Appendix — Morgan v. Foretich

NOV 3. «1988

JOSEPH F. SPANIOL SR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JEAN ELIZABETH MORGAN,

Petitioner,

ERIC A. FORETICH,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

STEPHEN H. SACHS

Counsel of Record

JUANITA A. CROWLEY

ANDREW D. RoTH

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Petitioner

November 3, 1988

SERS BEM ee ERENCE PERC hyena aEE mca nie Seana nH

WILSON - Eres Printinc Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87-

O68, 7-667 (D.C. Aug. &, 1968) ..................................

Morgan v. Foretich, No. 86-1137 (D.C. June 30, 1987)..

Morgan v. Foretich, No. 86-1137 (D.C. Feb. 6, 1987) ....

Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87-

942, 87-987, Order (D.C. Apr. 22, 1988) ....................

Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87-

942, 87-987, Order (D.C. Aug. 30, 1988) ..............0.....

Morgan v. Foretich, C.A. No. D-684-83, Order (D.C.

ST Ms Ns I, TOMI avcececcadcccchitvaceccestsconcchetiakeainedanes

Morgan v. Foretich, C.A. No. D-684-83, Memorandum

Opinion and Order (D.C. Super. Ct. Nov. 26, 1986) ..

Morgan v. Foretich, C.A. No. D-684-83, Order Amend-

ing Public Disclosure Restrictions (D.C. Super. Ct.

BE, Ss EY dicbicinhioninsibncsiadooaciachaSiaatinemadahacnsiassocke

Morgan v. Foretich, C.A. No. D-684-83, Memorandum

Opinion and Order (D.C. Super. Ct. Apr. 15, 1988)..

Morgan v. Foretich, C.A. No. D-684-83, Order (D.C.

AE ES ER een

Letter from Department of Justice to the Honorable

Herbert B. Dixon, Jr. (Sept. 20, 1988) -..............0......

Morgan v. Foretich, Nos. 87-2549, 87-2550, 87-2558

and 87-2559 (4th Cir. May 17, 1988) ~..........000000......

Morgan v. Foretich, No. 87-987, Excerpts from Brief

in Support of Appeal From the Superior Court of

the District of Columbia (Family Division) (D.C.

a na

Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87-

942 and 87-987, Attachments to Motion of the Wash-

ington Post Company to Unseal the Record (D.C.

ST I 0s

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987

JEAN ELIZABETH MORGAN,

Appellant,

V.

Eric A. FORETICH,

Appellee.

Argued April 25, 1988

Decided Aug. 5, 1988

Stephen Sachs, with whom John Vanderstar and G.

Allen Dale, Washington, D.C., were on the brief, for

appellant.

Eric A. Foretich, pro se.

Linda P. Holman, Washington, D.C., guardian ad

litem.

Before MACK, BELSON and STEADMAN, Associate

Judges.

STEADMAN, Associate Judge:

The formal parties to this appeal are the divorced par-

ents of a daughter, H, the ultimate real party in interest.

She was born in 1982. On November 8, 1984, appellant

Morgan was awarded custody of H and appellee Foretich

was given liberal visitation. Almost continuously since

that date, the parties have been in litigation on these

2a

issues, with numerous appeals to this court and two pub-

lished opinions. See Morgan v. Foretich, 521 A.2d 248

(D.C.1987) (Morgan I), and 528 A.2d 425 (D.C.1987)

(Morgan II). Now before us is an appeal from an order

of August 19, 1987, granting Foretich a two-week sum-

mer visitation with H and a subsequent order of civil

contempt and imprisonment of Morgan for refusal to

comply with the August 19 order.’

I.

Some of the background facts, through August of 1986,

were recited in our previous opinions. In January 1985,

within two months of the custody and visitation order

of November 8, 1984, Morgan began to make accusations

that Foretich was sexually abusing H during visitation.

Motions were filed by both parties relating to changes in

custody and visitation and with respect to evaluation of

H. These motions were set for hearing before Judge

Herbert B. Dixon in November 1985. In his order of

December 27, 1985, Judge Dixon denied all these motions

with the exception of a minor modification of Foretich’s

visitation rights.

Matters first came to a head in February 1986, when

Morgan refused to allow H to visit Foretich in accord-

ance with the court-ordered visitation schedule. Hear-

ings were held in June and July of 1986 on several mo-

tions, including Foretich’s motions to hold Morgan in

contempt and for change of custody and Morgan’s mo-

tions for temporary suspension of visitation and to com-

pel discovery. On July 17, 1986, Judge Dixon orally

announced his finding that Morgan had failed to prove

by a preponderance of the evidence that Foretich had

1 Also before us and dealt with in this opinion are certain col-

lateral orders, entered in the same time frame, relating to recusal

and closure. Prior appeals consolidated with the appeals from the

two-week visitation and civil contempt orders are effectively mooted

by our decision today.

3a

abused H, and that Morgan had disobeyed the visitation

orders without lawful justification or excuse. A series

of further hearings and orders then ensued, resulting

in a finding of contempt and order of incarceration in

August 1986. We stayed the order pending appeal, with

various conditions including the posting of a security

approved by the court in the amount of $200,000. On

appeal, we upheld the closure of the contempt hearings,

Morgan I, supra, and affirmed the judgment of con-

tempt, Morgan JI, supra.

Meanwhile, Judge Dixon had ordered that visitation

be resumed. When Morgan again failed to comply, Judge

Dixon found her in contempt and ordered her incar-

cerated on February 17, 1987. Morgan was released from

jail on February 19, 1987, and on February 24, 1987,

visitations resumed for the first time in over a year.

From February 24 through April 1, 1987, the visits were

supervised and lasted one hour. On April 1, Judge Dixon

ordered that the visits be extended to four hours.*

On April 6, 1987, Judge Dixon began a series of hear-

ings on a motion by Foretich for a change of custody

and termination of Morgan’s parental rights and on

Morgan’s cross motion to suspend visitation, or, in the

alternative, to require supervised visitation. Seventeen

days of hearings with numerous witnesses were held over

the course of the spring and summer, ending on August

21, 1987.

During the course of the hearings on the motions,

Judge Dixon entered several orders continuing to grad-

ually expand the visitation schedule. On April 21, 1987,

he ordered the first overnight unsupervised weekend visi-

2? Though Judge Dixon entered an order for unsupervised four-

hour visits, Foretich invited H’s guardian ad litem to supervise

the visits. All of the visits were in fact supervised by the guardian

until the court expanded them to overnight visits.

4a

tations. Pursuant to further orders, H spent nine or

ten weekends with Foretich. Several emergency stays

of the weekend visitation orders sought by Morgan and

H’s guardian were denied by this court. H’s guardian

played some part in most of these weekend visits and

submitted reports of her observations to Judge Dixon.

Then on August 19, 1987, with the hearings still not

completed,* Judge Dixon entered an order providing for

an extended visitation from August 22 through Septem-

ber 6, 1987. In his six-page order, he noted, inter alia,

that since H was scheduled to return to school on Sep-

tember 8, “|w]hatever the court’s ultimate ruling may

be on the pending motions, to further delay the defend-

ant-father’s entitlement to summer visitation with his

child until that ultimate ruling results in a denial of

said summer visitation by default.” *

Morgan appealed this visitation order that same day.

Her emergency motion for stay pending appeal filed the

following day was denied by this court on August 21.

Morgan failed to comply with the visitation order. She

secreted the child and refused to reveal her whereabouts.

(To this day, H remains hidden.) On August 24, Judge

Dixon issued an order to show cause why Morgan should

not be held in contempt. On the same day, Morgan

moved to have Judge Dixon recuse himself on the

ground that he had prejudged both her credibility and

the evidence on which her defense rested. She also moved

3 The final day of receiving courtroom evidence was on August 21.

It was agreed at that time that the parties would submit proposed

findings of fact and comprehensive closing arguments in the way

of a post-trial brief, as well as any further evidentiary proffers,

by September 11, with further time for responses thereto. We

were advised at oral argument that no final trial court rulings

have been made on the motions which were the subject of the

April-August hearings.

*The order also provided for seven weekend visits during the

fall months of 1987.

————————<—

5a

to open her contempt hearing to the public, unseal the

record and modify a closure order of April 13.°

After a hearing held on August 26, Judge Dixon held

Morgan in contempt and ordered her incarcerated, effec-

tive August 28. He also ordered that the security posted

one year earlier pursuant to this court’s order be for-

feited at the rate of $5,000 per day. On August 27,

Morgan appealed the contempt judgment and sought a

stay pending appeal. The stay was denied and Morgan

was incarcerated on August 28, where she remains.

II.

A principal issue before us is whether the record sup-

ports the trial court’s action in ordering a two-week

summer visitation. Our standard of review is well-es-

tablished. Trial court decisions as to visitation rights

are reversible only for clear abuse of discretion. Hamel

v. Hamel, 489 A.2d 471, 475 (D.C.1985); Jackson v.

Jackson, 461 A.2d 459, 460 (D.C.1983). By statutory

command, a trial court judgment may not be set aside

except for errors of law, unless it appears the judgment

is “plainity wrong or without evidence to support it.”

D.C. Code § 17-305(a) (1981). Thus, to the extent that

such decisions rest on factual foundations, such findings

are binding unless clearly erroneous. Morgan II, supra,

528 A.2d at 429; District-Realty Title Insurance Corp.

v. Forman, 518 A.2d 1004, 1007 (D.C.1986). Such is

particularly the case where, as here, the findings rest in

significant part on considerations of credibility. See, e.g.,

Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct.

1504, 1512, 84 L.Ed.2d 518 (1985); Edmund J. Flynn

Co. v. LaVay, 431 A.2d 543, 546-47 (D.C.1981). “If the

[trial court’s] account of the evidence is plausible in light

* Essentially, that order restricted public disclosure of specific

sex abuse allegations in this proceeding or documents, records or

images concerning the same.

6a

of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed

the evidence differently.” Anderson, supra, 470 U.S. at

573-74, 105 S.Ct. at 1511.

The critical factual determination challenged by Mor-

gan was that sexual abuse of H by her father had not

been proven, or, as the court put it, the evidence was

“in equipoise.”’ That finding, asserts Morgan, was

“plainly wrong.”

As indicated in the facts recited above, this issue has

been in dispute between the parties since January of

1985. As a result, a trial court file has developed in this

ease of a size apparently unequaled in a District of Co-

lumbia domestic relations proceeding.® Morgan asks that

the entire record be taken into account, but in particu-

lar focuses upon the evidence presented in the 17 days

of hearings between April and August of 1987. She notes,

of course correctly, that our prior opinion affirming the

trial court did not extend to developments subsequent to

August 1986.

A review of the record shows that there was proba-

tive evidence on both sides of the issues of abuse. The

ultimate question, however, is not how we weigh the

evidence but rather whether a finder of fact, fully and

personally knowledgeable of not only the evidence pre-

sented in the April to August hearings but also the en-

tire history of these proceedings from November 1985

forward,’ would be clearly erroneous in concluding that

6 The proceedings in 1985, 1986, and 1987 consist of some 4,000

pages of transcript with approximately 75 witnesses, according to

Morgan’s own brief.

7 At one point in the proceedings, Judge Dixon observed that

with one more change of attorneys, he, the trial judge, would be

the longest participant in the litigation short of the parties them-

selves.

—————————“‘“—;i‘i;i;é;~™S

7a

the alleged sexual abuse had not been proven and would

commit a clear abuse of discretion in allowing a two-

week visitation. We cannot so conclude.

It is important to keep in mind the posture of the case

at the time of the challenged order. The underlying mat-

ters before the court were Foretich’s motion for change of

custody and Morgan’s cross-motion to suspend visitation.

Evidentiary hearings on those motions were coming to

a close. So was the summer, with H scheduled to return

to school in early September. H’s relationship with her

father, interrupted for over a year by Morgan on grounds

found baseless at the time, had been resuming on a

gradual basis. The court was satisfied that any prospect

of physical or emotional harm beyond that already caused

by the litigation was effectively neutralized... With the

ultimate issue still open, the court was dealing with the

reality that a child’s life was moving on.®

In this litigation, neither party can conclusively speak

for H. She has her own champion, a court-appointed

guardian. Although the guardian states that she is in

clear disagreement with the trial court’s order for the

extended summer visitation, we think correct her assess-

ment that she “cannot argue that the order was without

evidence to support it or an abuse of Judge Dixon’s dis-

cretion.”

8 The court cited its continuous availability for emergency hear-

ings, Morgan’s right to reasonable telephone contact with the child

during visitation, monitoring of the visitation by the guardian, and

the presence of Foretich’s parents or his wife with the child during

visitation.

® Understandably the court was unwilling at that moment to

make a definitive finding. As it noted, its ultimate ruling on pend-

ing issues could range “from a limitation imposed upon [ Foretich’s |]

rights of visitation and a denial of his motion for change of

custody, to an order granting [Foretich’s] motion for a change of

custody and imposition of limitations upon [Morgan’s] rights of

visitation, or to an order commiiting the child to a foster care

placement.”

8a

ITI.

Morgan raises four other issues in this appeal. Only

one, the challenge to the forfeiture of the posted security,

reveals reversible error. See Part IV, infra.

1. Defense of necessity. Criminal law recognizes the

doctrine that an otherwise criminal act is excused “if the

harm that would have resulted from compliance with the

law would have significantly exceeded the harm actually

resulting from the defendants’ breach of the law.” Griffin

v. United States, 447 A.2d 776, 777 (D.C.1982), cert.

den. sub nom. Snyder v. United States, 461 U.S. 907,

103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). This defense of

necessity does not require proof that harm is actually

occurring, but only that the defendant have a reasonable

belief that harm is imminent. 7d. at 778. It does not

exonerate one who has the opportunity to resort to “a

reasonable legal alternative to violating the law.” Id.

Morgan argues that this doctrine should apply on the

facts of this case. To some extent this is a variant of the

argument presented on the prior appeal that contempt

does not lie where the mother has a “duty to protect the

child from abuse.” Morgan II, supra, 528 A.2d at 428.

