Moore v. Moore

Decision Date29 August 1978
Docket NumberNo. 12312.,12312.
Citation391 A.2d 762
PartiesReuben W. MOORE, Jr., Appellant, v. Sidney H. MOORE, Appellee.
CourtD.C. Court of Appeals

Thomas Fortune Fay, Chevy Chase, Md., with whom B. Van Denburg Hall, Fairfax, Va., and William Thompson, Washington, D. C., were on brief, for appellant.

Pamela B. Dulles, Washington, D. C., with whom Elizabeth Guhring, Washington, D. C., was on brief, for appellee.

Before GALLAGHER and FERREN, Associate Judges, and MOULTRIE, Chief Judge, Superior Court of the District of Columbia.*

FERREN, Associate Judge:

This is a custody case brought by the father. After trial, the court permitted the mother to amend her pleadings with a counterclaim conforming to the evidence, since the court at the conclusion of trial had orally awarded custody of the minor child to the mother and ordered the father to pay child support. The court also granted the" father visitation rights, conditioned on a $7,500 bond. Later, the court awarded the mother separate maintenance, as well as her counsel fees. Appellant, the father, argues primarily that the court improperly permitted appellee to amend her pleadings, pursuant to Super.Ct.Dom.Rel.R. 15(b), and that, in any event, the evidence of record did not support the court's findings and conclusions.

We conclude that the trial court properly allowed post-trial amendment of the pleadings to permit appellee, the mother, to claim custody, child support, a bond for visitation rights, and attorneys' fees. We further conclude, however, that the court erred in permitting amendment of the pleadings to claim separate maintenance. We conclude, finally, that the record is not adequate to support the court's particular assessments of child support, the visitation rights bond, and counsel fees. The case accordingly must be remanded for further proceedings.

I. The Facts; Proceedings to Date

Reuben and Sidney Moore, plaintiff-appellant and defendant-appellee, respectively, were married on October 19, 1968, in the District of Columbia. Their only child, Jessica Moore, was born on August 4, 1973. The marriage deteriorated, especially in the fall of 1975 when Sidney Moore learned of her husband's infidelity, whereupon she ended their conjugal relations. According to Mrs. Moore, shortly thereafter — sometime during early December — Reuben Moore stopped replenishing the family checking account. The culmination of this marital decline occurred in late December, 1975, when Sidney Moore moved with Jessica to her parents' home in Schenectady, New York.

Reuben Moore soon initiated a custody action in New York. The court orally granted temporary custody of Jessica to Mrs. Moore, with visitation rights for Mr. Moore. On February 22, 1976, pursuant to a plan aided by a detective he had hired, Reuben Moore took Jessica from the physical custody of her maternal grandfather and brought her to Washington, D.C.1 Sidney Moore followed, but Mr. Moore refused to return the child. On February 26, 1976, Sidney Moore initiated a habeas corpus proceeding in the District of Columbia seeking custody of Jessica.

At this time Reuben Moore took Jessica, then 2½ years old, on a 3½ week excursion to Europe and the Bahamas. After his return, while leaving a hospital where he had been visiting his ill father on March 17, 1976, Reuben Moore was confronted and grabbed by his wife and her parents. They wrested control of the child from him and returned, with Jessica, to Schenectady.

On April 2, 1976, Reuben Moore filed an opposition to his wife's habeas corpus petition. He also filed the present action: a complaint for custody. Sidney Moore sought first to have the suit dismissed on jurisdictional grounds; but after the New York court suggested that she submit the pending custody issues to the District of Columbia court, she withdrew the jurisdictional challenge and answered the complaint on June 30, 1976. The matter came to trial on October 20-21, 1976, in the Family Division of the Superior Court.

At the conclusion of trial, the court orally awarded custody and $500 per month child support to the defendant, Sidney Moore. The judge, recognizing that "there ha[d] not been an affirmative pleading requiring alimony" did not award any support for Mrs. Moore herself but, somewhat cryptically, remarked that "the defendant may yet have her opportunity to pursue the issue of alimony" (actually separate maintenance). The court then asked for motion papers on the issue of awarding attorneys' fees to defendant, reserving judgment on that issue until a later date. The court also granted Reuben Moore visitation rights, conditioned on his posting a $7,500 bond.

