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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-FM-92

MARTHA DUGUMA, APPELLANT,

V.

BALEHAGER AYALEW, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(DRB-38-14)

(Hon. Judith A. Smith, Trial Judge)

(Argued May 17, 2016 Decided July 13, 2016*)

Lisa Freiman Fishberg for appellant.

Alan B. Soschin for appellee. 

Before GLICKMAN and THOMPSON, Associate Judges, and REID, Senior 

Judge.

PER CURIAM: This is Martha Duguma’s appeal from the trial court’s order 

 

*

The decision in this case was originally issued as an unpublished 

Memorandum Opinion and Judgment. It is now being published upon the court’s 

grant of appellee’s motion to publish.

9/15/16
2

awarding sole physical custody of her three minor children to their father, 

Balehager Ayalew. Appellant raises three issues on appeal. First, she argues that 

the trial court abused its discretion in refusing to grant her counsel’s request for a 

continuance when she failed to appear on the day of the custody trial. Second, 

appellant argues that the court erred in failing to interview the children or appoint a 

guardian ad litem to determine the children’s wishes as to their custody. Third, 

appellant argues that even aside from the absence of evidence as to the children’s 

custodial preferences, there was insufficient evidence to grant custody to appellee.

For the reasons that follow, we hold that the trial court did not err in refusing 

to continue the trial; that a remand is required for the court to hear from the parties’ 

children and consider their wishes respecting custody; and that the evidence was 

not otherwise insufficient to support the court’s custody determination. 

I.

Appellant and appellee were married in 1997 and have three children 

together: D., born February 26, 2000; A., born March 14, 2005; and Z., born on 

September 1, 2006. All three children are United States citizens, as are the parties. 
3

In 2006, before Z. was born, appellant and the children moved back to her 

native country of Ethiopia. Thereafter, appellee, who remained in the United 

States to attend school and work, periodically visited them in Ethiopia for several 

weeks or months at a time. In addition, each year until 2013, the children traveled 

to the United States to stay with appellee at Christmas and over the summer. 

The trial court credited appellee’s testimony that in April of 2013, the parties 

agreed that the children should move to the United States to continue their 

education and live with appellee in the District of Columbia. On June 24, 2013, 

appellant brought the children here to stay with him. Appellant left the children 

with appellee when she returned to Ethiopia after several weeks. At the end of the 

summer, the children remained in the District and were enrolled in school here. 

In the “Emergency Complaint for Child Custody Hearing” that appellant 

filed on January 7, 2014, she alleged that appellee “without the consent or 

agreement of [appellant] kidnapped and removed the minor children” from her 

home in Ethiopia and that he “has refused to return them to said home since June, 

23, 2013 [sic].” The trial court denied appellant’s request for emergency relief and 

scheduled an initial hearing on March 13, 2014.
4

At appellant’s request (which was untimely), the court waived her presence 

at this initial hearing. Thereafter, appellant did not appear at the uncontested 

divorce trial and custody status hearing on April 28, 2014. Although she was in 

the United States, she informed the court through counsel that she had fallen ill just 

minutes before those proceedings were to commence. The court accepted this 

explanation, but not without admonishing appellant’s attorney that her repeated 

“fail[ure] to show up means she’s not participating and pursuing her case.” 

Among other matters discussed during the custody status hearing, the court 

inquired whether the parties wished to have a guardian ad litem appointed to 

represent the children’s interests. Both parties declined to so request.1

The custody trial was set for August 11, 2014. On that date, appellant again 

failed to appear. Her counsel had no explanation for her absence; he did not know 

where she was or even whether she was in the country. He asked for a continuance 

so that he could locate appellant and secure her presence for a later trial date. The 

trial court denied the request, however, on the grounds that good cause had not 

been shown and that a continuance would prejudice appellee because his 

 

1

The court gave the parties two weeks to decide, thereby affording 

appellant’s counsel the opportunity to consult with his client.
5

guardianship of the children was subject to a number of limitations while the action 

remained pending. 

The custody trial went forward. Appellee was the only witness. When the 

trial concluded, the court issued a temporary order granting appellee sole physical 

custody of the children with final decision-making authority. Several months later, 

on December 22, 2014, the court issued a final order awarding appellee sole 

physical custody and joint legal custody of the children with reasonable rights of 

visitation for appellant. At no time in the intervening months between the 

temporary and final orders did appellant seek to reopen the record in order to 

testify or submit other additional evidence, nor did she provide an explanation for 

her absence on the day of trial. Appellant did, however, note a timely appeal after 

the final custody order was issued.

II.