In any event, the situation here is far different from that

facing one who violates a criminal law. Here there was

a specific court order, requiring specific conduct tailored

to a specific fact situation—an order which we on appeal

had refused to stay. Civil contempt could become mean-

ingless if a lawful defense could rest on the ground that

a party took a different view, however reasonable, of the

potential harm in compliance.’® To the extent that non-

compliance may be justified as preserving the opportunity

for appellate review, the defier acts at his or her peril in

10 The same may be said of Morgan’s argument that the Parental

Kidnapping Prevention Act recognizes a defense if the action

“is taken to protect the child from imminent physical harm.” D.C.

Code § 16-1023(a)(1) (1987 Supp.).

9a

so doing. Bolden v. Bolden, 376 A.2d 430, 432-33 (D.C.

1977) (“It is axiomatic in our system of jurisprudence

that where a court with jurisdiction over both the sub-

ject matter and the parties enters an order, such order

must be obeyed.”) ; In re Banks, 306 A.2d 270, 274 (D.C.

1973).

2. Trial judge disqualification. Subsequent to the en-

try of the two-week visitation order but prior to the con-

tempt proceeding, Morgan moved to have Judge Dixon

recuse himself. This motion was denied. Morgan argues

that constitutionally she was entitled to an impartial

judge, an argument not in dispute. What is in dispute

here is whether she was denied such a judge. Normally,

bias must stem from an extrajudicial source, Jn re

Thompson, 419 A.2d 993, 995 (D.C.1980); Gregory v.

United States, 393 A.2d 132, 142 (D.C.1978), although

an extreme manifestation of bias during trial can result

in disqualification. Whitaker v. McLean, 73 App.D.C.

259, 118 F.2d 596 (1941) (judge’s bias during trial ap-

peared to have become “overpowering’”’). We think any

such allegation here is without foundation. Morgan

points to rulings by the trial court refusing to permit

participation in the contempt hearing by an out-of-state

member (new to the case) of the major law firm repre-

senting her,"’ and to rulings excluding evidence. These

may or may not be errors of law,’* but they hardly con-

stitute strong evidence of bias. No trial court conduct

11This firm member was presented at the beginning of the

contempt hearing on a motion to be admitted pro hae vice, which

was denied.

12 Such rulings, although Morgan’s brief styles them as erroneous

and makes references to the excluded evidence, are not argued as

separate major assignments of error; rather, the rulings are

focused on as indicia of bias. Indeed, the rulings in their own right

would seem more readily reviewable on appeal from a final judg-

ment on the motions. See note 3, supra. Morgan’s basic position

as we understand it is that on the evidence actually before the trial

court, it was plainly wrong in concluding as it did.

aha

aati iia

10a

could survive such a test. Morgan also asserts that

Judge Dixon prejudged her credibility in past pro-

ceedings and thus is disqualified from sitting at this

subsequent proceeding, citing Keating v. Superior Court,

45 Cal.2d 440, 289 P.2d 209 (1955) (trial judge

stated that he believed the defendant had _ willfully

given false testimony and that he therefore had no

confidence in the defendant’s integrity and veracity or

in certain books of account kept by the defendant). This

argument is significantly brought into question by the

failure to raise any bias objection during the April to

August hearings. In any event, the record does not es-

tablish that recusal was called for here.”

3. Public trial on contempt charges. A good portion of

the proceedings on August 26, the hearing on the con-

tempt show cause order, was open to the public. The

hearing was closed only for the segment of Morgan’s

testimony when she insisted upon reciting allegations as

to specific acts of sexual abuse upon H. She argues that

this limited closure violated her First and Fifth Amend-

ment rights to an open hearing. In so doing, she invites

us essentially to revisit the issues decided in our prior

Morgan opinions. This we decline to do.“

As we recently reasserted in Mokhiber v. Davis, 537

A.2d 1100, 1108 n. 8 & 1115-16 n. 13 (D.C.1988), family

—~‘tases involve special considerations. However disclosures

outside these proceedings and other developments may

13The guardian has provided her views on this issue as follows:

“Judge Dixon has demonstrated no impermissible bias which would

require his recusal. ... Judge Dixon has exercised great patience

and restraint with appellant. He has afforded her courtesy through-

out the proceedings. ... The delay and inconvenience that would

result from the trial court’s disqualification and the subsequent

reappointment of another judge is unthinkable.”

14 Although we did not expressly discuss any First Amendment

rights that Morgan may have, First Amendment cases were spe-

cifically considered in the opinion.

lla

ultimately affect the issue of continued closure, we do not

think the trial court erred in the limited closure of the

contempt proceeding on appeal before us."*

IV.

In addition to the civil incarceration of Morgan, the

trial court’s written order of August 27, 1987 provided:

That the plaintiff’s $200,000.00 bond previously posted

following this Court’s order of August 5, 1986, shall

be and hereby is forfeited at the rate of $5,000.00

per day, excluding Saturdays, Sundays and legal hol-

idays, until the minor child has been taken into the

custody of this Court and made available to the de-

fendant for visitation and for placement in accord-

ance with the further order of this Court.

Morgan asserts that the trial court lacked authority

to impose this specific condition. We agree.

The $200,000 security was posted pursuant to the

order of this court which stayed the civil contempt adju-

dication in August 1986. It took the form not of a

surety bond but rather of a deed of trust on certain

real property owned by Morgan, with the then Clerk

and Deputy Clerk of our court named as trustees. By

its terms, the deed of trust applied “in the event of

[Morgan’s] failure to appear before the Superior Court

. in the event that her commitment pursuant to the

15 Morgan also challenges other aspects of the order of April 13,

1987, limiting disclosures in this case. See note 5, supra. This

order was not appealed when entered, and it does not appear that

these issues are properly before us at this time. Unlike the motion

to open the hearing, which was denied on August 26, we are

unable to find in the record any ruling regarding the unsealing of

the record or modification of the closure order until the written

order of September 18, 1987, from which no further appeal was

taken. See McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.),

cert. denied, 469 U.S. 838, 105 S.Ct. 136, 83 L.Ed.2d 76 (1984).

12a

August 5, 1986, contempt order of that court is finally

affirmed on appeal.”

On June 30, 1987, we affirmed the contempt order.

The mandate was issued on July 21, 1987. By that time,

events had long since moved on to further matters.

Morgan was regularly appearing before the trial court.

Any issue of continuing contempt for failure to obey the

orders entered in 1986 was moot.

It is a settled principle of law that a mortgage or

bond or deed of trust or other security instrument oper-

ates as security for only those obligations which are

covered by the agreement of the parties and identified

by it. See, e.g., G. NELSON & D. WHITMAN, REAL ESTATE

FINANCE LAW 26 (2d ed. 1985); 12 AM.JuR.2d Bonds

§ 25 (1964); United States v. Powell, 639 F.2d 224, 225

(5th Cir.1981) (criminal fine imposed upon defendant

cannot be satisfied from appearance bond). There is

nothing in the record to show that Morgan agreed that

the deed of trust should be converted from essentially an

appearance bond to one securing her compliance with

trial court orders generally.** Therefore, the trial court

had no power to, in effect, order a foreclosure on the

deed of trust because of Morgan’s noncompliance with his

subsequent August 1987 orders. By that time, the deed of

trust had no more effect than a mortgage fully repaid

although not yet cleared from the record. See G. NELSON

& D. WHITMAN, supra, at 435-38. While it is true that

the trial court could have imposed a fine in the amount

of $5,000, that specific course of action was not chosen.

Any attempt to do so in the manner chosen here must

be deemed ..bortive.

16 In an order of December 19, 1986, finding Morgan in contempt

for failing to comply with an October 1986 order for a supervised

one-hour visit, the trial court stayed enforcement of the contempt

order pending appeal, “in accordance with the same conditions as

those imposed by the District of Columbia Court of Appeals in its

Order of August 7, 1986.” Although the appeal may be technically

still before us, see note i, supre, events have overtaken that De-

cember 1986 order as well; visitations resumed in February 1987.

13a

V.

A Kikuyu proverb tells us: ‘When elephants fight it

is the grass that suffers.” *7 Here, the grass is a little

girl who will be six years old this month. For almost a

year, she has been deprived of the company of both

father and mother. She is the principal figure in a

drama of appalling proportions, no matter what the

outcome.

The trial court here, as in many family division mat-

ters, has the deeply taxing and unenviable responsibility

of struggling to deal justly with changing lives. Inherent

in the process are new developments and events. One such

development occurred at oral argument before us. In her

brief to us, Morgan urged, as a “wiser and fairer” alter-

native, the appointment of a multi-disciplinary team of

neutral experts to evaluate H’s case and to recommend

an appropriate visitation schedule. The guardian from

an early point in her service** has consistently cham-

pioned this step. In our order of May 29, 1987, we ex-

pressed our confidence that the trial court would consider

the use of a court-appointed expert. Now, before us in

oral argument, Foretich announced that he no longer

opposed the creation of such a team.

We take no firm position on this alternative or other

surfacing issues not yet the subject of an appeal. But

time moves on as the impasse continues. Morgan cites

to us cases for the proposition that when civil coercion

fails to serve its coercive purpose, a contemnor must be

17 J. BARTLETT, FAMILIAR QUOTATIONS 925 (15th ed. 1980).

18The guardian was appointed on August 22, 1986, subsequent

to the August 1986 contempt proceedings. Her first recommenda-

tion proposing a team of neutral experts was filed on October 14,

1986.

We take this occasion to thank the guardian for continuing to

undertake this difficult assignment and for the assistance she has

provided to date to both the trial court and this court in dealing

with the complex legal and factual issues in this litigation.

l4a

released, e.g., Lambert v. Montana, 545 F.2d 87 (9th

Cir.1976) ; In re Cocilovo, 618 F.Supp. 1378 (S.D.N.Y.

1985), an argument to be first addressed to the trial

court. The long-term custody and visitation questions

remain unresolved, apparently in suspension pending the

outcome of this appeal and perhaps other matters. The

trial court faces the completion of findings on difficult

factual issues, which may include a determination of the

causes and extent of any physical or emotional stresses

borne by H. The now lengthy rupture in the gradually

increasing visitations of H and her father, the apparent

object of the trial court’s 1987 rulings, seems to change

the practical picture facing the court. The Fourth Cir-

cuit has recently handed down a decision in a related

jury trial proceeding between the parties in the Virginia

federal courts holding that the district court had erro-

neously refused to admit certain evidence probative of

possible abuse by Foretich both of H and of another

daughter. Morgan v. Foretich, 846 F.2d 941 (4th Cir.

1988). The relevance if any, of that decision and of the

other matters mentioned above to further proceedings

in the case in our jurisdiction, including a possible re-

opening of hearings, remains for consideration by the

trial court.’

Probably neither our courts nor any courts anywhere

in the world can deal in a perfect way with matters so

intimately linked to a family unit formed and dissolved.

We can but try. The little girl H grows older day by

day. It is she, first and foremost, to whom the courts

must seek to render justice as the process moves on.

That portion of the order below forfeiting Morgan’s

security is reversed. In all other respects, the orders

appealed from are affirmed.

SO ORDERED.

19 See notes 3, 9 and 12, supra. It is a valid question what, if

anything, further should or can effectively be done as long as H

remains secreted in defiance of court order.

15a

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 86-1137

JEAN ELIZABETH MORGAN,

Appellant,

Vv.

Eric A. FORETICH

Appellee.

Argued Nov. 18, 1986

Decided June 30, 1987

Before MACK, BELSON and STEADMAN, Associate

Judges.

STEADMAN, Associate Judge:

In Morgan v. Foretich, 521 A.2d 248 (D.C.1987)

[Morgan I], we recognized the qualified due process right

of a civil contemnor facing incarceration to a_ public

hearing in a child custody and visitation rights dispute.

We remanded the record to have the trial court reassess

its decision to close a civil contempt hearing in light of

our opinion. Today, we hold that the findings made by

the trial court in response to our opinion are adequate to

permit appellate review and to support its decision to

close the hearing. In addition, we decide the remaining

issues that we held in abeyance pending resolution of

the closure issue. We now affirm.

I.

In Morgan I, we directed the trial court to make spe-

cific findings weighing the qualified due process right of

16a

appellant, Morgan, to an open hearing against the best

interests and possible privacy interests of the child, H.,

and the reputational or other interests of the appellee,

Foretich, who opposed an open hearing. In response, the

trial court made findings on February 12, 1987 which

reaffirmed its August 5, 1986 oral ruling closing the

hearing.

The trial court primarily relied on a finding that

an open hearing would not have been in the best inter-

ests of the child, stating in part:

Since the initiation of these proceedings there have

been graphic descriptions of alleged acts, abuses and

occurrences by and to the minor child in testimony,

documents, photographs and videotapes. These alle-

gations are highly sensitive and inextricably inter-

twined with every phase of these proceedings. All

of this if revealed to the public would be embarras-

sing and damaging to the child and the child’s repu-

tation, now and in the future. To allow these allega-

tions to be published to the world and to allow this

Court to serve as a public forum on the issue of the

alleged abuse at the expense of compromising this

innocent child’s right to privacy and freedom from

notorious public scrutiny is adverse to the best in-

terests of the child.!")

1 Findings of Fact Responding to the Court of Appeals’ Opinion

and Order Dated February 6, 1987 (February 12, 1987), Appendix

at 4. The Appendix, which is incorporated by reference into the

Findings of Fact, is the trial court’s order of November 26, 1986

denying the Washington Post access to the record. That order,

which was not appealed by the Washington Post and was not part of

the appellate record in this case, relied on essentially the same fac-

tual basis for closure as the order in this case and was issued

before our opinion and remand. In the February 12 Findings of

Fact, the trial court notes and we agree that the existence and

content of the November 26 order should negate any inference

that the trial court’s February 12, 1987 findings justifying closure

are a post-hoc rationalization of the August 5, 1986 oral ruling

contrived to satisfy our February 6 opinion in Morgan I].

|

17a

Additional findings of fact that are part of the sealed

record on appeal contain a more graphic description of

the specific allegations and evidence that appellant sought

to introduce at the August 5 hearing. These findings,

unlike the trial court’s brief oral ruling on August 5,

see 521 A.2d at 249-50, sufficiently state the factual basis

of the trial court’s decision to permit appellate review.

