Sampson v. Johnson
| Decision Date | 25 March 2004 |
| Docket Number | No. 00-FM-183, No. 00-FM-689, No. 00-FM-1697. |
| Citation | 846 A.2d 278 |
| Parties | Kyle J. SAMPSON, Appellant, v. Elizabeth JOHNSON, Appellee. |
| Court | D.C. Court of Appeals |
Susan H. Rosenau, Washington, for appellant.
Elizabeth Sarah Gere, Washington, with whom Christopher M. Ellis was on the brief, for appellee.
Before STEADMAN, SCHWELB and RUIZ, Associate Judges.
Kyle J. Sampson, the father of Myriam Sampson, born December 18, 1998, has appealed from the following orders of the trial court:
We conclude that the cumulative effect of these orders has been to deny the father both visitation with his daughter and a readily available forum in which the issues raised by this significant curtailment of his rights as a parent can be addressed. Denial of visitation rights to a parent is appropriate only in extreme cases in which such a measure is necessary to avoid harm to the child, and the trial judge made no findings which would support such a denial. We are unable to determine from the judge's findings whether the long-term denial of visitation was intentional and, if it was, what the judge's justification was for effectively denying the father any contact with his child. Accordingly, we vacate Order No. 2 and Order No. 3, and we remand the case for additional (and updated) findings of fact and conclusions of law and for appropriate disposition of the dispute consistent with this opinion and with the trial court's findings and conclusions on remand.
Mr. Sampson and Ms. Johnson were married near Portland, Oregon, in January 1998. During the first year of their marriage, the couple lived briefly in Qatar. Ms. Johnson then returned for several months to her former home in Oregon. In September 1998, she rejoined her husband, who had moved to Washington, D.C. Myriam was born in Washington on December 18, 1998.
In April 1999, when Myriam was approximately four months old, her parents decided to separate. On April 20, 1999, the mother filed a pro se complaint seeking custody of Myriam.2 The mother also moved with Myriam to Fayetteville, North Carolina, to stay with her mother and stepfather.
The parties agreed, and the court ordered, that the mother would have custody of Myriam pendente lite and that there would be weekly visitation with the father. On August 10, 1999, the judge signed a consent order which required each parent to travel to the other parent's home every second weekend. On October 27, 1999, the judge ordered that visitation was to proceed pursuant to a revised schedule. Under the new arrangement, the father was to travel to the mother's home three times a month, while the mother and Myriam were to visit the father once a month. The judge also ordered the father to pay $587 per month for Myriam's support.3
During the hearing on October 27, 1999, the father, who was at that time appearing pro se, expressed concern that the mother was planning to move with Myriam to the mother's original home in Oregon. The father orally requested "some type of restriction on [the mother's] taking the baby back to Oregon at this time, or moving the baby more than 500 miles from the District, without court permission." Upon ascertaining that the mother was contemplating a move to Oregon, the judge told the mother that she must obtain the court's permission before moving the child from her current home.
In January 2000, the mother filed a Motion for Temporary Relocation, requesting that she and Myriam be permitted to move to Portland, Oregon, because the mother's own mother and stepfather (Myriam's maternal grandmother and step-grandfather) were about to return to their home in that city. A hearing was held on the mother's motion on February 17, 2000. The father filed an opposition to the motion, but he did not appear at the hearing; he later explained that his plane from Dubai was delayed. The mother took the stand and described her extensive family connections and support in the Portland area, where she had lived since she was three years old. Although the motion was styled as one for "temporary" relocation, the mother made it clear during her testimony that she proposed to live in Portland indefinitely.
At the February 17 hearing, the father's attorney, who had previously filed a motion to withdraw, elected not to cross-examine the mother. The attorney did ask the court "to take into consideration [that] Oregon is a substantially longer distance from the District of Columbia than Fayetteville, North Carolina, and also [to] take into consideration the visitation." Counsel pointed out that, under the prior order, the mother was to bring Myriam to Philadelphia, where the father was apparently residing at the time, and she inquired "how the court intends to deal with that issue." The judge responded that "I'm going to vacate it," evidently referring to the visitation order, but she provided no further elaboration.4 As events turned out, this cryptic exchange between court and counsel has resulted in the end of all contact between father and daughter for more than four years.
The judge formally ruled, inter alia, that "plaintiff may temporarily relocate to Portland, Oregon[,] with the minor child, M[y]riam Sampson," and that "all previously scheduled visitation is hereby suspended." A brief written order implementing these rulings (Order No. 1) was issued later on the same day.
The father offered to pay for Myriam's transportation if the court adopted his proposal.
On April 18, 2000, in Order No. 2, the trial judge denied the father's motion on the following grounds:
For a party [sic] to modify a custody order, that party must demonstrate a substantial and material change in circumstances and that such modification is in the best interest of the child. D.C.Code § 16-911(a-2)(4)(A). Due to Defendant's failure to show any substantial and material change in the child's circumstances, the Motion must be denied.
The judge thus evidently construed the motion as claiming that there had been a substantial and material change of circumstances since February 17, 2000, when Order No. 1 was issued. The father, on the other hand, was arguing that there had been such a change of circumstances since the prior visitation arrangement (which was based on the mother's residence in North Carolina and which predated Order No. 1) had been in effect. In any event, Order No. 2 left in place Order No. 1's suspension of the father's visitation rights.
On September 20, 2000, the mother filed a motion to dismiss the action or stay the proceedings pursuant to D.C.Code § 16-4507 (1997 Repl.).6 The mother alleged, inter alia, that the father no longer lived in the District of Columbia,7 and that he could not be reached at his last known address; that she alone was supporting Myriam; that the father was in arrears in the amount of $6,472 in his court-ordered child support; that Oregon had the most numerous and most significant connections to the dispute; that most of the persons with information relevant to any future custody determination were in Oregon; and that the cost of litigating the action in the District of Columbia would have negative consequences for Myriam. Meanwhile, the father filed various motions in which he requested visitation, asked that the child be made available for telephone conversations, and requested photographs of Myriam.8 He wrote movingly regarding the pain that he had suffered as a result of his separation from his daughter, which by then had lasted more than a year. The father asserted that the mother had frustrated his attempts to develop a relationship with Myriam and that she had even declined to provide him with a telephone number at which his daughter could be contacted.
The father's motions were held in abeyance pending disposition of the mother's motion to dismiss or stay, and the trial judge never ruled upon them on the merits. On November 2, 2000, the judge issued a brief order (Order No. 3) dismissing the case on the grounds of inconvenient forum. The father filed a timely notice of appeal.
At the time that Order No. 3 was issued, D.C.Code § 16-4507(h) provided as...
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