Appellant first argues that the trial court erred in failing to grant her a 

continuance when she did not appear on the day of trial. This failure, she argues, 

led the court to conduct an “ex parte trial” and rely entirely upon appellee’s 

evidence. 
6

We hold that the trial court did not abuse its discretion in refusing to grant a 

continuance.2 Under Rule G (b) of the Superior Court rules governing family 

proceedings, an application for a continuance must be made in writing and set forth 

good cause for granting a continuance.3 The application must identify at least one 

date to which the parties agree the case may be continued, or else set forth the good 

faith efforts made by the movant to secure the other party’s agreement and propose 

three dates on which the proceeding might be rescheduled.4 Although the trial 

court has discretion to grant a continuance not requested until the day of trial, this 

court is “especially hesitant to overturn the denial” of such last-minute requests.5

Appellant complied with neither the letter nor the spirit of Rule G. She did 

not apply for a continuance in writing, and her unexplained absence did not 

 

2

See Hammond v. Weekes, 621 A.2d 838, 844 (D.C. 1993) (“Ordinarily, the 

decision to grant or deny a continuance rests in the sound discretion of the trial 

court and will not be reversed absent an abuse of that discretion.”) (quoting 

Thompson v. Thompson, 559 A.2d 311, 313 (D.C. 1989)).

3

Super. Ct. Gen. Fam. R. G (b).

4

Id.

5

See Esteves v. Esteves, 680 A.2d 398, 405 (D.C. 1996) (quoting Taylor v. 

Wash. Hosp. Ctr., 407 A.2d 585, 594 (D.C. 1979)).
7

establish good cause to grant her counsel’s oral request.6 She apparently made no 

effort to obtain appellee’s consent, nor did she offer the court any dates on which 

proceedings might recommence. Indeed, given her absenteeism throughout 

custody proceedings that she initiated, the court reasonably could have doubted 

whether appellant would appear on any date to which the trial might have been 

continued. Although she apparently attended court-ordered mediation, appellant 

had never appeared before the court, and she never provided an explanation for her 

absence at the custody trial, either that day or during the more than four months 

after the court issued its temporary custody order and before that order became 

final.7 Moreover, the facts belie her complaint that the trial court conducted an “ex 

parte” hearing. Not only did her attorney actively participate in the trial, including 

by extensively cross- and re-cross-examining appellee, but appellant also had four 

months before the trial court issued its final order in which she could have sought 

to supplement the record with additional evidence. On these facts, then, we cannot 

 

6

See Lyons v. Jordan, 524 A.2d 1199, 1203 (D.C. 1987) (holding that the 

trial court did not abuse its discretion in granting a day-of-trial request for a 

continuance when the defendants failed to appear and their counsel had no 

explanation for their absence); see also Rymer v. Pool, 799 A.2d 371, 373 (D.C. 

1992) (affirming the trial court’s refusal to grant a continuance when a party was 

absent due to an alleged but factually unsupported illness). 

7 Apart from her appellate counsel’s unsupported assertion at oral argument 

that appellant was in Ethiopia, there is nothing in the record purporting to explain 

where she was on the day of trial or why she did not appear.
8

say that the court abused its discretion in refusing to grant appellant’s day-of-trial 

request for a continuance.

Appellant also argues that the trial court erred in granting custody to 

appellee without first hearing from the children, either directly or through a 

guardian ad litem. During the pre-trial hearings, appellant asked the court to 

interview the children regarding their preferred custodial arrangement. The court 

expressed an interest in hearing from the children, particularly D., who was 

fourteen years old in 2014, but ultimately deferred making its decision whether to 

do so until after it heard the evidence at trial. Ultimately, the court did not 

interview the children or otherwise hear from them. Although appellant did not 

renew her request at that time, she argues that her own absence at the trial made it 

“incumbent upon the court” to ascertain the children’s views. Appellant argues in 

the alternative that even though she had earlier declined to have a guardian ad 

litem appointed, the court should have appointed a GAL sua sponte once it realized 

appellant would not be present for the trial.
9

We agree with appellant that the court should have interviewed the 

children.8 When determining a child’s best interest in a custody proceeding, the 

court is required by statute to consider “all relevant factors,” specifically including 

“the wishes of the child as to his or her custodian, where practicable.”9 In this 

case, however, the court received no evidence relating to the children’s wishes. 

Neither party called the children to testify, the court ultimately did not interview 

them, and appellee testified that he did not have any information as to their wishes 

with respect to custody. While the court could find that the children were “thriving 

under [appellee’s] care” and doing well in school, these findings and the evidence 

underlying them did not speak to the issue of the children’s custodial desires. Yet 

the children, who were fourteen, nine, and seven years of age at the time of trial, 

were old enough to be capable of expressing an opinion as to whether they should 

reside primarily with their mother in Ethiopia or their father in the District of 

 

8 We perceive no merit to the alternative argument that the court was 

required to appoint a guardian ad litem sua sponte merely because appellant failed 

to appear for trial. 