While not every child in an abuse case needs such pro-

tection nor is complete closure necessarily the only rem-

edy, we take no issue with the trial court’s determina-

tion that on the facts presented here, an open hearing

on appellant’s proffered evidence on August 5 would have

been adverse to the best interests of the child and that

based on appellant’s proffered evidence, there was no ac-

ceptable alternative to closure. Furthermore, in this case,

this factor alone could outweigh appellant’s qualified due

process right to an open hearing. See Globe Newspaper

Co. v. Superior Court, 457 U.S. 596, 608, 102 S.Ct. 2613,

2620, 73 L.Ed.2d 248 (1982) (under stricter standard

applicable in criminal cases, closure can be ordered if

necessary to protect a minor sex crime victim). We

have considered but are not persuaded by appellant’s

numerous objections to the trial court’s findings. Under

the standard set forth in Morgan I, we hold that ciosure

of the August 5 hearing was not an abuse of discretion.*

2 The trial court also found that an open hearing would have been

unfair to appellee. The August 5 hearing was solely to determine

whether the contempt judgment held in abeyance should be entered.

Appellee would not have been able to respond to appellant’s public

accusations as the trial on the abuse issue had been conducted by

mutual consent in closed session and was completed on July 17.

Therefore a public hearing would not have advanced the preserva-

tion of the appearance of fairness, see Morgan I, 521 A.2d at 251.

To the contrary, it would have allowed appellant a one-sided, last

ditch effort to relitigate her case. These circumstances were also

an additional permissible consideration in the trial court’s decision

to close the hearing.

3 In the absence of clear direction from the Supreme Court, some

federal courts have reviewed trial court findings justifying closure

18a

II.

We now consider appellant’s other issues on appeal

which we held in abeyance. Appellant asserts various

errors in the August 5 proceeding at which the July 17

judgment of contempt was entered and appellant taken

into custody and in the August 15 Findings of Fact and

orders under an abuse of discretion standard, Publicker Industries,

Inc. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984) (closure of motion

hearings in civil suit); Jn re WFMJ Broadcasting Company, 566

F.Supp. 1036 (N.D.Oh. 1983) (access to criminal trials under

First Amendment), while others do not state the standard applied.

United States v. De Los Santos, 810 F.2d 1326, 1334 (5th Cir.

1987) (suppression hearing properly closed; panel evaluates under

the applicable test itself but also states that the trial court made |

adequate findings to support closure); United States v. Peters, 754

F.2d 753 (7th Cir. 1985) (voir dire improperly closed as trial

court’s findings lack specificity of overriding interest, fail to -

establish threat to impartial jury and fail to fully consider alterna-

tive or narrower closure: appears to be virtually de novo review).

We believe that some degree of discretion should be given to the

trial court’s assessment of the competing interests of the parties

in light of the facts and circumstances of the particular case, see

Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98

S.Ct. 1396, 1312, 55 L.Ed.2d 570 (1978); United States v. Criden,

675 F.2d 550, 562 (3rd Cir. 1982) (degree of discretion left open).

However, in light of the constitutional due process right at stake

the trial court’s exercise of discretion must be carefully reviewed

and supported by specific findings and articulated interests. In

this case. even under a de novo review of the record, we would

affirm the trial court’s ruling.

4We noted that during the course of proceedings in this appeal,

two motions to open the case for the taking of additional evidence

had been filed, the disposition of which might impact, by way of

mootness or otherwise, on the remaining issues in this appeal,

and that as of the date of the issuance of the Morgan / opinion, no

documents had been filed in the instant appeal concerning action

on those motions. 521 A.2d at 249 n. 2. Although the file still lacks

any such document, we understand that those motions were denied

by the trial court and are now pending before us in a subsequent

appeal in this litigation, No. 86-1615 (appeal filed December 9,

1986). We therefore see no reason to delay further in disposing

of the instant appeal.

EL ——————-

19a

Conclusions of Law disposing of appellee’s contempt and

change of custody motions and appellant’s motion to sus-

pend visitation. We discuss each contention in turn.’

1. Failure to Hear Proffered Evidence. Morgan ar-

gues that she was denied due process at the August 5

proceeding when the trial court refused to consider all

her proffered evidence. It is well settled that the rele-

vancy of proposed testimony is a decision entrusted to

the broad discretion of the trial judge. Johnson v. United

States, 452 A.2d 959 (D.C.1982). The trial court noted

that testimony on appellee’s multiple contempt motions

and Morgan’s motion to suspend visitation had been

taken between June 5 and July 17 and both sides had

rested. Therefore, the August 5 hearing concerned only

whether the judgment of contempt which had been with-

held on July 17, to allow Morgan two last opportunities

to permit visitation, should be entered. The trial court

decided to view the portions of the proffered videotapes

that concerned the child’s actions during the attempted

visitations on July 19 and August 1 but not to receive

evidence or testimony about events that took place after

the July 19 and August 1 visitation attempts or which

would have relitigated issues resolved at the contempt

trial less than a month previously.* In this instance

we are not persuaded that the trial court abused its

discretion in its evidentiary rulings, including the exclu-

5 See Morgan I, 521 A.2d at 249-50 for a brief statement of the

facts.

* Specifically, appellant sought to introduce a psychological evalu-

ation of the child performed after July 17 and videotapes made of

the child subsequent to the failed visitation attempts. The trial

judge also permissibly declined to hear appellant’s testimony after

hearing counsel’s proffer that Morgan would testify to her sub-

jective beliefs that the abuse had occurred. Appellant had testified

at length in the June and July proceedings on the abuse issue and

her August 5 proposed testimony would not have particularly

elucidated matters at issue.

20a

sion of evidence that was cumulative and/or not relevant

to the issues presented on August 5.’

2. Judgment of Contempt. The trial court held appel-

lant in civil contempt for refusing appellee visitation on

alternating weekends from February 1986 through July

17, 1986. Appellant never appealed the underlying No-

vember 1984 and December 1985 orders requiring visita-

tion, therefore she was under a continuing duty to com-

ply therewith. ‘“Noncompliance cannot be justified by

seeking to establish that the judgment was improvident.

Rather, justification is established only upon a showing

of inability to perform or substantial performance.”

Bolden v. Bolden, 376 A.2d 430, 432 (D.C.1977). Morgan

admitted that she did not turn the child over to appellee;

thus, she bore the burden of establishing justification for

noncompliance. Jd. In her brief, appellant contends that

the child’s refusal to go, particularly on July 19 and

August 1, as well as her duty to protect the child from

abuse amounts to a valid justification defense. To the

contrary, on the child’s refusal to go, the trial court made

a factual finding that “on each occasion, the [appellant]

had the total capacity to release H. to [appellee] and

that she chose not to do so without justification or ex-

cuse.” Our review of the record does not reveal that

this factual finding was clearly erroneous or without

evidence to support it. D.C. Code § 17-305(a) (1981).

7 Appellant alternatively argues that her proffers were part of

an oral motion for reconsideration based on newly discovered evi-

dence. Mahallati v. Williams, 479 A.2d 300, 305 (D.C. 1984)

(moving party must show that evidence is newly discovered, mov-

ant through due diligence could not have discovered evidence be-

fore lower court ruled, evidence is not merely cumulative or im-

peaching, evidence would have produced a different resu!t at a new

trial). In light of the length of time the matter had been at issue,

the volume of expert and other testimony presented, and the short

period of time since the decision, we hold that appellant then failed

to meet her burden under this standard, however it may be ap-

plied to a child visitation dispute in general.

|

2la

Appellant relies heavily on Beckham v. O’Brien, 176

Ga.App. 518, 336 S.E.2d 375 (1985), for the proposition

that a mother’s refusal to comply with court ordered

visitation with an alleged abuser is not contemptuous.

That case is distinguishable on several grounds. First,

the father had been indicted on a charge of sexual moles-

tation of the child subject to the visitation. The probable

cause finding by the grand jury convinced the court that

this was not a case of “simply an angry mother pointing

accusingly at her ex-husband in order to avoid his visi-

tation rights.” 336 S.E.2d at 337. In the case before us,

no prosecuting authority that has investigated the allega-

tions has brought charges against appellee, and more im-

portantly, the trial court conducted a trial on the abuse

issue and contemporaneously ruled in the father’s favor.

Furthermore, the Georgia court found exigent circum-

stances not present here, referring to the “unusually close

timing of the material events.” In contrast, in this case,

the trial court provided ample opportunity for Morgan

to try to prove her allegations of abuse before finding

her in contempt. Appellant failed to do so in both the

November 1985 trial from which she did not appeal an

adverse ruling and in the instant case. Even after ruling

against Morgan on the abuse issue on July 17 and find-

ing sufficient basis for contempt, the trial court exercised

considerable restraint by affording Morgan the opportu-

nity to avoid judgment and incarceration by allowing her

two additional opportunities to permit visitation. Fur-

thermore, Morgan was placed in the position of violating

the visitation order throughout the first half of 1986

through her own inaction rather than exigent circum-

stances brought on by the court’s rulings. Despite the

fact that appellee began filing motions for contempt as

early as February 1985, Morgan did not move to have

appellee’s visitation rights suspended until June 5, 1986.

Morgan cannot now avoid the consequences of her re-

peated disobedience to the court’s visitation orders by

22a

seeking refuge in the special facts of Beckham. The

judgment of civil contempt is affirmed.

3. Findings on the Allegations of Abuse. Morgan con-

tends that the trial court’s findings with regard to the

abuse issue were clearly erroneous. After listening to

voluminous conflicting evidence from numerous witnesses

and experts at this trial,* the trial court stated that al-

though appellant’s accusations had caused it to hesitate

and pause in order to be assured that the abuse did not

occur, it found that appellant had failed to prove by a

preponderance of the evidence that appellee had abused

the child. This court too has seriously considered appel-

lant’s arguments in its review of the record. We conclude

that the trial court’s resolution of conflicting testimony

and the witnesses’ credibility was not clearly erroneous.

D.C.Code § 17-305(a) (1981); see e.g., Cahn v. Antioch

University, 482 A.2d 120, 128 (D.C.1984).°

Affirmed.

8 This was the second trial on this issue. Morgan accused appellee

of similar abuse in earlier visitations. A trial was conducted be-

fore the same trial judge in November 1985 and appellant did not

appeal from an adverse verdict.

® Appellant also appeals a denial of her motion to compel appellee

to answer certain questions posed during a deposition relating to

proceedings involving appellee in another jurisdiction. It appears

from the record that subsequently appellee turned over two court

documents at issue and appellant’s attorney was given free rein

to cross-examine appellee on this subject during the hearings in

this case. The cross-examination of appellee was completed with-

out reserving any objection; therefore any error in the denial

of the motion is moot.

——

23a

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 86-1137

JEAN ELIZABETH MORGAN,

Appellant,

We

Eric A. FORETICH,

Appellee.

Argued Nov. 18, 1986

Decided Feb. 6, 1987

Before MACK, BELSON and STEADMAN, Associate

Judges.

STEADMAN, Associate Judge:

This appeal arises out of a bitter and litigious child

custody and visitation rights dispute. Custody was orig-

inally granted to appellant, Elizabeth Morgan, the

mother, while appellee, Eric Foretich, the father, was

awarded liberal visitation. After an extended period of

conflict over visitation and charges against appellee of

sexual abuse, the trial court granted appellee’s motions

for civil contempt against Morgan and ordered her in-

earcerated for refusing to turn the child over for visi-

tation.' Appellant raises numerous issues on appeal.

1 Appellant was released by this court by order of August 7

pending the outcome of this appeal. All the terms and conditions

of that order, including the bond, passnort custody, and travel re-

strictions, continue in full force and remain unaffected by this

opinion and remand of the record.

24a

For the purposes of this opinion we need decide only one:

Whether the trial court violated appellant’s due process

rights under the Fifth Amendment in refusing to grant

appellant’s request to open to the public the final hearing

at which she was ordered incarcerated.2, We hold that

the trial court did not make the specific findings that are

required by the applicable case law before closing the

hearing. Therefore, we remand the record to have the

trial court fully articulate the basis of its decision.

i.

Since the issue before us is one of law, we set forth

only those facts necessary to put the issue in perspective.

The child, H., was born in 1982, after her parents had

already separated. On November 8, 1984, Morgan was

awarded custody and Foretich given liberal visitation.

At that time, the trial court also granted the first of

many protective orders that have sealed all the trial

proceedings and records in this case.

2 The other issues raised by appellant are: 1) whether appellant

was deprived of due process at the August 5, 1986 proceeding

because the trial court declined to consider all the evidence prof-

fered by appellant; 2) whether the trial court’s finding of civil

contempt was clearly erroneous; 3) whether the trial court’s

finding with regard to sexual abuse was clearly erroneous; and

4) whether the trial court erred in refusing to compel discovery.

We hold these issues in abeyance at this time. Appellant filed in

this court two motions to remand the case to the trial court for the

purpose of taking additional evidence. One was filed on October 3,

1986, and the second on November 10, 1986. In our order of No-

vember 17, 1986, we indicated that these motions were best directed

to the trial court under Smith v. Pollin, 90 U.S.App.D.C. 178, 194

F.2d 349 (1952), and observed that disposition of the motions might

impact, by way of mootness or otherwise, on these other issues

raised in this appeal. No documents have been filed in the instant

appeal concerning action on these motions. Another separate appeal

(No. 86-1615) is pending before this court from a trial court

order dated December 8, 1986, which may involve disposition of

these or like motions. The record on that appeal, however, is

still incomplete. Hence, this opinion deals only with the issue of a

public hearing.

25a

Beginning in January 1985, appellant began to make

accusations that appellee was sexually abusing H. during

visitation. Further litigation ensued but appellee re-

tained visitation rights. Appellee’s last visit with H.

prior to the summer contempt proceedings took place in

February 1986. After the February visit, Foretich al-

leged that appellant repeatedly refused to turn the child

over to him for his court ordered visitation. He there-

fore filed multiple motions to have Morgan held in con-

tempt. Hearings were held in June and July of 1986

on several motions, including Foretich’s motions for con-

tempt and change of custody and Morgan’s motions for

temporary suspension of visitation and to compel dis-

covery. On July 17, the trial judge orally announced his

findings of fact and conclusions of law. He found that

appellant had disobeyed the visitation orders without law-

ful justification or excuse, but withheld judgment of

contempt contingent upon her turning over the child for

visitation on July 19.*

The next hearing, held on August 5, 1986, was to

determine whether the court should enter the judgment

of contempt which had been held in abeyance on July 17.

