Araya v. Keleta

65 A.3d 40, 2013 WL 1338956, 2013 D.C. App. LEXIS 77
District of Columbia Court of Appeals·Decided March 21, 2013·No. Nos. 11-FM-1105, 11-FM-1192, 11-FM-1230, 12-FM-0361, 12-FM-0408·Published·Cited by 15 cases

Opinion

THOMPSON, Associate Judge:

In these consolidated appeals, appellant Henok Araya (the “husband”) seeks review of the Judgment and Decree of Divorce Absolute and Order of Custody and Support entered by the trial court on August 24, 2011, (the “Order” or the “divorce decree”) and the court’s subsequent order on attorney’s fees. He makes numerous claims of error with respect to the court’s child-custody determination, division of property, and awards of child support, alimony, and attorney’s fees to his now ex-wife, Aida Keleta (the “wife”). Although we address each of the issues raised, only one occasions this published opinion: whether the court erred in awarding to the wife real property that the husband brought to the marriage as his sole and separate property. On the particular facts of this ease, we hold that the court did not err in making that disposition. As to that ruling, and in all other respects, we affirm the judgment of the trial court.

I. Background

The parties married on August 20, 2004, and separated on January 15, 2009. They have three minor children, all daughters, who were ages five, three, and two on the date of the divorce decree. As found by the trial court, at the time of trial, the husband, a cosmetic surgeon, was an “entrepreneurial physician in private practice,” who worked full-time, generating a “significant income from his practice and from ... numerous residential and undeveloped properties.” The wife “remain[ed] with the children in the home, though [she] expect[ed] ultimately to become employed.” 1

On May 11, 2009, the husband filed a complaint in which he sought sole legal and physical custody of the children. Thereafter, he filed an amended complaint for divorce, custody, and spousal and child support. The wife filed an answer, amended answer, and counterclaim seeking the same. Trial was held over several days from July 28, 2010, until January 6, 2011. In its 44-page Order, the court (the Honorable John H. Bayly, Jr.) granted the petitions for divorce, awarded joint legal custody of the children, awarded the wife sole physical, custody of the children, granted the husband visitation with the [44] children, and ordered the husband to pay monthly child support in the amount of $3,128. The court also awarded the wife sole and separate ownership and possession of real properties located at 1800 New Jersey Avenue, N.W. (the “New Jersey Avenue property,” which the court referred to as the parties’ “marital home”) and 435 S Street, N.W. (the “S Street property,” which the court termed the “appurtenant dwelling”). In addition, the court awarded the wife spousal support in the amount of $6,000 per month for twenty-four months (an amount calculated to enable her to pay the mortgages on those annexed residential properties until, as contemplated by the court, she is able to complete re-training for employment).

II. Child Custody and Visitation

The husband challenges the child custody award and visitation order on several grounds: he contends (1) that the trial court erred in finding and heavily weighting evidence that he committed intrafamily offenses in 2002 and in 2005-07, while “dismissing]” the wife’s violence toward him; (2) that the custody award improperly was based on speculation that he might be violent toward the children; and (3) that it was legal error for the court to modify the custody arrangement that was ordered after a 2010 hearing on the parties’ cross-petitions for civil protection orders (“CPOs”),2 and that was continued through the court’s December 2010 pendente lite custody order, where there was no showing of a change in circumstances. We reject these claims.3

In making the custody determination, the court specifically recognized the statutory “rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense ... has occurred.” D.C.Code § 16 — 914(a)(2) (2001). The court then noted that both parties had been “ ‘found to have committed intrafamily offenses,’ ” a circumstance the court determined necessitated a separate evaluation of each party’s history of offenses, in order to “determine whether the presumption [in favor of joint custody] ha[d] been rebutted or otherwise affected.” The court’s Order recites that, .in 2002, the husband pled guilty to and was “convicted” in Virginia of assaulting the wife (causing an injury to her eyelid);4 that, in 2005 and 2006, the hus[45] band again assaulted the wife and, during one incident, caused an injury to her earlobe that required outpatient surgery; and that, after an incident in which one of the children was scalded with hot water, the husband hit the wife “so forcefully in her stomach as to cause [her] pain and apprehension of miscarriage.” The court also took notice of the 2009 physical altercation between the parties (the basis of the CPOs), during which the husband “violently assaulted [the wife] by pulling and dragging her across the threshold of the door of the home.... [and the wife] assaulted [the husband] by biting him in his torso area, perhaps to [restrain him] from taking the minor children from the New Jersey Avenue property.” Araya, 26 A.3d at 709. The court noted in addition that the wife was convicted in May 2011 of misdemeanor destruction of property for having torn the husband’s pants pocket during a physical altercation in October 2010. The court observed that while the wife’s conduct was “also reprehensible,” it was not “so dangerous or so likely of repetition as [the husband’s] episodic assaultive behavior.”

The court found that both parties “quite evidently love[] and caret ] for” the children and noted that their violence “has not so far been directed at the children ... but only at each other.” However, while satisfied that the wife presents “no menace of psychological or physical harm to the children,” the court expressed “apprehension that [the husband] may not be fully ready to forgo all force.” Citing the husband’s multiple “prior instances of resorting to force within the family,” the court decided to “limit [his] time with the children to unsupervised visitation” and to award sole physical custody to the wife. This arrangement, the court found, would “lessen[] the opportunity for [the husband] to turn to violence th[r]ough fatigue, frustration, or overwork.”

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Araya v. Keleta, 65 A.3d 40, 2013 WL 1338956, 2013 D.C. App. LEXIS 77 (D.C. 2013).

65 A.3d 40 (Araya v. Keleta) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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