9

 D.C. Code § 16-914 (a)(3)(A) (2012 Repl.). 
10

Columbia.10 So far as appears from the record, it was “practicable” for the court to 

consider their wishes by interviewing them. 

Appellee argues that “[i]t is not the Court’s function to affirmatively seek 

evidence related to the custody factors,” but cases in which the trial court is tasked 

with discerning what is in children’s best interests “implicate[] the judge’s 

responsibility, as parens patriae, to act on behalf of the child”—a role that in some 

situations involves “more active judicial participation in the development of the 

facts.”11 This case presented such a situation. Although the decision as to whether 

to interview children in camera in custody disputes or determine their views in 

 

10 See P.F. v. N.C., 953 A.2d 1107, 1117 (D.C. 2008) (remanding a custody 

case in part because the court had ignored the custodial preferences of children 

aged ten and seven); In re A.R., 679 A.2d 470, 479 n.14 (D.C. 1996) (“Children as 

young as four years old have had their preferences followed with their desires 

called an ‘important factor.’”) (quoting 2 Jeff Atkinson, Modern Child Custody 

Practice § 4.44, at 295–96 (1986)); In re I.B., 631 A.2d 1225, 1232 (D.C. 1993) 

(recognizing that children twelve and eight years old “were certainly old enough” 

to express an opinion regarding what was in their best interest).

11 In re D.M., 771 A.2d 360, 369 (D.C. 2001); see also In re A.R., 679 A.2d 

at 476 (“We recognize, however, that a child custody case is not a run-of-the-mill 

dispute in which only the parties’ interests are implicated. . . . Accordingly, the 

court acts as parens patriae on the child’s behalf, and ‘should do her (or his) best 

to obtain all of the information needed to effect a judicious disposition.’”) (quoting 

In re L.W., 613 A.2d 350, 352 n.6 (D.C. 1992)).
11

some other way rests with the sound discretion of the trial court,12 given the age of 

the children here, the dearth of other evidence as to their wishes, and the 

requirements of the statute, we remand for the court to conduct a further inquiry 

into their custodial preferences. 

Appellant’s final claim challenges the sufficiency of the evidence and the 

trial court’s findings even apart from the absence of evidence as to the children’s 

wishes. “We review a trial court’s legal determinations de novo but apply a clearly 

erroneous standard to its findings of fact.”13 

Appellant argues that many of the court’s findings and conclusions 

regarding the statutory factors bearing on the determination of custody were 

incomplete or incorrect because the court lacked evidence appellant could have 

provided and instead credited appellee’s testimony.14 We reject this argument, as it 

 

12 See In re A.R., 679 A.2d at 476.

13 Jordan v. Jordan, 14 A.3d 1136, 1146 (D.C. 2011) (citing D.C. Code § 

17-305 (a) (2001)).

14 For example, appellant claims that the court was “unable to ascertain her 

wishes as to custody,” that her “absence was interpreted by the trial court as 

evidence that she does not act in the children’s interests,” that there was minimal 

evidence “regarding the parents’ ability to reach shared decisions,” and that the 

trial court improperly credited appellee’s testimony that “he was the more involved 

parent.” 
12

stems in toto from appellant’s own default in failing without justification to appear 

or submit evidence when she could have done so. Appellant also asserts, though, 

that the court erred in treating this as a simple custody case rather than as a 

relocation case. She argues that the court should have construed appellee’s 

counterclaim for custody to include a request to relocate the children from Ethiopia 

to the District of Columbia. Under Estopina v. O’Brian,

15 relocation cases 

implicate a series of additional factors that the trial court must consider before 

granting a parent’s request to move the children—factors that the court did not 

consider explicitly in this case.

We conclude, however, that the trial court was not required to apply the 

Estopina factors because this was not a relocation case. The children lived and 

attended school in the District when the complaint was filed. This alone 

distinguishes Estopina and like cases, in which the litigation preceded the proposed 

or contemplated relocation.16 Moreover, appellant failed to present any evidence 

that the children’s presence in the United States was not attributable to the parties’ 

 

15 68 A.3d 790 (D.C. 2013).

16 See id. at 791.
13

prior agreement concerning their schooling, as appellee testified. We therefore 

hold that the court did not err by not treating this as a relocation case.

For the foregoing reasons, we remand for further proceedings to ascertain 

the wishes of the children respecting their custody and such additional findings and 

conclusions of law as may thereupon be appropriate and in accord with this 

opinion.

So ordered.