Appellant stated that H. had not been turned over to

appellee on July 19 and proffered to the court evidence

that she felt would support a justification defense.

Appellant then requested that the courtroom be opened

stating that, “inasmuch as she is entitled to a public

trial, inasmuch as any person subject to incarceration

would be entitled to . . . and that right supersedes the

interest in maintaining this in a closed fashion.” The

court denied the request, stating:

But I think based upon everything I am aware that

this is totally an inappropriate time to open this

matter in consideration with everything going for-

3 The court also denied the motions for change of custody and

temporary suspension of visitation.

26a

ward, parties litigating behind closed doors, because

all anyone would be seeing is this last one effort on

the part of Dr. Morgan to demonstrate to me that

the child could not have been turned over or should

not have been turned over. I think your request is

totally unfair to all the parties involved, so your

request will be denied at this time... .

The court reserved the possibility that future hearings

in this case could be open to the public and that the

entire file might be opened at a later date.‘

II.

Appellant claims that a defendant in a civil contempt

proceeding has a Fifth Amendment due process right to

a public trial relying on Jn re Oliver, 333 U.S. 257, 68

S. Ct. 499, 92 L.Ed. 682 (1948). Appellee first makes

three technical objections before addressing appellant’s

public hearing argument: 1) the issue was not preserved

because Morgan never appealed from the August 6 writ-

ten order that appellee alleges confirmed the closure the

previous day;* 2) appellant waived whatever right to an

open hearing may exist by failing to assert it at the

beginning of the hearings on the contempt motions in

June;* and 3) irrespective of any theoretical right, D.C.

4 This is the entire record concerning Morgan’s attempt to open

the proceedings. Appellant did not give the court advance notice

of her request nor submit any memoranda or case law to support

her argument at the hearing. Therefore, despite our ultimate con-

clusion that the trial judge did not make the required findings, we

imply no criticism of the trial judge’s performance. To the con-

trary, it appears to us at this juncture that he had handled a

difficult case with skill and impartiality.

5 Appellant filed notices of appeal on August 5 as well as from

the August 15 written findings and conclusions of law. Appellant

had objected to closure at the August 5th hearing. The issue is

properly before us.

6In Levine v. United States, 362 U.S. 610, 618, 80 S.Ct. 1038,

1043, 4 L.Ed.2d 989 (1960), Justice Frankfurter wrote with re-

spect to a grand jury witness:

27a

Code § 16-2344 (1981), required that the trial court close

the hearing.* Appellee also contends that the constitu-

Having refused to answer each question in turn, and having

resolved not to answer at all, petitioner then might well have

insisted that, as summary punishment was to be imposed, the ;

courtroom be opened so that the act of contempt, that is, his

definitive refusal to comply with the court’s direction to answer

the previously propounded questions, and that the consequent

adjudication and sentence might occur in public.

If some part of the right remains until that moment when the

final act of contempt is complete and judgment is about to be

entered, Morgan must have retained the right to object at the

beginning of the August 5 hearing, as the proceedings had not

yet reached that point. We see no reason, however, why Morgan’s

delay could not be taken into consideration as one relevant factor,

as indicated in the trial court’s explanation quoted above, for deny-

ing the August 5 request. However, we note that Morgan sought

to have more than her last act of defiance held in open court. She

sought to introduce evidence that she believed would justify her

refusal to turn over the child. As appellant did not renew her

request to open the hearing at the moment when “summary punish-

ment was to be imposed,” the Levine issue is not before us today.

7 Section 16-2344 provides:

Upon trial of a proceeding over which the [Family] Division

has jurisdiction under paragraph (3), (4), (10) or (11) of

Section 11-1101, the court may exclude the general public and

at the request of either party, shall exclude the general public.

(Emphasis added. )

D.C.Code § 11-1101(4) (1981) gives exclusive jurisdiction to

the Family Division over “actions seeking custody of minor chil-

dren... .” Appellee cited § 16-2344 in his motion for closure back

in November 1984. The trial court granted the motion relying on

“the authorities cited in appellee’s motion.” Since then, the trial

court has granted his requests for closure and Morgan has acceded

to his requests. Therefore he contends that closure was based on

his origina! assertion of § 16-2344, as these hearings concerned

both the motions for contempt and Foretich’s motion for custody

and Morgan’s motion to suspend visitation, the latter motions

falling within the scope of proceedings covered by § 16-2344. (We

will assume that appellee correctly interprets the scope of § 16-2344.)

However, the trial judge did not refer to § 16-2344 in his oral

ruling. He seems to have approached the issue as a fairness in-

a

28a

tional right to a public trial in criminal cases does not

apply in child custody civil suits and that alternatively

the closure of the hearing was consistent with the fair-

ness interests normally protected by public trials and

compelled by the need to protect the child. Since appel-

lee’s technical arguments will be effectively mooted if the

hearing had been properly closed, we concentrate directly

on the constitutional issues.

III.

We hold that a civil, as well as a criminal, contemnor

has a qualified right not to be incarcerated in a secret

proceeding. In In re Oliver, supra, a grand jury witness

was summarily held in criminal contempt and sentenced

in a secret proceeding. The Supreme Court held:

In view of this nation’s historic distrust of secret

proceedings, their inherent dangers to freedom, and

the universal requirement of our federal and state

governments that criminal trials be public, the Four-

teenth Amendment’s guarantee that no one shall be

deprived of his liberty without due process of law

means at least that an accused cannot be thus sen-

tenced to prison.

Id. 333 U.S. at 273, 68 S.Ct. at 507. Appellant relies

on footnote 13 in Jn re Oliver, 333 U.S. at 266, 68 S.Ct.

at 504, which suggests that the distinction between civil

and criminal contempt is “not material in resolving the

due process question.” The Second Circuit came to the

quiry, requiring a balancing test. In Part III, we will hold that

the trial court did not sufficiently articulate the interests at stake

or make the specific findings necessary for appellate review. There-

fore, we need not reach the statutory issue. If upon remand, the

trial court relies in whole or in part on § 16-2344, then the consti-

tutionality of that section might be called into question by appel-

lant, see Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Jn re Washington Post Co.,

807 F.2d 383 (4th Cir. 1986), and the United States Attorney

General must be notified. Super.Ct.Civ.R. 24(c); D.C.App.R. 52.

errr C twt”~—

29a

same conclusion in Jn re Rosahn, 671 F.2d 690 (2d Cir.

1982). We are persuaded by Judge Mansfield’s testi-

mony. He stated:

While the passages quoted from In re Oliver '*! were

written primarily with criminal trials in mind, it is

significant that the contempt sentence overturned by

the Oliver Court on the ground that the contempt

proceeding below had been improperly closed to the

public was a conditional jail sentence that would

have terminated upon compliance with the trial

court’s order. Accordingly, the Oliver analysis was

applied to invalidate a contempt sanction whese cen-

tral characteristic—its conditional nature—is typical

of a civil contempt. See United States v. Wendy,

575 F.2d 1025, 1029 n. 13 (2d Cir.1978) (discussing

distinction between civil and criminal contempt).

Id. at 696 (emphasis in original). Furthermore the

policy considerations are the same:

Given the burden that imprisonment imposes on an

individual, a civil contempt trial that could result

in an order of confinement carries with it the same

concerns and purposes that lead to the requirement

of a public trial in the criminal context, such as the

need to assure accountability in the exercise of judi-

cial and governmental power, the preservation of the

appearance of fairness, and the enhancement of the

public’s confidence in the judicial system.

Id. at 697. The Rosahn opinion also notes that the con-

clusion that civil contemnors like criminal contemnors

have some right to a public proceeding is consistent with

the trend in federal courts to “afford the same or similar

procedural safeguards to persons charged with civil con-

tempt as to those charged with criminal contempt.” Jd.

at 697.

8 The passages referred to include the one quoted supra.

30a

Although we conclude that a civil contemnor has a

Fifth Amendment due process right to a public hearing,

©S appellant concedes, such a right is not absolute. She

argues, however, that as in cases under the First and

Sixth Amendments that guarantee open proceedings to

defendants and the press in criminal cases, there is a

presumption of openness which

may be overcome only by an overriding interest

based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that

interest. The interest is to be articulated along with

findings specific enough that a reviewing court can

determine whether the closure order was properly

entered.

Press-Enterprise Co. v. Superior Court, 464 U.S. 501,

510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) ;° see

also Richmond Newspaper, Inc. v. Virginia, 448 U.S.

555, 581, and n. 18, 100 S.Ct. 2814, 2829, and n. 18, 65

L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 608-09, 102 S.Ct. 2613, 2620-21,

73 L.Ed.2d 248 (1982) (First Amendment); Waller v.

Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.

2d 31 (1984) (Sixth Amendment) (“the party seeking

to close the hearing must advance an overriding interest

that is likely to be prejudiced, the closure must be no

®In Press-Enterprise the Supreme Court held that the guarantee

of open proceedings in criminal trials covers the voir dire examina-

tion of potential jurors. The defendant and the state favored

closure, while petitioner, a member of the media, requested access.

Interestingly, the majority opinion does not explicitly rely on the

First Amendment, rather it seems to rest on historical practice

(or possibly the Sixth Amendment). Nevertheless, the majority

does cite Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102

S.Ct. 2613, 73 L.Ed.2d 248 (1982), which is clearly a First Amend-

ment case, as authority. Globe Newspaper held that the press

and public have a qualified right to attend criminal trials, over-

turning a Massachusetts statute that mandated that all trials in-

volving minor victims of sex crimes be closed.

3la

broader than necessary to protect that interest, the trial

court must consider reasonable alternatives to closing the

proceeding, and it must make findings adequate to sup-

port the closure’’).

We hold, however, that the presumption of openness

and the standard for closure that apply in criminal cases,

where the constitutional threshold for closure is highest,

do not apply to the evidentiary phase of a civil contempt

hearing in a child custody and visitation rights case.” A

less stringent standard is applicable to the instant case.

We base this conclusion in part on the fact that Family

Division proceedings do not have the same tradition of

openness as criminal or non-family civil cases." For ex-

ample, until the passage of the Matrimonial Causes Act

of 1857, exclusive jurisdiction in England over marriage

and divorce was in the ecclesiastical courts. H. CLARK,

10 We note that we write on a clean slate. The public hearing

right for contemnors arising under the Fifth Amendment was

recognized by the Supreme Court in the context of a grand jury

inquiry, a proceeding where there is no presumption of openness;

to the contrary, grand juries have historically been closed. There-

fore the defendant-witness has no right to have the grand jury

questions read in public, only the summary trial and sentencing

can be held in open court. Levine v. United States, supra, 362 U.S.

at 618, 80 S.Ct. at 1043; In re Oliver, supra. In this case, for

the first time, a contemnor seeks to publically assert a substantive

defense in a proceeding other than one with a tradition of com-

plete secrecy.

11 Several federal circuits have extended the strict standard to

First Amendment claims for access to civil cases relying on Supreme

Court dicta in Richmond Newspapers, Inc. that “historically both

civil and criminal trials have been presumptively open.” 448 U.S.

at 580 n. 17, 100 S.Ct. at 2829 n. 17. See Publicker Industries, Inc.

v. Cohen, 733 F.2d 1059 (3rd Cir. 1984); Westmoreland v. Columbia

Broadcasting System, 752 F.2d 16, 23 (2d Cir. 1984). These cases

are inapposite here, and we take no position on them. See note 12

infra. Although technically classified as civil cases, family proceed-

ings do not have the same historical presumption of openness as

discussed above.

32a

Law of Domestic Relations 281-82 (1968). In these

courts it appears that witnesses were often deposed in

private. C. v. C., 320 A.2d 717, 726-27 (Del.1974); 3

W. BLACKSTONE Commentaries 373. That approach,

though modified by constitutional protections and the

absorption of domestic relations into the common law

courts, has been extended in this country. See Unif.

Marriage and Divorce Act §406(c) 9A U.L.A. 206

{1973} (court may exclude public from a custody hear-

ing); Annotation, Propriety of Exclusion of Press and

Public or Other Media Representatives from Civil Trial,

79 A.L.R.3d 401, 405-07 (1977) (in divorce proceedings

trial judge has inherent power to exclude the press if

their presence would interfere with the proper adminis-

tration of justice); Nixon v. Warner Communications,

Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d

570 (1978) (approving the proposition that common law

right of inspection of court records bows before power of

court to insure that its records are not used to gratify

private spite or promote public scandal in divorce suits).

This rationale based on past practice is also supported by

current statutory protections for minor children in these

cases. Since custody and visitation rights determinations

are based on an analysis of “the best interests of the

child,” and since the evidentiary phase of civil contempt

proceedings adjudicating violation of visitation orders

necessarily implicates the child’s interests, a presumption

of openness would be inappropriate.

Thus we conclude that the presumption of openness

that underlies the Press-Enterprise standard does not

attach to the evidentiary phase of a civil contempt hear-

ing in a child custody and visitation rights case. Open-

ness or closure must be determined on a case by case

basis with no presumption attaching to either. The trial

court must balance the qualified due process right of the

contemnor to an open civil contempt proceeding against

the best interests and possible privacy rights of the child

33a

and the reputational or other interests of those opposing

an open hearing.”

Although we hold that it would be inappropriate to

apply a test as stringent as that enumerated in Press-

Enterprise in the instant case, we also conclude that the

trial judge should have recognized appellant’s limited

right to have an open hearing and weighed that right

against the interests of the child and appellee as indi-

cated above, and made explicit findings supporting his

ruling. We therefore remand the record so that the trial

court may consider his decision to close the August 5

hearing in light of the competing interests involved and

make findings specific enough for us to determine how

he weighed the interests of appellant, appellee, and the

child in the context of the qualified constitutional right

of a civil contemnor to a public hearing that we recog-

nize today.

While this procedure might be criticized for permitting

the trial court to construct a post hoc rationalization to

support its original ruling, we do so here because our

examination suggests that the record would support clo-

sure in this case “ under even the strict Press-Enterprise

standard advocated by appellant. See Globe Newspaper

Co. v. Superior Court, supra (on a case-by-case basis,

12 We emphasize that our holding is limited to the evidentiary

phase of a civil contempt proceeding in the Family Division. We

are not presented with other proceedings in the Family Division

not involving the potential for incarceration of one of the parties.

