Elena L. v. David a.
| Decision Date | 10 March 2011 |
| Docket Number | No. 10-FM-375,No. 09-FM-1337,No. 09-FM-1152,09-FM-1152,09-FM-1337,10-FM-375 |
| Parties | Elena L. Jordan, Appellant, v. David a. Jordan, Appellee. |
| Court | D.C. Court of Appeals |
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Appeals from the Superior Court
of the District of Columbia
(Hon. Hiram Puig-Lugo, Trial Judge)
Joan S. Meier, Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), with whom Elizabeth S. Liu, DV LEAP, and Avery E. Roselle were on the brief, for appellant in appeal Nos. 09-FM-1152 and 09-FM-1337.
Kerri L. Ruttenberg, with whom Danielle M. Hohos and Joan S. Meier, DV LEAP, were on the brief, for appellant in appeal No. 10-FM-375.
Gail B. Landau for appellee in appeal Nos. 09-FM-1152, 09-FM-1337, and 10-FM-375.
Caroline Judge Mehta, Kenneth E. Noyes, and Sue Ryan, on behalf of amici curiae, New York Legal Assistance Group, InMotion, Justice for Children, Women's Justice Center at Pace University School of Law, Legal Services NYC, D.C. Coalition Against Domestic Violence, and Women Empowered Against Violence, Inc., filed a brief in support of appellant in appeal No. 09-FM-1152.
Margaret J. McKinney, Kristin Henrikson, and Samantha H. Kravitz, on behalf of amicus curiae, the Bar Association of the District of Columbia, filed a brief in support of neither party in appeal No. 10-FM-375.
Before Fisher and Blackburne-Rigsby, Associate Judges, and Pan, Associate Judge, Superior Court of the District of Columbia.*
Superior Court of the District of Columbia: After an 11-year marriage, appellant Elena L. Jordan and appellee David A. Jordan divorced in May 2009. These consolidated appeals arise from the ensuing proceedings to determine custody arrangements for the parties' two daughters. Following a highly contentious custody trial that spanned nine days in July and August of 2009, the trial court awarded joint legal and physical custody to Ms. Jordan and Mr. Jordan. Because the parties were unable to reach decisions together amicably, the trial court appointed a "parenting coordinator" to mediate and resolve any disputes concerning the children. Ms. Jordan appeals both the award of joint custody and the appointment of the parenting coordinator. She argues that the trial court did not adequately consider allegations and findings of domestic violence when it granted joint custody to Mr. Jordan, and that the trial court did not have authority to appoint a parenting coordinator over her objection. For the reasons discussed infra, we affirm the judgment of the trial court with respect to the award of joint custody and the appointment of a parenting coordinator.
Ms. Jordan and Mr. Jordan met while they were both graduate students at Vanderbilt University in Tennessee. They were married in 1997 in Russia, relocated to Maryland in 1999, and have resided in the District of Columbia since 2001. Both are employed professionals with masters degrees in business, and each has substantial income that is roughly equal to the other's. The parties have two daughters: E.J., who is now 12 years old; and A.J., who is now five years old.
The trial court characterized the parties' marriage as "fraught with conflict." Nevertheless, during the marriage, "[t]he relationships between the girls and both parents were normal and equal." On August 12, 2008, Mr. Jordan asked for a divorce, and he moved out of the family's home about two weeks later. Thereafter, on September 29, 2008, Mr. Jordan agreed to a consent civil protection order without admissions, under which he was required to stay away from Ms. Jordan.
After the parties separated, E.J. and A.J. resided with Ms. Jordan and had visits with Mr. Jordan. As the dissolution of the marriage devolved into "a high conflict situation," the relationship between Mr. Jordan and his daughters deteriorated. Due to the proceedings related to the civil protection order, Mr. Jordan did not see the children for approximatelythree weeks. Subsequently, during the girls' first overnight visit with Mr. Jordan on October 3, 2008, E.J. contacted Ms. Jordan to complain that Mr. Jordan had shaken her. Ms. Jordan called the police and a child-abuse hotline, and went to Mr. Jordan's residence. The police did not arrest Mr. Jordan and allowed the children to remain with him. A social worker from Child Protective Services investigated the incident. She concluded that E.J.'s allegations were "unfounded" and that E.J. appeared "to be coached or otherwise influenced."
