Analysis: D’Ambrosio v. D’Ambrosio

Richard J. Byrd, Esq.

D’Ambrosio v. D’Ambrosio, 3/29/05, Fairfax Circuit, Judge Keith

Facts: Short marriage; parties separated when Mom was one month pregnant. Parties shared joint legal and physical custody of young child pursuant to divorce. Mom lives in New York, Dad in Fairfax, VA. Child physically alternates homes between NY and VA, each parent having child for two weeks at a time.

Mom scheduled the child's 18-month pediatrician checkup with a doctor in NY. When Dad hears of this, he schedules an 18-month pediatrician checkup with a doctor in VA. So child receives two checkups from two separate pediatricians. The parties also had disagreements about whether the child should receive a flu shot and whether she was allergic to certain food items.

Mom filed a motion for injunctive relief, seeking to prohibit Dad from calling the child by a different first name, requesting attorney's fees and "such other relief as equity deems just." Among the supporting allegations in the motion for injunctive relief, however, Mother asserted as follows:

• The mother has encouraged the father to get a pediatrician in Virginia for emergency purposes.
• The mother has kept the father informed of appointments with pediatricians in New York, so he could attend should he desire.
• Despite the fact that the father knew the checkup appointment was scheduled, he scheduled one for child in Virginia prior to appointment in New York. At the eighteen month appointment, apparently, there was a real problem about whether the child was to receive shots.
• Child has since birth been treated in NY by a pediatrician and should have one primary pediatrician for all shots and regular care.

In a cross-motion, Dad requested:

• (1) a modification of custody decree concerning the time, date, and place for the exchanges;
• (2) an order compelling enforcement of the portion of the decree involving telephone conversations with the child.;
• (3) an order changing child's last name to "D’Ambrosio"; and
• (4) an injunction to prohibit Mom from contacting the Virginia pediatrician's office except in writing.

In response to Dad's cross-motion, Mom asserted that Dad had not complied with the earlier custody decree, and requested that Dad "…be restrained and enjoined from making defamatory comments about [Mom] to third parties that may affect her ability to effectively parent and communicate." In support of this injunction, Mom set forth that Dad had told the VA pediatrician that Mom had psychological problems and a "borderline personality disorder."

Trial Court: The trial court granted Mom’s motion and enjoined Dad "from making defamatory comments about [Fowler] to any third parties." The trial judge said that he was not sure whether the statements Dad had made to the pediatrician "are defamatory,… they are certainly not complimentary, and I don’t think the father should be making those statements to other professional personnel or anybody else."

The T/C, acting sua sponte, also modified the earlier custody decree with respect to the child's health care. The Court noted its concern "about the welfare of [S.F.] on this pediatrician decision, and it's a potentially dangerous situation for the child to have two competing pediatricians, and so I'm going to modify the custody so that the mother is going to make the medical decisions for [S.F.]." Thus, the trial court ordered that Mom would have the right to select a primary care physician for the child, and to make all routine appointments for the diet, well-baby care appointments, check ups, shots, etc. She would not have any obligation to advise Dad prior to making normal appointments, but was to advise Dad of the results of doctor visits during her custodial time. Dad could take the child to the pediatrician in Virginia only for sickness and emergencies. Dad must advise Mom of the results of any doctor appointments during his custodial time with him.

Issue on Appeal:

• 1. Can the Court award sole right to made medical decisions, when neither party requested that relief?: The husband contends the modification of the custody decree was improper because he lacked notice that the medical decision-making authority of the parties was at issue.

Holding C/A:

"Here, the record contradicts D'Ambrosio's assertion that he was not on notice that the medical decision-making authority of the parties was at issue in this hearing. The motions before the trial court clearly indicated that the issue of "competing pediatricians' was before the court." The C/A cited Mom's initial motion that the child should have one primary pediatrician to cover all regular medical care, and noted that Mom expressly requested "such other relief as equity deems just." In Dad's own motion, he requested that Mom be enjoined from contacting the Virginia pediatrician's office. In Mom's supplemental motion, she asserted that Dad was not complying with the earlier decrees by setting up a pediatrician appointment despite the fact that the child had a regular pediatrician in New York since her birth. The C/A concludes: "Because the relief requested was consistent with the allegations in the petition and the arguments made at trial, and because the trial court has clear authority under Code § 20-108 to modify a custody decree when it deems it to be in the best interests of the child, we conclude that the trial court did not err in fashioning an "appropriate remedy that comports with the best interest of the children, even though it was not specifically requested by the mother or father."
 

• 2. Can the Court enjoin a party from making derogatory remarks to third parties?: The husband contends that the trial court erred when it enjoined him from making "defamatory comments" to "third parties." He claims that this constitutes a "prior restraint" that infringes his First Amendment right to free speech. He also argued that the injunction is legally insufficient because it is "vague" and was entered "without a showing of irreparable harm."

Holding C/A:

"Although D'Ambrosio failed to properly preserve this issue for appeal, he asks that we invoke the ends of justice exception to consider the merits of this argument. Because we agree that, under the circumstances of this case, the issuance of this injunction constituted 'clear, substantial, and material' error, we consider the merits of this issue under the 'ends of justice' exception to Rule 5A:18, and we reverse and vacate the injunction."

"Unquestionably, [a]n injunction is an extraordinary remedy." An injunction must be specific in its terms, and it must define the exact extent of its operation so that there may be compliance. An injunction must "set forth what is enjoined in a clear and certain manner and its meaning should not be left for speculation or conjecture." Here, the injunction meets none of these requirements. The Mom offered no evidence that, absent the injunction, she would be irreparably harmed, nor did the trial court make any factual findings that could be construed as a finding of irreparable harm. Because "proof of irreparable damage is absolutely essential to the award of injunctive relief... Fowler failed to establish that she was entitled to the 'extraordinary remedy' of injunctive relief." Also, the Mom failed to demonstrate that she had no adequate remedy at law. If Dad did indeed make defamatory comments about Mom to the pediatrician and other individuals, Mom would be able to bring a common law action for defamation. Because Fowler has an adequate remedy at law, injunctive relief is inappropriate.

[Editor's Question: If the judge's ruling had been more narrow, and enjoined the Dad only from making derogatory comments to the child's doctor, would that narrower injunction pass muster at the C/.A?]

[Editor's Note: - This is an informal, and not rigorous, treatment of the issues and holdings in these cases. For the sake of brevity and easier reading, some liberty has been taken by the author with some of the language of the Court of Appeals, even though that language appears in Quotes. For example, underlining is used to emphasize important text. Also, shorthand language is used. E.G. - Where the actual opinion might say: "Fowler's position with regard the parties' Property Settlement Agreement of July 1, 1999 was..." this quote might actually be presented here as: "Mom's position regarding their PSA was..."]

© 2005, Richard J. Byrd, Esq., Chairman, Family Law Section, Fairfax Bar Association. This case summary may not be quoted or reprinted without express written permission.