Nor are we presented with the question of openness or closure in

civil contempt proceedings outside the Family Division.

12 By closure we refer to closure of the proffer and presentation

of evidence and argument by counsel on the substantive issues con-

cerning contempt. The right to have the final act of defiance and

order of incarceration held in open court, discussed in Levine,

supra, may be closer to an absolute right and closure of that part

of a contempt hearing might be governed by a stricter standard.

We mention again that appellant did not renew her request when

the August 5 proceedings reached this point.

heen

34a

trial courts may determine that closure is necessary to

protect the physical and mental well-being of a minor

sex crime victim). We conclude, however, that in light

of the Supreme Court’s insistence on_articulated interests

and specific findings, most recently in Press-Enterprise

Co. v. Superior Court of California (Press-Enterprise

IT), US. , 106 S.Ct. 2735, 92 L.Ed.2d i

(1986), it is inadvisable for such a conclusion to remain

only implicit in the record.”

Accordingly, the record on appeal is remanded to the

trial court for action consistent with this opinion.

So ordered.

14 We note, however, that in an analogous case at least one fed-

eral circuit came to a contrary conclusion. Jn re lowa Freedom of

Information Council, 724 F.2d 658 (8th Cir. 1983) (failure of the

trial court to give a member of the media a hearing and make

findings in a civil contempt suit closed because it involved trade

secrets held to be harmless error; panel evaluates the trade secret

question itself and decides there were no alternatives to closure

and therefore no need to remand the case).

35a

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987

JEAN ELIZABETH MORGAN,

Appellant,

V.

ERIC A. FORETICH,

Appellee.

Filed Apr. 22, 1988

BEFORE: Mack, Belson and Steadman, Associate

Judges.

ORDER

On consideration of the motion of the Washington Post

to intervene in these consolidated appeals for the limited

purpose of seeking access to the record on appeal, it is

ORDERED that the motion to intervene is granted.

Mokhiber v. Davis, 587 A. 2d 1100 (D.C. 1988). It is

FURTHER ORDERED that upon intervenor’s further

motion, the briefs filed in this court shall be redacted to

reflect considerations of privacy and fairness (see Mor-

gan v. Foretich, 521 A. 2d 248, 528 A. 2d 425 (D.C.

1987); Mokhiber v. Davis, supra; and relevant trial

court orders) and shall then be made available, as well

as this court’s docket entries. It is

FURTHER ORDERED that a decision on the request

for access to trial court transcripts and documents is

held in abeyance pending determination of any appeal

from the trial court’s actions with respect thereto.

36a

PER CURIAM

Copies to:

Honorable Herbert B. Dixon, Jr.

Clerk, Superior Court

Stephen H. Sachs, Esquire

Juanita A. Crowley, Esquire

2445 M Street, N.W.

Washington, D.C. 20037

Lyle Jeffrey Pash, Esquire

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

G. Allen Dale, Esquire

307 G Street, N.W.

Washington, D.C. 20001

Dr. Eric A. Foretich

1515 Chain Bridge Road

McLean, Virginia 22101

Linda Holman, Esquire

Speights & Micheel

2000 L Street, N.W. —

Washington, D.C. 20036

Kevin T. Baine, Esquire

839 17th Street, N.W.

Washington, D.C. 20006

37a

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987

JEAN ELIZABETH MORGAN,

Appeilant,

Vv.

Eric A. FORETICH,

Appéilee.

[Filed Aug. 30, 1988]

BEFORE; MACK, BELSON, and STEADMAN, Associate

Judges.

ORDER

On consideration of the motion of appellant for stay

of mandate, it is

ORDERED that the motion is denied and the Clerk

is directed to issue the mandate forthwith.

PER CURIAM

Copies to:

Honorable Herbert B. Dixon, Jr.

Clerk, Superior Court

Juanita A. Crowley, Esquire

2445 M Street, N.W.

Washington, D.C. 20037

38a

Stephen H. Sachs, Esquire

2445 M Street, N.W.

Washington, D.C. 20037

G. Allen Dale, Esquire

307 G Street, N.W.

Washington, D.C. 20001

Lyle Jeffrey Pash, Esquire

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

‘Dr. Erie A. Foretich, Pro Se

1515 Chain Bridge Road

Suite 206

McLean, Virginia 22101

Linda P. Holman, Esquire

2000 L Street, N.W.

Suite 810

Washington, D.C. 20036

Kevin T. Baine, Esquire

839 17th Street, N.W.

Washington, D.C. 20006

39a

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

DOMESTIC RELATIONS BRANCH

Family Division :

Civil Action No. D 684-83

JEAN ELIZABETH MORGAN,

Plaintiff,

V.

Eric A. FORETICH,

Defendant.

[Filed Nov. 8, 1984]

ORDER

Upon consideration of the defendant’s Motion for Pro-

tective Order and the Exclusion of Press or Other Media

Representatives and the General Public from the Trial

and Other Proceedings, filed in writing prior to the trial

in this case, and the defendant’s motion to seal the entire

record made orally on the first day of trial, and the au-

thorities cited by the defendant in support thereof, and

for the reasons stated by the Court at the outset of the

proceedings in its ruling pendente lite granting the de-

fendant’s motion for protective order, exclusion, and

sealing, and because the Court finds that it would be

contrary to the best interest of the child, Hilary Antonia

Foretich, for the record of these proceedings not to be

kept seeret, and for good cause and in the exercise of this

Court’s sound discretion, it is hereby

40a

ORDERED: that the defendant’s Motion for Protec-

tive Order, Exclusion of the Press and the Public from

the Trial and Other Proceedings, and the defendant’s

motion to seal the entire record, be and hereby is granted,

and it is further

ORDERED: that the Clerk of the Court shall seal

the court file in this case and restrict access to the file

to everyone except the parties, their counsel, and the

Court.

SO ORDERED this 8th day of November, 1984.

s/ Bruce S. Mencher

BRUCE S. MENCHER, Judge

Copies to:

Hal Witt, Esquire

John C. Lenahan, Esquire

4la

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Family Division

C.A. No. D-684-83

JEAN ELIZABETH MORGAN,

Plaintiff,

V.

Eric A. FORETICH,

Defendant.

[Filed Nov. 26, 1986]

MEMORANDUM OPINION AND ORDER

I.

This matter comes before the Court upon the Motion

of the Washington Post Company (“the Post”) to inter-

vene in this case for the limited purpose of asserting its

claimed First Amendment and common law rights to

attend the proceedings and to secure access to relevant

pleadings and records. The motion seeks not only to open

all future proceedings to the public, but also to unseal

approximately two years of records, documents, proceed-

ings, and testimony. At issue in this case is a long-

standing dispute between the plaintiff, Jean Elizabeth

Morgan, and the defendant, Eric A. Foretich, regarding

both custody of and the Defendant’s visitation rights

with a minor child of the parties.

In its Memorandum and Supplemental Memorandum

of Points and Authorities in Support of the motion, the

Post argues that intervention and access to the record

and proceedings in this case are appropriate because

asinine

42a

(1) the public and the press have a First Amendment

right of access to these proceedings, (2) the public and

the press have a common law right of access to these

proceedings, (3) that there is no compelling justification

for denying the public’s right of access to these proceed-

ings, and (4) that the public has a particularly strong

interest in attending proceedings that may result in

imprisonment for contempt. In short, the Post argues

that the Court’s protective order of November 8, 1984,

excluding the press or other media representatives and

the general public from the trial and other proceedings

in this case, does not satisfy the requirements of the

First Amendment and common law, and that the order

does not justify closure of any hearings in this case—

in particular a hearing that raises even the possibility

of contempt and imprisonment.

In consideration of the Plaintiff’s Response in Support

of and the Defendant’s and Guardian ad Litem’s Re-

sponses in Opposition to the Post’s motion, and based on

the record herein, the Court concludes that the Post’s

motion to intervene and for access should be DENIED.

The Court proceedings herein have been closed to the

public and the press, and tthe record has been sealed

since 1984. The authority of the Court to close such

proceedings is found in D.C. Code § 16-2344, which pro-

vides in pertinent part:

Upon trial or proceedimgs over which the Family

Division of the Superior Court has jurisdiction under

paragraph (3), (4), (10) or (11) of Section 11-

1101, the Court may exclude the general public and,

at the request of either party, shall exclude the

general public.

D.C. Code § 11-1101(4) giwes exclusive jurisdiction to

the Family Division of the Superior Ceurt over “actions

seeking custody of minor children . . .” as well as other

matters that are presently and will continue to be before

this Court.

gl

43a

On several occasions since the beginning of the pro-

ceedings in this case,' the Court has issued written or-

ders closing the proceedings and the record herein pur-

suant to D.C. Code § 16-2344. In the Court’s order dated

November 8, 1984, Judge Bruce S. Mencher granted the

Defendant’s Motion for Protective Order, Exclusion of

Press and Public from the Trial and Other Proceedings

and the Defendant’s Motion to Seal the Entire Record.

Since that ruling, all records, documents, testimony, plead-

ings and evidence have been sealed, and all proceedings

have been closed pursuant to the Court’s authority under

D.C. Code § 16.2344. Not until August 5, 1986 did the

issues of opening the proceedings to the public and un-

sealing the record arise.*

The Defendant and the Guardian ad Litem in their

responses to the Post’s motion argue that closure is

mandated by D.C. Code § 16-2344 upon their request,

and necessary in order to protect the best interests of

the minor child. This member of the Court agrees based

on the record herein.

Since the initiation of these proceedings there have

been graphic descriptions of alleged acts, abuses and oc-

currences by and to the minor child in testimony, docu-

1 November 8, 1984; December 4, 1985; July 29, 1986; August 7,

1986 and October 29, 1986.

2 The Court notes Plaintiff’s original opposition to closure at the

outset of the proceedings in 1984. At no time did the Plaintiff

appeal or indicate an intention to appeal Judge Mencher’s Order

of November 8, 1984. All counsel invoked the Order at the outset

of the November 1985 proceedings before this member of the Court,

and Plaintiff joined or acquiesced to subsequent Motions to Seal

and Close.

* Previous to this date, the Court conducted closed proceedings

on November 19, 20 and 21, 1985; June 5, 6, 10, 12 and 13, 1986;

July 1, 2, 8, 9, 14, 15 and 17, 1986; and also met privately with

counsel and the parties on two occasions in an attempt to resolve

the pending issues short of litigation.

44a

ments, photographs and videotapes. These allegations are

highly sensitive and inextricably intertwined with every

phase of these proceedings. All of this if revealed to the

public would be embarassing and damaging to the child

and the child’s reputation, now and in the future. To

allow these allegations to be published to the world and

to allow this Court to serve as a public forum on the

issue of alleged abuse at the expense of compromising this

innocent child’s right to privacy and freedom from no-

torious publie scrutiny is adverse to the best interests

of the child. At this time these proceedings shall remain

closed and the record shall remain sealed. There appears

to be no alternative to closure at this time.*

The Post argues that the order of November 8, 1984

can no longer serve as the Court’s justification for closure

of these proceedings. The Post further argues that the

public has a particularly strong right of access in con-

tempt proceeding than in other proceedings, thus sub-

jecting closure to greater scrutiny. In the advancement

of its arguments, the Post submits that the press and the

public’s First Amendment and common law rights of

access are absolute and unconditional; Globe Newspaper

Co. v. Superior Court, 102 S.Ct. 2613, 457 U.S. 596, 73

L.Ed. 2d 248 (1982); Press-Enterprise Co. v. Superior

Court, 104 S.Ct. 819, 464 U.S. 501, 78 L.Ed. 2d 629

(1984); Richmond Newspaper, Inc. v. Virginia, 100

S.Ct. 2814, 448 U.S. 555, 65 L.Ed. 2d 973 (1980); and

that the Court’s closure of all proceedings, absent strong

justification, must surrender to the public’s right of

access.

The Court’s reading of Globe, Press-Enterprise and

Richmond Newspaper is distinguishable from that of

* The Court is not cognizant of any practical way that the parties

can proceed and present their cases inclusive of all uocuments, testi-

mony, photographs, videotapes and records by omitting and not

referencing highly sensitive and nonpublic information specific to

the allegations herein.

45a

the Post. The proposition for which those cases stand

involves a delicate case-by-case balancing of govern-

mental interests against those of the public to seek access.

Even in criminal trials where the constitutional thresh-

old for closure is at its highest, trial courts have the

discretion to determine on a case-by-case basis whether

closure is necessary to protect a minor victim. Globe

Newspaper, Co. v. Superior Court, 457 U.S. 596, 608

(1982). Neither the First Amendment right of access

nor the common law right of access is absolute.

The Court concludes that, in the context of this case,

the need to protect the child’s right to privacy and free-

dom from notorious public scrutiny as a result of the

allegations herein is of utmost importance and signifi-

cance. This Court’s justification for closure is not only

a compelling interest, but also one which is stated with

the “requisite specificity” needed to support exclusion of

the public from these proceedings. See Press Enterprise

Co. v. Superior Court, 464 U.S. 501, 513 (1984). There-

fore, even if Globe and other cases cited by the Post

are controlling, this Court has stated its jusitfication for

closure notwithstanding the order of November 8, 1984.

The Post further argues that if not the entire pro-

ceeding, then the portions which pertain to contempt

should be opened because of the importance of the case.®

In other words, the Post would be satisfied with just

parts of the record. Considering the advanced stage of

these proceedings, the Post’s willingness to settle for

parts of the recent record causes this member of the

Court to wonder if the motion is based upon a genuine

assertion of First Amendment or common law rights

to be present at proceedings in order to report to the

public, or extreme curiosity geared toward sensational-

5In support of its claim of the importance of these proceedings,

the Post cites its own publication of August 26, 1986 that “the

Morgan-Foretich battle has become a symbol for both feminists

and fathers’ rights groups.”

| Se

46a

ism. As stated by the Supreme Court in Nixon v. War-

ner Communications, Inc., 435 U.S. 589, 598 (1978):

Every Court has supervisory power over its own

records and files, and access has been denied where

court files might have become a vehicle for improper

purposes. For example, the common-law right of

inspection has bowed before the power of a court to

insure that its records are not ‘used to gratify pri-

vate spite or promote public scandal’ through the

publication of ‘the painful and sometimes disgusting

details of a divorce.’ In re Caswell, 18 R.I. 835,

836, 29 A. 259 (1893), Accord. eg., C. v. C., 320,

A.2d 717, 723, 727 (Del. 1974).