Thereafter, interactions between E.J. and Mr. Jordan were strained. E.J. developed "an unhealthy enmeshment" with her mother and was unable to distinguish her own needs from those of Ms. Jordan. E.J. was privy to adult information about the relationship between her parents, how her father behaved, and how her mother felt about the situation. Meanwhile, Ms. Jordan did not understand how her actions affected E.J. As a result, E.J.'s perceptions of Mr. Jordan became distorted, and she became "alienated" from her father. She "challenge[d] and degrade[d]" Mr. Jordan during visits, asserted that she wanted no contact with him, and refused to speak to him during court-ordered reunification therapy. E.J pressured A.J. to treat Mr. Jordan the same way, and "glare[d]" at A.J. if she did not comply. A.J. was confused. She wanted to spend time with her father, but she sought E.J.'s approval. When A.J. was alone with Mr. Jordan, she was "loving and affectionate" with him; but she copied E.J.'s behavior when E.J. was present. A.J. became "trapped" by the conflicting signals sent by her family members. She manifested speech problems and a delayin learning the English language.1
During the pendency of the proceedings in the trial court, the court implemented a visitation plan under which the girls had overnight visits with Mr. Jordan every other weekend and regular contact with him during the week. E.J. spent much of her time during the visits with her father sending text messages to Ms. Jordan and refusing to engage with Mr. Jordan. A.J. parroted E.J.'s behavior. When the court adjusted the schedule to allow each girl to spend time alone with Mr. Jordan, A.J. had successful overnight visits with Mr. Jordan, but E.J.'s contact with Mr. Jordan dwindled to one therapy session and one additional encounter per week. For her part, Ms. Jordan was unable to support the goal of reunification for E.J. and Mr. Jordan; and Ms. Jordan tried to "fire" the reunification therapist who was working with them.2
During the custody trial, the court heard testimony about "several violent episodes." The court found that during two of these episodes, Mr. Jordan committed intrafamilyoffenses under D.C. Code § 16-1001(8) (2001).3 The first intrafamily offense occurred in July 2005, when the parties got into an argument over some chicken that Mr. Jordan had picked up for dinner. Mr. Jordan "lost his temper, grabbed [Ms. Jordan's] upper arms and shook her... us[ing] enough pressure to bruise her right triceps." The second offense occurred on August 3, 2008, during an argument about cleaning the kitchen. Mr. Jordan "put a dish towel around the back of [Ms. Jordan's] neck while the parties argued face to face." The trial court acknowledged that it had heard testimony about other "incidents where [Mr. Jordan had] lost his temper" but found that those incidents "do not fall within the definition of domestic violence in the District of Columbia."
Other evidence in the record provided additional information about the instances of violence. Dr. William B. Zuckerman, a licensed clinical psychologist, was appointed by the court to conduct a custody evaluation.4 Dr. Zuckerman opined that the type of domestic violence perpetrated by Mr. Jordan was "situational"; that the incidents were "the type ofinterparental conflict that sometimes occurs amidst the intense emotion accompanying family dissolution"; and that the prior actions were not a predictor of future violence by Mr. Jordan. Dr. Zuckerman characterized Mr. Jordan's behavior as domestic "violence with a small v"; and asserted that "there is nothing in Mr. Jordan's history or test material which would suggest that he is any more likely than most to be a danger to others, nor is he likely to be inordinately neglectful." Furthermore, Dr. Zuckerman commented that "whatever shortcoming existed in Mr. Jordan's ability to parent..., his warm and positive qualities predominate, and by all accounts, until the separation, he enjoyed a reasonable relationship with both daughters."
Dr. Zuckerman also reported that he had solicited input from Dr. Ruth Zitner, the psychologist who had engaged in family-reunification therapy with Mr. Jordan and E.J. Dr. Zitner had opined that ; and that Mr. Jordan did "not [give] any impression whatsoever that he could have behaved in a way that has been seriously threatening to either [Ms.] Jordan or [E.J.]." At trial, Dr. Zitner testified that the parties "had some discrete episodes where they fought and did get physical, but that this was not a family in which there was domestic violence." Other mental-health professionals consulted by Dr. Zuckerman also agreed that Mr. Jordan did not pose a danger to Ms. Jordan or his daughters: (1) Dr. Yulia Aleshina, a clinical psychologist who had treated E.J., stated that she did not feel that Mr. Jordan "is inany way dangerous to his daughter"; (2) Jonah Green, a social worker who had worked with the parties as a "reunification therapist," stated that he "did not view Mr. Jordan as a dangerous individual"; and (3) Dr. Martha Gibbons, a clinical psychologist who saw Mr. Jordan in individual therapy, stated...
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