either party.

A. As noted above, the mother has appealed both Judge Bacon's order of December 16, 1986 holding her in civil contempt and requiring her, among other things, to deliver L.T.'s passport to the Clerk, and the order of April 10, 1987 denying reconsideration. We think that Judge Bacon was without authority to grant the motion for reconsideration because it was not filed within ten days, as required by Super.Ct.Civ.R. 59(e). See generally Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 803, et seq. (D.C. 1984), holding that where a movant is seeking relief from the original order on the basis of error of law, and not citing new or changed circumstances, the motion is properly made pursuant to Rule 59(e). Accordingly, we affirm her denial of the motion on the grounds that she lacked jurisdiction because that motion was untimely.⁵

B. In this court, the mother has complained as much about the indignity of having been found in contempt of court as about the sanction imposed, namely the requirement that she deposit the passport with...