Il.

At a hearing on October 29, 1986, plaintiff and her

counsel claimed that the orders closing these proceedings

and sealing the record are so vague that they have no

idea what conduct on their part is prohibited, and re-

quested the Court to specify the restrictions imposed

upon the parties. In response to that request the parties

and counsel are advised that if they should discuss these

proceedings with the press, the media or the general

public, they shall not reveal nor shall they publish or

produce in any manner or fashion any of the following

relating to the child. First, no mention may be made

with regard to the child’s name, age, sex and address.

Second, no mention may be made of the school or day

care (past, present or future) that the child may attend,

the religious institution with which the child may be

affiliated, or whether there are any siblings. Third, spe-

cific contents of documents, medical records, records of

proceedings, records of testimony, records of evidence,

photographs, videotapes, and images of the minor child

or this case are strictly prohibited from discussion, pro-

duction and publication. And finally, no mention may

be made of any specific act alleged to have been com-

mitted by or upon the child. The most descriptive word

47a

which may be used is “abuse,” without reference to a

particular kind of abuse such as physical, mental, psycho-

logical or sexual.®

The Court is not blind to the fact that some of the

above details may already have been disclosed in one

form or another. If such a revelation has occurred, it

will not dissuade this Court from preventing future dis-

closure not in the best interests of the child. Upon the

request of any party, the Court will reconsider any

restriction specified by this order if it is overly burden-

some or not necessary for protection of the child’s

welfare.

Therefore, it is by the Court this 26th day of Novem-

ber, 1986

ORDERED, that the Washington Post’s Motion to In-

tervene and for Access shall be and is hereby denied,’

and it is further

ORDERED, that the parties shall restrict their out-

side discussions and disclosures concerning the minor

child in this case in accordance with this order.

s/ Herbert B. Dixon, Jr.

HERBERT B. DIXON, JR.

Judge

(Signed in Chambers)

6 The Court will not attempt to restrict the parties in terms of

information they choose to reveal concerning themselves; however,

every effort will be made to restrict other information the public

can use to notoriously identify the child, now or in the future.

7 By an order dated November 17, 1986, the D.C. Court of Ap-

peals denied a motion by the Post to intervene in the appellate

proceedings and took under advisement the Post’s motion for access

to appellate briefs.

48a

Copies to:

Richard L. Ducote, Esquire

G. Allen Dale, Esquire

307 “G” Street, N.W.

Washington, D.C.

Counsel for Plaintiff

Linda P. Holman, Esquire

733 - 15th Street, N.W.

Suite 700

Washington, D.C. 20005

Guardian ad Litem

John C. Lenahan, Esquire

3920 University Drive

Suite 370

Fairfax, VA 22030

Counsel for Defendant

Kevin T. Baine, Esquire

Nicole K. Seligman, Esquire

Williams and Connolly

839 - 17th Street, N.W.

Washington, D.C. 20005

Attorneys for the Post

49a

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

FAMILY DIVISION

C.A. No. D-684-83

JEAN ELIZABETH MORGAN,

Defendant

ws

Eric A. FORETICH,

Plaintiff

ORDER AMENDING PUBLIC DISCLOSURE

RESTRICTIONS

In accordance with the oral ruling from the bench on

April 6, 1987, counsel and all parties herein are relieved

of certain restrictions discussed in the court’s memoran-

dum opinion and order dated November 26, 1986, with

regard to information and details concerning the pro-

ceedings herein. The full scope of the prior sealing or-

ders for future hearings is no longer necessary for the

protection of child’s welfare.’

Therefore, notwithstanding previous orders sealing the

record herein, it is this 13th day of April, 1987

ORDERED:

1. That should the parties or counsel discuss these

proceedings with the press, the media or the general

public, mention may be made of the child’s name, age,

sex and other biographical information, including iden-

tification of siblings. Moreover, reference may be made

1 Indeed, some of the restrictions proved cumbersome for the

parties and counsel to maintain their discussions and presentations

during public court proceedings.

|

50a

to the terms physical, mental, psychological, sexual or

other types of abuse, provided no mention may be made

of any specific sex abuse allegation.

2. Prior to any reference in court to a specific sex

abuse allegation, counsel shall discuss the matter at the

bench so as to allow a determination if the hearing should

be closed. Similarly, all witnesses shall be instructed to

advise the court before giving testimony regarding a

specific sex abuse allegation so as to allow the court to

determine if the hearing should be closed.

3. There shall be no discussion, production or publica-

tion of documents, medical records, records of proceed-

ings, records of testimony, records of evidence, photo-

graphs, videotapes, recordings or images exceeding the

above-permitted disclosures.

/s/ Herbert B. Dixon, Jr.

HERBERT B. DIXON, JR.

Judge

(Signed in Chambers)

Copies to:

G. Allen Dale, Esquire

Richard L. Ducote, Esquire

307 G Street, N.W.

Washington, D.C. 20002

Counsel for Plaintiff

Linda P. Holman, Esquire

733 - 15th Street, N.W.

Suite 700

Washington, D.C. 20005

Guardian ad Litem

John C. Lenahan, Esquire

Lenahan & Volpe, P.C.

3975 University Drive

Suite 400

Fairfax, VA 22030

Counsel for Defendant

5la

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

FAMILY DIVISION

C.A. No. D-684-83

JEAN ELIZABETH MORGAN,

Plaintiff

Vv.

Eric A. FORETICH,

Defendant

[Filed Apr. 15, 1988]

MEMORANDUM OPINION AND ORDER

(Denying Access to Documents and Exhibits;

Granting Access to Clerk’s Record of Docket

Entries and Transcripts of Public Proceedings)

On October 29, 1986, the Washington Post filed a mo-

tion to intervene in this case for the limited purpose of

asserting its claimed First Amendment and common law

rights to attend the proceedings and secure access to

relevant pleadings and records. The motion was denied

by Memorandum Opinion and Order dated November

26, 1986. Subsequently, the Post filed a motion for re-

consideration of the denial. Said motion was orally de-

nied from the bench on December 2, 1986.’ This matter

is now before the court on a second motion by the Post

1 This court is informed that the Washington Post did not appeal

the denial of its motion. See Morgan v. Foretich, 528 A.2d 425,

426 n.1 [Morgan 11}.

i

52a

filed March 23, 1988, bearing a caption identical to its

1986 motion.

The Post argues that keeping the record under seal in

this case no longer serves the purpose of preventing the

public and the press from learning the details of the al-

legations that have been made in this case, and that

maintaining the seal serves to prevent the public from

understanding how the issues in this case have been ad-

dressed and resolved by the court. At least, argues the

Post, the record should be unsealed insofar as it pertains

to the contempt proceedings and the motion for recusal.

The plaintiff, Morgan, argues in support of the Posts

motion that the entire record, past and future, should be

unsealed. The defendant, Foretich, opposes any further

opening of these proceedings, to protect his and the child’s

privacy rights, beyond the balance which the court struck

by its order dated April 13, 1987, amending public dis-

closure restrictions. The guardian Opposes any further

unsealing of the record and urges this court to recognize

its obligation to protect the privacy of the child from the

publie airing of accusations by the parties which would

be damaging to the child, now and in the future.

At a hearing on its motion for reconsideration in De-

cember 1986, the Post declined the opportunity for un-

limited access to the record and proceedings conditioned

on its adherence to the public disclosure restrictions then

imposed on the parties and counsel. At hearing on the

instant motion in April 1988, the Post declined the same

opportunity notwithstanding the substantial lessening of

restrictions as a result of the court’s April 1987 order.

Essentially, the referenced order restricts public dis-

closure of specific sex abuse allegations in this proceed-

ing of documents, records or images concerning same.

The Post argues against any restriction. It asserts

that detailed testimony concerning the allegations of

sexual abuse made in this case were made in February

53a

1987 during a public civil trial involving the parties in

the United States District Court for the Eastern District

of Virginia. The public knows, argues the Post, that

Morgan has made allegations of sexual abuse against her

former husband, Foretich, and that her claims of sexual

abuse are the reasons for her refusal to comply with the

court’s visitation orders. The public has been prevented

from observing just how Morgan’s claims have been ad-

dressed by the court and opening the record in this case

would do a great deal to assure the public that justice is

being carried out. The Post takes the position that “[u]n-

sealing the record in this case would do little to harm the

minor child—the public has heard that she may have been

the victim of sexual abuse, and even if details were pub-

lished little additional harm [to the child] is likely to

result.” ?

This court does not accept the proposition that keeping

the record of these proceedings under seal no longer serves

a valid purpose in light of the public trial to which the

Post refers. The Post asserts that its reporters were

present for the entire public trial, have obtained a com-

plete transcript of same, and have exercised a responsible

degree of journalistic restraint in the details reported

thus far.*

2 Motion of the Washington Post Company to Intervene and for

Access, Exh. B, p. 15.

3 Notwithstanding the degree of restraint in reporting details

of allegations, articles in the February 18, 19 and 21, 1987, editions

of the Washington Post are illustrative. The February 18 article

summarizes certain arguments of counsel and testimony of wit-

nesses; the referenced article notes that one of the witnesses in that

proceeding “was not heard by Judge Herbert Dixon in the District

custody case,” and further proclaims that the Virginia trial “is

expected to provide the first public accounting from the two sides

on the allegations of sexual abuse.” See Page B7. The February 19

and 21 articles also summarize arguments and testimony in the

Virginia trial which, according to both articles, stems from a bitter

custody battle between Morgan and Foretich in D.C. Superior Court.

See Pages C6 and B8, respectively.

i |

54a

It does not require a mischievous mind to envision a

reporter, journalist or John Doe publicly disseminating a

comparison of the detailed allegations in both proceed-

ings—such would do nothing to enhance the public’s

understanding how the issues in this case have been ad-

dressed, but would be detrimental to the child’s privacy,

now and in the future. Indeed, this court has heard

testimony that the sensationalism surrounding the initial

publicity given this case resulted in a directive to the

faculty at the child’s preschool which dissuaded discus-

sions with the child about her life. Because of this,

normal roles one would expect of preschool teachers ap-

parently went unfulfilled, e.g., friend, counselor, substitute

parent.

The fact that this court is considering this motion by

the Washington Post which is essentially identical to its

motion denied sixteen (16) months earlier is not to sug-

gest there has been a diminution of the child’s privacy

rights; however, in light of the lessening of public dis-

closure restrictions by this court’s April 1987 order and

in view of Mokhiber v. Davis, No. 86-89, —— A.2d ——_

(D.C. Feb. 17, 1988), this court is constrained to re-

evaluate its decision to close certain proceedings and

maintain the record under seal.

Mokhiber involved the research efforts by an investi-

gative reporter which led him to seek access to sealed

records of certain civil litigation. The court held that Mr.

Mokhiber, as a member of the public, enjoys a common

law presumptive right of access to certain categories of

the sealed records‘ and is entitled to intervene to chal-

lenge the seals placed on the various records to which

he has a presumptive right of access.» In addition, the

court noted “that a civil contempt hearing in a child

custody case also presents special concerns that justify

* Mokhiber, slip op. at 16.

5 Mokhiber, slip op. at 27.

55a

closure to the public on a less stringent standard than

might usually apply to hearings in civil cases.” °

Mokhiber is instructive as to how this court should

exercise its discretion in these proceedings to evaluate the

claims for and against disclosure by the Post, Morgan,

Foretich, and the guardian.” The issues are:

1. Whether the prior reasons for sealing the record

are no longer valid,

2. Whether the present interest in maintaining the

seal is simply weaker than the public interest in

disclosure, and

3. Whether the April 1987 order amending public

disclosure restrictions requires the unsealing of

records not inconsistent with said order.

There appears to be no issue surrounding the validity

of this court’s previous sealing orders, at least through

August 1986. See Morgan I, 521 A.2d at 253; Morgan

II, 528 A.2d at 426-27. The Post argues that, whatever

the validity of the prior sealing orders, no purpose is

served by continued sealing of the record based on subse-

quent disclosures, generally, and specifically with respect

to testimony in open court by the parties and witnesses

in the Eastern District of Virginia. The public now

knows the details, so the argument goes, and continued

sealing only serves to prevent the public from under-

standing how the issues in this case have been addressed

and resolved by the court.

The argument that the public knows is not persuasive.

In the six sample pages of testimony from the federal

court trial submitted by the Post with its motion, the

court notes specific testimony which did not occur by a

6 Mokhiber, slip op. at 32, n.13 (citing Morgan v. Foretich, 521

A.2d 248 (D.C. Cir. 1987) [Morgan I!).

7 See Mokhiber, slip op. at 35.

56a

witness, party or both who testified in this proceeding.”

Notwithstanding the extent to which the Post may have

exercised journalistic restraint in its reporting of de-

tails in its possession, the unsealing of the records pre-

sents too much of an opportunity for mischief by those

less responsible, all to the detriment of the child, now and

in the future.

The Post argues that the present sealing only serves to

prevent the public from understanding how the issues in

this case have been addressed and resolved by the court.

The public interest in an issue of great and wide im-

portance may create a strong claim supporting access.°

Whatever the underlying issues herein, their significance

have become entangled with and indistinguishable from

the acrimony of the litigation and resulting court orders.

Therefore, it is not necessary for this court to determine

whether a claimed significant issue of public importance

is the underlying dispute or the judicial system’s conduct

of proceedings regarding same; because, as the Post con-

cedes, the public already knows the basic details, for

example:

1. Morgan alleges her former husband, Foretich,

has sexually abused their child.

2. Foretich denies the allegations.

Morgan is presently incarcerated for her refusal

to allow her former husband, Foretich, unsuper-

vised visitation with their minor child.

However, what the public does not know, supposedly, are

the detailed allegations made in this court as compared

®*The sample pages included testimony of Morgan and Dennis

Harrison, Ph.D. The court’s observation herein of a different

specific testimony is purposely written so as to avoid clarity whether

this observation of different specific testimony relates to Morgan or

Harrison, or both.