On October 27, 1976, Sidney Moore filed a motion to conform the pleadings to the evidence, Super.Ct.Dom.Rel.R. 15(b), as well as a motion for award of counsel fees. In the first motion, Mrs. Moore sought to assert a counterclaim for custody, child support, separate maintenance, and counsel fees (in connection with the District of Columbia custody litigation only). In the second motion she asked for the same counsel fees, specified the reasons for requesting them, and itemized the matters and amounts claimed.

By written order of February 28, 1977, the court granted the motion to conform. It awarded to defendant Sidney Moore custody of Jessica, child support of $500 per month, separate maintenance of $500 per month, and counsel fees in the amount requested, $5,916.65. The court granted plaintiff Reuben Moore visitation rights, subject to the continued posting of a $7,500 bond. The court's order included extensive findings of fact and conclusions of law. The court subsequently denied Reuben Moore's motions for stay of the entry of judgment and for a new trial, and issued a written memorandum of its reasons. Plaintiff Reuben Moore now appeals.

II. Alleged Trial Court Reliance Upon Improper Presumptions

Appellant maintains that the trial court improperly accorded presumptive significance to the factors of "motherhood" and "physical possession" of the child in determining the question of future custody. We disagree.

Neither the oral ruling of the judge nor the court's written findings of fact and conclusions of law reflect an express or implied reliance upon the fact that Mrs. Moore was the child's mother, or that she had actual possession of Jessica for most of the period between her departure from the family home and the trial. The court's mere inclusion of the relevant fact that the child had resided with the mother "except for a brief period of time, for most of the child's life," does not indicate that it was a dispositive or even influential consideration, or, as appellant contends, that the court believed either maternity or present physical possession was presumptively significant to the custody determination.

In summary, it does not appear that the trial court in fact employed either of the allegedly improper presumptions in determining the issues of the suit.2

III. Alleged Trial Court Reliance on the New York Court Order

Appellant makes much of the fact that when he took his daughter from her maternal grandfather on February 22, 1976, there was no outstanding written court order granting custody to his wife. See note 1, supra. He argues that Mrs. Moore's reliance upon the New York court's temporary custody order of February 23 was therefore fraudulent, in that she misled the District of Columbia court into believing, erroneously, that Mr. Moore had kidnapped the child in violation of an outstanding judicial decree. He further maintains that the trial court erred by relying upon this faulty factual premise in rendering its decision.

Mrs. Moore did have what was asserted to be a temporary custody order marked at trial, but the court sustained objection to its admission on authentication grounds. As a result, it was never entered into evidence. It appears that the trial court did not consider Mr. Moore's alleged violation of an outstanding written court order in resolving any of the issues. In fact, apparently the court's decision was not even influenced by Mr. Moore's conceded disregard of the New York court's oral temporary custody order of December 30, 1975. The trial court, in fact, expressly disavowed any reliance on the New York order when, on April 7, 1977, it issued the memorandum and order denying Reuben Moore's new trial motion.

The court did refer in its memorandum to the fact that "plaintiff is quite capable of, again, taking the child from the jurisdiction of this court or any other court of the United States. He has a history of having done so." But this finding was amply supported by both parties' evidence and does not reflect a trial court understanding that Mr. Moore, in doing so, had violated a judicial decree.

Even if we assume, moreover for the sake of argument, that Mrs. Moore misrepresented the status of the New York judicial proceedings, we cannot find that it had any effect upon the deliberations and decision of the trial judge in this case. We therefore reject this claim of error.

IV. Post-Trial Amendment of the Pleadings

We turn now to the principal issue on appeal: the court's granting of appellee Sidney Moore's motions to conform the pleadings to the evidence and to receive an award of attorneys' fees.

At the close of trial, the trial court indicated its belief that the custody and child support matters, including visitation rights and related bond, were ripe for resolution. The court, however, indicated some hesitancy about the propriety of deciding the separate maintenance and attorneys' fees questions on the state of the evidence at that time. Nonetheless, the trial judge entertained and granted appellee's post-trial motion to conform the pleadings to the evidence, including a counterclaim for custody, child support, separate maintenance, and attorneys' fees. The judge then proceeded to resolve not only the...

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