Estopina v. O'Brian

• Decision Date: 27 June 2013
• Docket Number: No. 11–FM–1233.,11–FM–1233.
• Citation: 68 A.3d 790
• Parties: Ramon ESTOPINA, Appellant, v. Susan O'BRIAN, Appellee.
• Court: D.C. Court of Appeals

68 A.3d 790

Ramon ESTOPINA, Appellant,

v.Susan O'BRIAN, Appellee.

No. 11–FM–1233.

District of Columbia Court of Appeals.

Argued Jan. 15, 2013.

Decided June 27, 2013.

Brett E. Cohen, Bethesda, MD, for appellant.

Wesley P. Gelb, with whom Anne Marie Jackson, Washington, DC, was on the brief, for appellee.

Before WASHINGTON, Chief Judge, OBERLY, Associate Judge, and PRYOR, Senior Judge.

Washington, Chief Judge:

Appellant Ramon Estopina appeals from the Superior Court judgment granting his ex-wife, appellee Susan O'Brian, joint legal custody and primary physical custody of their four-year-old child, I.E.O., and allowing Ms. O'Brian to move with I.E.O. from the District of Columbia to Virginia Beach, Virginia. Appellant argues that the trial court erred by failing to acknowledge the presumption in favor of joint custody in its Final Judgment and that it abused its discretion in determining that the best interests of the child were served by granting appellee primary physical custody and the right to relocate. For the reasons stated below, we affirm the trial court's judgment.

I.

Appellant and Ms. O'Brian were married in 2005 and their only child, I.E.O., was born in December 2006. The parties separated in 2009. Appellant filed his Complaint for Custody on April 19, 2010. Ms. O'Brian filed a Complaint for Legal Separation on June 30, 2010 and a Motion for Temporary Custody on July 29, 2010, seeking permission to relocate from the District of Columbia to Virginia Beach, Virginia, with I.E.O. The Superior Court consolidated these cases.

At trial, evidence was admitted that Ms. O'Brian stayed at home with the child from his birth until 2009. Appellant regularly traveled for work for extended periods during that time, but shared responsibility for daily tasks and care of I.E.O. with Ms. O'Brian, including attending doctors' appointments and events. The parties owned a home in Georgetown, but once they separated and appellant lost his job at the end of 2010,¹ appellant could no longer afford to pay the mortgage. Ms. O'Brian moved to Arlington, Virginia, but had difficulty affording her rent and great difficulty bringing I.E.O. to school in the District of Columbia before she had to be at work in the morning. Both parties agreed I.E.O. would have to change schools because they could not afford to continue sending I.E.O. to the private school in the District of Columbia where he had been attending preschool. Ms. O'Brian's sister testified that if Ms. O'Brian and I.E.O. moved to Virginia Beach, Virginia, the child could attend the Goddard School, an early childhood education school that she owned, where Ms. O'Brian would also be able to work as a teacher, thus allowing I.E.O. to attend free of charge. Appellant testified to a number of financially viable school options in the District of Columbia, some of which included Spanish immersion programs, which was important since both parents wanted the child exposed to Spanish culture. Appellant testified that some of the schools had guaranteed spots, but some involved a lottery process, including the schools with Spanish immersion programs. Ms. O'Brian's sister and father, who both lived in Virginia Beach, testified that they and the sister's children had a very close relationship with I.E.O. Ms. O'Brian and appellant did not have family in the District of Columbia.

The trial court granted joint legal custody and primary physical custody to Ms. O'Brian and allowed her to move with I.E.O. from the District of Columbia area to Virginia Beach. The trial court awarded appellant regular visitation consisting of alternating weekends commencing Friday evening and continuing until Sunday evening. In addition, the Final Judgment set forth an alternating holiday schedule as well as a regular summer vacation schedule that granted appellant five weeks with the child during the summer. Appellant was also granted daily access to speak to the child by phone or webcam.