® See Mokhiber, slip op. at 36.

57a

to what has been revealed in the Virginia trial, and

numerous newspaper, magazine, radio and television re-

ports about both proceedings. Not only was there the

federal court trial in the Eastern District of Virginia

from which the public may currently gain information,

there are two published appellate decisions by the D.C.

Court of Appeals, a public habeas corpus petition and de-

cision in the U.S. District Court for the District of

Columbia, the appellate record and briefs in the U.S.

Court of Appeals for the Fourth Circuit, and emergency

petitions to the U.S. Supreme Court.” The argument

that continued sealing of the record of these proceedings

prevents the public from understanding how the issues

in this case have been addressed and resolved by the

court is not compelling. At most, all that has been

demonstrated is an extreme curiosity about the specific

allegations of abuse. Such curiosity, no matter how ex-

treme does not weigh heavily against the child’s rights of

privacy.

In April 1987 this court attempted to balance the pub-

lic interest in these proceedings and Morgan’s request for

total unsealing of same with the opposition by Foretich,

in his own behalf, and the guardian in behalf of the

child. The balancing, as it were, resulted in substantial

public proceedings from that time which were regularly

attended by at least one Post reported and other members

of the public at various times. As previously stated, the

extent to which these proceedings remain sealed is op-

posed by the Post and Morgan. Now, however, the court

is confronted with its own April 1987 order in determin-

ing whether transcripts, orders, pleadings, documents and

evidence should be unsealed so as not to contravene the

remaining restrictions.

1 There are also certain unresolved allegations that records of

these proceedings have been publicly disclosed outside of any ju-

dicial or administrative proceeding.

58a

This court concludes that unsealing of orders, plead-

ings, and evidence within current restrictions will not

satisfy the curiosity for the detailed allegations. As has

been recognized by this court, the allegations of abuse are

inextricably intertwined with every phase of these pro-

ceedings. The allegations can be damaging to the child

and the child’s reputation, now and in the future. To

allow the allegations to be published to the world and to

allow this court to serve as a public forum on the issue

of alleged abuse at the expense of compromising this in-

nocent child’s right to privacy and freedom from noto-

rious publie scrutiny is adverse to the best interests of

the child.”

The April 1987 lessening of disclosure restrictions in

this case has brought about a request for further lessen-

ing of restrictions. There does not appear to be an

acceptable middle ground which would satisfy everyone.

Moreover, redacted documents and exhibits would serve

no purpose other than to highlight the existence of re-

stricted information, and promote speculation about spe-

cific redactions. At this stage of the litigation, no purpose

would be served by unsealing the documents and exhibits,

even if redacted to conform with the disclosures per-

mitted by the court’s April 1987 order.

The disclosures thus far have already had damaging

effects upon the child. There is still the element of public

sensationalism concerning Morgan’s status as an incar-

cerated civil contemnor. The appeal of the federal jury

trial is pending. There are numerous appeals of this

court’s orders pending in the D.C. Court of Appeals. The

child’s whereabouts and present conditions are unknown.

A recent denial of Morgan’s federal habeas corpus peti-

tion may result in an appeal of that decision or a new

petition in this court. There are numerous issues under

1! See Memorandum Opinion and Order dated November 26, 1986,

at 4.

59a

advisement by this court concerning custody, visitation,

attorney’s fees, and possible criminal contempt. Perhaps,

upon the final resolution of some of these issues, the

public’s interest will exceed the recognized privacy inter-

ests—but not now. As the Supreme Court stated in

Nixon v. Warner Communications, Inc., 435 U.S. 589,

598 (1978):

Every Court has supervisory power over its own

records and files, and access has been denied where

court files might have become a vehicle for improper

purposes. For example, the common-law right of

inspection has bowed before the power of the court

to insure that its records are not ‘used to gratify

private spite or promote public scandal’ through the

publication of ‘the painful and sometimes digusting

details of a divorce case.’ In re Caswell, 18 R.I. 835,

836, 29 A. 259 (1893), Accord, e.g., C. v. C., 320,

A.2d 717, 723, 727 (Del. 1974).

The argument that this court should unseal the record

related to the recusal motion is not frivolous. The Post

argues that the public is entitled to know why recusal

was sought and why it was denied, and to determine

for itself whether the judge who sent Morgan to jail

should have recused himself. Since guarding against

potential abuse of judicial power is itself one of the bases

for the First Amendment right of access, argues the

Post, there are particularly strong reasons why the

recusal portion of the contempt proceeding should be

public.

Subsequent to this court’s findings in July 1986 which

formed the basis for a contempt judgment the following

month, Morgan has sought recusal on more than one

occasion. Each recusal request is based on this court’s

rulings, in-court comments, or events concerning the

child. To separate Morgan’s recusal requests from the

specific allegations about the child would render the re-

60a

quests meaningless or convey misinformation. Each re-

cusal request by Morgan bootstraps her desire to unseal

the record, in which effort the Post joins arguing the

public’s right to know. On one hand the Post argues

that the public already knows, and on the other, the Post

argues that the public does not know; however, for pur-

poses of this argument, the Post contends that the public

does not know and is entitled to access to the record to

judge for itself.

At present, there are other bases on which the public

ean judge for itself, including the published appellate

reviews of this court’s orders and rulings, the public

ruling on Morgan’s petition from habeas corpus, the Vir-

ginia federal court’s jury verdict on Morgan’s claims in

that proceeding, and numerous articles and broadcast

reports based on interviews of the parties, counsel and

witnesses. Contrary to the Post’s position, this court

concludes that unsealing documents and exhibits at the

present time would be harmful to the child if the specific

allegations are not redacted; and if the specific allega-

tions concerning the child are redacted, no appreciable

increase in public understanding is likely to result.

As argument proceeded on the instant motion, it ap-

peared that it would have been helpful to the Post and

the court if the request for unsealing could have been

particularized to a specific pleading, order or hearing

date. The court file in this case is the most voluminous

file known for a District of Columbia domestic relations

proceeding. The clerk’s record of docket entries would

likely provide the Post and the public with an historical

context for the ongoing litigation which is otherwise un-

available. Such would be helpful to the Post and the

public in gaining an understanding of the numerous

complex issues before the court since the inception of

this case. The clerk’s record of docket entries would

also provide a basis for particularizing future requests,

if any, that a specific document or exhibit be considered

ee

6la

for unsealing. Accordingly, the clerk’s record of docket

entries from the inception of this case through the entry

of this order on said docket shall be opened for public

inspection. Future docket entries shall be under seal

until further order of the court.

The ruling today is not taken lightly. This court rec-

ognizes that this ruling most likely stretches to its maxi-

mum limit the permissible discretion of the court. The

issues raised by the Post are not frivolous. Intense ap-

pellate scrutiny should result. Absent the ruling of this

court, the detailed allegations about the child made in

these proceedings would be public for whatever use a

member of the public determines. The possible damag-

ing effects upon the child are not speculative. This court

does not subscribe to the academic conclusion of the Post

that little additional harm to the child would result from

total unsealing of the record.

Lastly, because there have been proceedings conducted

in epen court with members of the public and press pre-

sent at various times, the court will unseal the tran-

scripts of those proceedings, with the possible exception

of bench conferences and, in this regard, has undertaken

a process to identify same.

THEREFORE, it is by the court this 15th day of

April, 1988

ORDERED, that the Washington Post’s motion to in-

tervene and for access as it relates to the clerk’s record

of docket entries for this case from inception to entry of

this order shall be and the same is hereby GRANTED;

future docket entries shall be sealed until further order

of the court, and it is further

ORDERED, that the said motion as it relates to tran-

scripts of proceedings conducted herein which were open

to the public shall be and the same is hereby GRANTED,

and it is further

62a

ORDERED, that the said motion as it relates to docu-

ments and exhibits shall be and is hereby DENIED.

/s/ Herbert B. Dixon, Jr.

HERBERT B. DIXON, JR.

Judge

(Signed in Chambers)

Copies to:

G. Allen Dale, Esquire

307 “G” Street, N.W.

Washington, D.C. 20001

Linda P. Holman, Esquire

Speights & Michael

2000 “L” Street, N.W.

Suite 810

Washington, D.C. 20036

Kevin T. Baine, Esquire

Nicole K. Seligman, Esquire

839 Seventeenth Street, N.W.

Washington, D.C. 20006

John C. Lenahan, Esquire

Lenahan & Volpe, P.C.

3975 University Drive

Suite 400

Fairfax, VA 22030

Juanita A. Crowley, Esquire

Wilmer, Cutler & Pickering

2445 “M” Street, N.W.

Washington, D.C. 20037-1420

63a

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

FAMILY DIVISION

C.A. No. D-684-83

JEAN ELIZABETH MORGAN,

Plaintiff

V.

Eric A. FORETICH,

Defendant

ORDER

(Inviting Responses of Counsel on Pending Motions

for Contempt)

By order dated July 7, 1987, this court referred var-

ious motions for contempt! to the United States Attorney

for the District of Columbia for a determination of his

interest, if any, in the prosecution of plaintiff Jean Eliza-

beth Morgan, plaintiff’s attorney, Richard L. Ducote,

Esquire, and defendant Eric A. Foretich for alleged vio-

10n August 11, 1986, the defendant Eric A. Foretich, by and

through his attorriey, John C. Lenahan, Esquire, moved this court

to cite the plaintiff and her attorney, Richard L. Ducote, Esquire,

for contempt for violations of the court’s order sealing these pro-

ceedings and prohibiting the parties from disclosing information

under seal. On March 2, 1987, the plaintiff Jean E. Morgan, by and

through her attorney, G. Allen Dale, Esquire, likewise moved this

court to cite the defendant for contempt for similar violations.

The court subsequently scheduled a hearing date of April 28, 1987;

however, said hearing was vacated upon the court’s decision to

formally refer the matters to the United States Attorney for his

initial consideration.

64a

lations of the court’s closure and sealing orders. The

United States Attorney referred the matter to the Gen-

eral Litigation and Legal Advice Section of the Criminal

Division of the Department of Justice. A written re-

sponse was received from the Department of Justice on

September 23, 1988, a copy of which is attached to this

order. In essence, the Department of Justice has deter-

mined to-decline prosecution and to conduct no further

inquiry into the referral for lack of prosecutive merit

unless further action is requested by the court.

Before further action is taken on the referenced mo-

tions, counsel for the individuals against whom the mo-

tions are directed are invited to advise the court by

memorandum of their position concerning further pro-

ceedings on said motions. It would be helpful for this

court te be advised if any party desires to pursue said

motions, urges that said motions be dismissed or that the

court exercise its inherent authority independent of the

Department of Justice’s decision, or proposes any other

disposition of the referenced motions.

Counsel are requested to submit their memorandum in

response to this order on or before November 4, 1988.

DATED this 19 day of October, 1988.

/s/ Herbert B. Dixon, Jr.

HERBERT B. DIXON, JR.

Judge

(Signed in Chambers)

Copies to:

Juanita A. Crowley, Esquire

Wilmer, Cutler & Pickering

2445 M Street, N.W.

Washington, D.C. 20037

John P. Lenahan, Esquire

Lenahan & Volpe

3975 University Drive

Suite 400

Fairfax, VA 22030

G. Allen Dale, Esquire

Dale and Lobo

307 G Street, N.W.

Washington, D.C. 20001

Linda P. Holman, Esquire

Speights & Michael

2000 L Street, N.W.

Suite 810

Washington, D.C. 20036

66a

U.S. DEPARTMENT OF JUSTICE

[SEAL]

Washington, D.C. 20530

[Sep. 20, 1988]

The Honorable Herbert B. Dixon, Jr.

Superior Court of the District of Columbia

Washington, D.C. 20001-2131

Re: Morgan v. Foretich

(Superior Court Case No. D-684-83)

Dear Judge Dixon:

In August 1986, this custody case resulted in a finding

of contempt against the plaintiff-mother, Dr. Elizabeth

Morgan, for her refusal to eomply with court-ordered

visitation of the minor by the defendant-father, Foretich.

Statements made to the media after that contempt hear-

ing by both parties and the plaintiff’s attorney were

viewed as contumacious by the opposing sides. You re-

quested a review of the merits of prosecuting these cross-

complaints from the United States Attorney for the Dis-

trict of Columbia. The matter was received by the Gen-

eral Litigation and Legal Advice Section of the Criminal

Division of the Department of Justice in March of this

year.

Subsequently, we requested pertinent transcripts and

orders from your Court. The record as provided has

been reviewed to determine whether criminal contempt

charges should be commenced against any of the individ-

uals involved for violation of the court order sealing the

case.

This Section has decided to decline prosecution, having

determined, as more fully set forth below, that there ex-

ists reasonable doubt that criminal contempt has been

committed. In responding to your referral, however, we

67a

are cognizant of this Court’s inherent right to vindicate

any violation of its orders independent of the Depart-

ment of Justice’s opinion. See Young v. United States

ex rel. Vuitton et Fils, 107 S.Ct. 2124, 2131, 2133 (1987).

I. Summary of Facts

Subsequent to the dissolution of the marriage of Dr.

Jean Elizabeth Morgan and Dr. Eric A. Foretich, a

heated custody battle has continued. Dr. Morgan, in her

fight to prevent visitation, alleged the minor child was

the victim of sexual misconduct. Prior to August 5, 1986,

this court ordered that Dr. Morgan allow visitation of

the child by Dr. Foretich. When she refused. a contempt

hearing was scheduled.

D.C. Code § 11-1101(4) gives exclusive jurisdiction to

the Family Division of the Superior Court over “actions

seeking custody of minor children . . .” as well as other

matters that were before the court at the time of the

alleged contempt. On several occasions since the begin-

ning of the proceedings in this case, written orders clos-

ing the proceedings and the record were issued pursuant

to D.C. Code § 16-2344, which provides in pertinent part:

Upon trial of proceedings over which the Family

Division of the Superior Court has jurisdiction un-

der paragraph (3), (4), (10) or (11) of Section

11-1101, the Court may exclude the general public

and, at the request of either party, shall exclude the

general public.

On November 8, 1984, Dr. Foretich’s Motion for Pro-

tective Order, Exclusion of the Press and Public from the

Trial and Order Proceedings and the Motion to Seal the

Entire Record were granted. Subsequent orders by the

court continued to close the proceedings and the record

without objection or question until the August 5, 1986

hearing.

