# Prost v. Greene > District of Columbia Court of Appeals · January 5, 1995 · 652 A.2d 621 URL: https://www.frixlaw.com/law-library/cases/9698080 ## Case - **Full name:** Sharon PROST, Appellant, v. Kenneth GREENE, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** January 5, 1995 - **Citations:** 652 A.2d 621; 1995 D.C. App. LEXIS 1; 1995 WL 4910 - **Precedential status:** Published - **Opinion:** Concurrence by Schwelb - **Judges:** Steadman, Schwelb, Farrell - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9698080 ## How later opinions describe it (automated extraction) - concluding that conduct by one parent that “interferes *484 with the fulfillment of [the] children’s need for the guidance and love of the [other parent] may have a serious effect on the welfare of the children ” - concluding that conduct by one parent that “interferes with the fulfillment of [the] children’s need for the guidance and love of the [other parent] may have a serious effect on the welfare of the children” - affirming trial court’s ultimate finding on each parent’s ability to care for children despite several factual errors in court’s analysis, because other evidence, unchallenged on appeal, provided “firm foundation ... for the judge’s ultimate determination” ## Opinion text SCHWELB, Associate Judge, concurring: I agree with the remand and with most of the court’s opinion. I write separately, however, because I think the determination whether spousal abuse occurred in this case has considerable significance for reasons which the majority opinion does not address, but which might affect the disposition of the case on remand. The judge should decide who is lying, on this and on at least one other issue, for a good deal could turn on the answer. This is a ease in which the wife testified unequivocally that the husband physically assaulted and abused her on several occasions, some of them in the presence of the boys. The husband testified that he did not do it, period. The two versions cannot be reconciled. Both parties were under oath. At least one of them is not telling the truth. There were other issues on which the parties’ accounts diverged, but this one is probably the starkest. As the majority points out, there was a good deal of corroboration by other witnesses for the wife’s claims of physical assault. If what she alleged really happened, then the *633 husband not only engaged in extremely culpable conduct, but also perjured himself by denying it. Although this court alluded laconically in Coles v. Coles, 204 A.2d 330, 331-32 (D.C.1964) to the prevalence in divorce litigation of a “tolerable amount of perjury,” see maj. op. at 625,1 do not believe that this characterization was meant to be taken literally, or that lying under oath has become more or less acceptable. If the trial judge finds that the husband both assaulted his wife in front of his children and perjured himself on the subject, I do not see how she could fairly exclude such findings from the custody calculus. There is other troubling evidence of deceptive conduct in this record. In a letter dated June 1, 1992 to his friend and then-attorney, the husband referred to the wife as a “slimey [sic], sleazey [sic], vile and disgusting leech.” At trial, he introduced into evidence as an exhibit a doctored version of the letter with the disagreeable language excised. Also missing from the husband’s exhibit was a statement in the original letter that because the husband had anticipated that the wife would demand proof of payment before reimbursing him for certain expenditures, “I made up a false payment record for May.” The apparent chicanery was revealed on cross-examination, when counsel for the wife produced the undoctored letter. The judge made no findings regarding this curious incident, in which the husband appeared to have contrived to deceive the court by conjuring away parts of a document which placed him in an unfavorable light. 1 The husband also effectively admitted in the original letter that he had obtained or attempted to obtain money from the wife by false pretenses. Professor Wigmore has written, and this court has recognized, that [i]t has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause. II J. Wigmore, Evidence § 278, at 133 (Chadbourn ed. 1979) (emphasis added to last sentence only), quoted in Mills v. United States, 599 A.2d 775, 783-84 (D.C.1991). In my opinion, the husband’s conduct in altering the letter (as well as the fabricated payment which he acknowledged in its original version) constituted the very kind of deception with which Dean Wigmore was concerned. But there may be more here than consciousness of guilt which “operates indefinitely, though strongly, against the whole mass of alleged facts constituting his cause.” The husband comes across in this incident, at least in his dealings with the wife, as a deceptive and dishonorable man. If he also lied under oath about the assaults on his wife in front of the children, then in my view the judge should give further careful consideration to the question whether it is in the children’s interest that he, rather than the wife, be their custodial parent. I do not suggest that such a finding would compel an award to the wife, but I do think that a fundamental lack of probity, if established, has to be treated as an important factor in the equation. 2 The husband is apparently a good deal more relaxed and smoother than the wife is in handling the boys. But especially in this kind of case, in which the future *634 of the children is in the balance, character counts too. . The husband testified that he sent a second letter at a later date, backdating it to June 1, because his lawyer "mentioned to me that it was probably not a good idea ... even kidding like that....” The reader can draw his or her own conclusion as to whether the purged language constituted an attempt at humor. . This proposition would come into play, of course, only if one spouse was significantly more truthful than the other. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698080. Public record. Not legal advice.