In ordering this custody arrangement, the trial court placed special emphasis on the strong relationship I.E.O. had with his family in Virginia Beach. The trial court also gave significant weight to the fact that Ms. O'Brian was offered a teaching position at the Goddard School in Virginia Beach and would be able to take I.E.O. to school each day where he would also receive support in his transition from his aunt who owned the school. The court recognized appellant's strong desire to expose I.E.O. to the Spanish language and culture, and noted that although the Goddard School did not offer a Spanish immersion program, it did offer a Spanish class, and placement in the Goddard School was a guaranteed opportunity unlike placement in the District of Columbia programs. The trial court also gave significant weight to the fact that appellant traveled frequently for his job and had been able to maintain a strong relationship with his son despite the separation.

II.

Appellant argues that the trial court failed to acknowledge the presumption in favor of joint custody in its Final Judgment and failed to make findings that the presumption was rebutted, thus committing an error of law. Appellant's argument, however, is based on the false premise that joint physical custody was not awarded to the parties. Appellant argues that because each parent was not awarded equal time with I.E.O. and the custody arrangement did not allow flexibility to spend additional time with I.E.O. during the week, the trial court's award was not one of joint custody

This court, however, has held that a custody arrangement constitutes “joint physical custody” so long as it involves some sort of shared custody, such as primary physical custody awarded to one parent and visitation rights to another. See Hutchins v. Compton, 917 A.2d 680, 682 (D.C.2007) (citing Taylor v. Taylor, 306 Md. 290, 508 A.2d 964, 967 (1986)); see also Taylor, 508 A.2d at 967 (“Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.”). Here, the trial court awarded primary physical custody to appellee while appellant was granted regular visitation consisting of alternating weekends and an alternating holiday schedule. In addition, appellant was granted visitation with I.E.O. for five weeks during the summer. Because a custody arrangement that grants primary physical custody to one parent and visitation to the other is considered a joint custody arrangement, the trial court did not fail to honor the presumption in favor of joint custody and appellant's claim is without merit.

III.

Appellant also argues that the trial court abused its discretion in awarding primary physical custody to appellee and in allowing her to relocate to Virginia Beach. Specifically, appellant argues that the trial court gave undue weight to the value of educational opportunities available in Virginia Beach, the positive influence of the maternal family in Virginia Beach, and the frequency with which appellant traveled for work. Appellant further argues that the trial court gave too little weight to the benefit to the child of being raised by both parents and the disruption of moving a child away from one parent.

This court will reverse a trial court's custody decision only upon a finding of an abuse of discretion. Dumas v. Woods, 914 A.2d 676, 678 (D.C.2007). In order to determine whether the trial court abused its discretion, this court must look to whether the trial court considered “all relevant factors and no improper factor ... and then [to] evaluate whether the decision is supported by substantial reasoning ... drawn from a firm factual foundation in the record.” In re A.M., 589 A.2d 1252, 1257–58 (D.C.1991) (internal quotations and citations omitted). There is no abuse of discretion merely because there is evidence in the record that would have allowed this court to uphold the opposite conclusion. Prost v. Greene, 652 A.2d 621, 626 (D.C.1995).

Here, the trial court weighed all of the appropriate factors, and no inappropriate factors, in determining what custody arrangement would be in the best interests of the child. Indeed, the trial court thoroughly considered each of the factors necessary to determining the best interests of the child pursuant to D.C.Code § 16–914(a)(3) (2001):

“(A) the wishes of the child as to his or her custodian, where practicable;

(B) the wishes of the child's parent or parents as to the child's custody;

(C) the interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may emotionally or psychologically affect the child's best interest;

(D) the child's adjustment to his or her home, school, and community;

(E) the mental and physical health of all individuals involved;

(F) evidence of intrafamily offense as defined in section 16–1001(5);

(G) the capacity of the parents to communicate and reach shared decisions affecting the minor child's welfare;

(H) the willingness of the parents to share custody;

(I) the prior involvement of each parent in the child's life;

(J) the potential disruption of the child's social and school life;

(K) the geographical proximity of the parental homes as this relates to the practical considerations of the child's residential schedule;

(L) the demands of parental employment;

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