68a

On August 5, 1986, at the hearing on contempt, Judge

Dixon ordered the court cleared and reminded counsel

and the parties that the proceedings were being conducted

under seal of the court and counsel and parties were un-

der order not to discuss these proceedings on the outside.

(Tr. 43)

Mr. Witt, one of Dr. Morgan’s attorneys, stated that

he was unaware of any order that counsel and parties

not communicate with others with respect to these pro-

ceedings. The only order in effect, he argued, was the

statutorily allowed sealing of the court record. (Tr. 44)

He also argued the contempt hearing needed to be an

open hearing to meet constitutional requirements of due

process under the Fifth Amendment.

In response to Attorney Witt’s statement that no order

existed preventing the parties or their counsel from com-

municating with others with respect to these proceedings,

the court replied:

THE COURT: I will let you exercise your dis-

cretion to the extent you feel the Court order allows,

Mr. Witt. I know what orders have been signed

and so do you.

The following discussion on the record then transpired:

MR. WITT: I want the Court to be clear I’m not

requesting permission of the Court to talk to any-

body. I thought the record should be clear in terms

of what the court orders have been. I take seriously

what the Court says, as well as what the Court

writes. The Court just made a statement. I know

today I received from Mr. Lenahan at four o'clock a

motion which asked the Court to direct the people

not to talk to other people. I had not seen that mo-

tion before four o’clock. I have not been aware of

any such request. I have not had an opportunity

69a

to answer it. I don’t think the Court should be act-

ing on granting such a motion.

THE COURT: I’m not.

MR. WITT: I take it then—I take it then that

the Court’s statement was intended to add nothing

to what the written orders of this Court already

provides.

THE COURT: That’s correct.

Do you believe, Mr. Witt, since we_are in this

discussion, that the previous orders of the Court al-

low interviews with radio and television stations and

newspapers about the proceedings that have been

conducted?

MR. WITT: I do believe, Your Honor—I am not

aware of any order of this Court which prohibits

that.

MR. DUCOTE [Dr. Morgan’s other attorney]:

For example, Your Honor—

THE COURT: —That matter is not before the

Court. At the moment I just thought that I would

mention it because the matters were closed in the

best interest of Hillary [sic] and—and an order that

was consented to by all parties. Now, to have de-

tails about Hillary [sic] splattered in newspapers,

on television and radio, another question might come

up before me, and I bring it up as a topic of interest

at this time.

MR. DUCOTE: So it is the Court’s position the

fact that Dr. Morgan has been jailed in response to

the Court’s order is something that is a matter

which the Court is directing to be held confidential?

THE COURT: The written orders as they ex-

ist stand. Now, if I start reading about Hillary

[sic] in the newspapers or hearing about her on

television or radio, there is no doubt in my mind that

that contravenes what those Court orders were in-

tended to accomplish.

70a

MR. LENAHAN [Dr. Foretich’s attorney]: That

is—That is the position of the defendant, Your

Honor.

If I may just briefly respond to that particular

point?

THE COURT: There is really nothing before

me. I thought I would just let counsel know.—(Tr.

44-46) (emphasis added)

Dr. Foretich’s attorney then related evidence of leaks

to the press and requested that the court state for the

record its views as to the matter of sealing the record

and exclusion of the press. Dr. Morgan’s attorney re-

sponded as follows:

MR. WITT: I think Mr. Lenahan is a hundred

percent wrong in what he suggest [sic] about what

this Court’s order has done in the past or what they

could be in the future. At this time, unfortunately,

this matter is before the Court of Appeals,’ not this

Court, and I suggest that anything further would

be inappropriate and beyond the jurisdiction of this

Court.

THE COURT: Let me put it this way, I don’t

intend to give any rulings right now. I have already

had to make several difficult rulings in this case,

and if more difficult rulings come up in the future,

I will make them, and the parties will just have to

live with those rulings. I will not shy away from it

just because it is difficult. I will call it as I see it

and parties will just have to live with it. (Tr. 50)

Following this hearing plaintiff’s counsel, Ducote, made

statements to the press and provided documents that were

being filed in the appeal. Plaintiff Morgan also made

statements regarding the case to the media. On August

12, 1986 the defendant Foretich allegedly also made

statements to the press.

1 Dr. Elizabeth Morgan, before this point in the hearing, had

filed a Notice of Appeal of the contempt finding with the court.

7la

On August 15, 1986, Dr. Foretich moved this Court

for a finding of contempt against plaintiff, his former

wife Dr. Morgan, and her attorney, Richard Ducote. He

alleged that on August 5th and 6th the plaintiff and her

attorney granted interviews with the press and that on

August 7th copies of plaintiff's motion to stay the con-

tempt order were distributed to the press.

Disclosures by Dr. Morgan and her attorney Ducote

included interviews with the press about the contempt

charge against Dr. Morgan and her incarceration. In

addition, the motion to stay the contempt order that was

filed in the Court of Appeals was distributed to the press

by Ducote. Attachments to this motion included portions

of the record that had been the subject of the order to

seal. Ducote claimed that until the appellate court sealed

the record, his disclosure could not be in violation of any

order since any member of the press could have seen what

had been filed in the clerk’s office of the Court of Ap-

peals. (Richard Lynn Ducote Deposition November 25,

1986).

On March 2, 1987 Dr. Morgan and different counsel

moved for a finding of contempt against Dr. Foretich for

statements he made to the Washington Post on August

12, 1986.

The scheduled contempt hearing on these cross motions

was vacated by the court and a formal referral to the

United States Attorney was issued. After the recusal of

the United States Attorney’s office the matter was re-

ferred to the Department of Justice and, ultimately, to

the General Litigation and Legal Advice Section in March

of 1988.

Il. The Law

The most applicable contempt provision made applicable

by D.C. Code § 11-944 is codified at 18 U.S.C. § 401(3).

That provision provides:

72a

A court of the United States shall have power to

punish by fine or imprisonment, at its discretion,

such contempt of its authority, and none other, as

(3) Disobedience or resistance to its lawful writ,

process, order, rule, decree, or command.

The prohibition of section 401(3) is quite clear: a

party violates the provision if he disobeys an order of

the court. See Green v. United States, 356 U.S. 165, 170

(1958); NLRB v. Deena Artware, 261 F.2d 503, 508

(6th Cir. 1958), rev’d on other grounds, 361 U.S. 398

(1960). To establish a violation of section 401(3), the

following three elements must be shown: (1) a clear and

definite court order; (2) knowledge of the order by the

defendant; and (3) actions taken by the defendant with

a willful, contumacious, or reckless state of mind. Jn Re

Farquhar, 492 F.2d 561, 564 (D.C. Cir. 1973). An order

that restrains conduct must give the affected parties “fair

warning” of what is prohibited. United States v. Christie

Industries, Inc. 465 F.2d 1002, 1006 (3d Cir. 1972).

Whether this fair warning is provided is based on more

than the language of the order and includes: the cir-

cumstances surrounding the entry of the order; the relief

that the moving party sought; the evidence that the

parties produced at the hearing; the harm that the order

seeks to prevent; and the manner in which the order seeks

to protect these interests. United States v. Greyhound

Corp., 508 F.2d 529, 532 (7th Cir. 1974); United States

v. Christie Industries, Inc., 465 F.2d at 1007.

In evaluating whether an order gives clear notice of

what was prohibited, courts will also consider the posi-

tion, experience and knowledge of the parties. These

principles apply with equal or even greater force when

th accused contemnor is an attorney. For example, in

Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193 (9th

Cir. 1974), the attorney refused to comply with an order

because she thought it was confusing and unconstitu-

73a

tional. The court rejected this argument because the

evidence indicated that any confusion that the attorney

experienced was “self-induced” and “self-perpetuated.”

Id. at 195.

To be convicted of criminal contempt under section

401(3), the order must be entered upon the records of

the court and the defendant must have knowledge and

notice of the order. United States v. Rylander, 714 F.2d

996, 1003 (9th Cir. 1983) cert. denied, 467 U.S. 1209

(1984); United States v. Thoreen, 653 F.2d 1332, 1339

(9th Cir. 1981), cert. denied, 455 U.S. 988 (1982). It

is not necessary that the party be served with a copy

of the order. Indeed, formal notice or personal service is

immaterial to whether the party has actual knowledge

of the order. United States v. Rylander. Ibid.

If the evidence shows that the defendant’s actions were

taken in good faith and were based on a plausible but

mistaken interpretation of the order, he lacks the requi-

site willfulness to support a contempt conviction. United

States v. Greyhound Corp., 508 F.2d at 532; In Re Brown,

454 F.2d 999 at 1007 (D.C. Cir. 1971). Similarly, a de-

fendant does not have the requisite intent if the evidence

establishes that he did not understand the order or if it

was not apparent that the order applied to him. See In

Re Joyce, 506 F.2d at 373, (5th Cir. 1975) 377.

However, a defendant cannot defeat a finding of intent

by advancing an implausible interpretation of an order.

Although a defendant is not required to seek clarification

from the court of an allegedly ambiguous order, “a failure

to do so when combined with actions based upon a

twisted or implausible interpretation of the order will

be strong evidence of a willful violation of the decree.”

United States v. Greyhound Corp., 508 F.2d at 5382.

A party has committed a criminal contempt when he

knows that the conduct is wrongful but he intentionally

commits the act despite this knowledge. In Re Brown,

74a -

454 F.2d at 1007. “‘The minimum requisite intent [for

criminal contempt] is . . . defined as a volitional act done

by one who knows or should reasonably be aware that

his conduct is wrongful.’” United States v. Greyhound

Corp., 508 F.2d at 531-32. The “willfulness” required

under the provision has been defined as “‘ a deliberate

or intended violation, as distinguished from an acci-

dental, inadvertent or negligent violation.’” Vaughn v.

City of Flint, 752 F.2d 1160, 1169 (6th Cir. 1985).

Willfulness may be inferred from the facts and circum-

stances of the proof. United States v. Greyhound Corp.,

508 F.2d at 532, 540. Actions taken prior to the entry

of the order although not subject to the contempt power,

may be probative of intent and willfulness. See NLRB v.

Deena Artware, 261 F.2d at 509.

The contemnor may attempt to also defend a charge

by arguing that he did not obey the order because he

thought that it was invalid or contrary to law, but the

cases are clear that it is no defense to criminal contempt

for a party, especially a lawyer, to argue that he took his

actions because he believed that the order was invalid or

contrary to law. Walker v. City of Birmingham, 388 U.S.

307, 313-21 (1967). Nevertheless, a jury may find this

argument appealing.

A party is liable for all actions taken in contravention

of an “ ‘outstanding and unreversed’” order. Smother-

man v. United States, 186 F.2d 676, 678 (10th Cir.

1950). As the Tenth Circuit explained when addressing

the defendant’s violation of a restraining order:

Appellants had no right to determine for themselves

whether the court had jurisdiction to restrain their

acts. That was a matter-for the court to decide

. . . « Until [the restraining order] was set aside

by orderly judicial process they were bound at their

peril to heed its mandate.

75a

If a party believes that the order is invalid, his remedy

is not to disobey the order but to litigate the issue by

appeal. Walker v. City of Birmingham, 388 U.S. at 317;

United States v. Stine, 646 F.2d 839, 845 (3d Cir. 1981) ;

United States v. Christie Industries, Inc., 465 F.2d at

1012. However, even if the contemnor is correct on ap-

peal that the order was contrary to law, such a finding

will not negate the criminal contempt. Pabst Brewing

Co. v. Brewery Workers Local Union No. 77, 555 F.2d

146, 150 (7th Cir. 1977). The justification for this result

“stems from the system’s need for compliance with its

mandates.” United States v. Stine, 646 F.2d at 846.

III. Discussion

There is insufficient evidence to prove beyond a reason-

able doubt that the subjects willfully violated an order

when they made disclosures to the media. The record re-

flects that all the parties were aware of the order seal-

ing the file and excluding the public from the proceedings.

In fact, both sides had agreed to that order. However,

the order was, we believe, ambiguous as to prohibited

types of disclosures, and applicability to the contempt pro-

ceeding, thereby reducing the prosecutive merit of the

allegations of contempt.

It is not clear from the transcripts of hearings both

before and after the alleged disclosures whether the order

restricted discussions of the contempt case with the pub-

lic. The scope of the restrictions were not defined for

Dr. Morgan and her attorney at the August hearing

despite counsel’s statements that he did not understand

the sealing orders as applicable. Similarly, the ambiguity

of the order can be seen a few months later at the hearing

on a Washington Post motion to be present at future

court proceedings.

At that hearing the Post’s right to remain during the

hearings was denied. This Court discussed the November

8, 1984 order that initially sealed the court file:

EE eVoOOoO

76a

The fact that disclosures may have occurred in

other forms in other matters in and of themselves

would not be a sufficient basis to break the seal and

to open these proceedings to the public. Jn fact, those

disclosures, if they occurred in certain ways, may or

may not be violations of the Court order. (emphasis

added )

(October 29, 1986 Tr. 10)

When asked by the Post whether the order prohibited

the parties and their lawyers to the proceedings from

discussing the case with a reporter or members of the

public the court refused to provide any interpretation of

that order noting that the matter may be under litiga-

tion at that time. (October 29, 1986 Tr. 14)

Finally, the court in response to Dr. Morgan’s attor-

ney Dale’s request for clarification of the scope of the

order stated:

THE COURT: Well, Mr. Dale, we will deal with

the issue but not right now. If you wanted a re-

sponse on that, you could have given me some time

in which to give your response. We have a motion

for contempt pending which will also address some

of those issues and if there was any confusion about

what could be done or what could not be done, that

was one time to also get it straightened out.

MR. DUCOTE ([Dr. Morgan’s other attorney]: I

asked at that time, Your Honor—

THE COURT: You’re not going to cite what I

say right now as precedent for what may or may

not have happened at some time in the past. If any-

one wanted guidance, we would have accomplished

that.

(October 29, 1986 Tr. 17)

As the transcripts disclose, the order sealing the rec-

ord and excluding the public from the courtroom was not

77a

sufficiently clear to make a successful contempt prosecu-

tion possible against Dr. Morgan and her attorney, Mr.

Ducote, for statements they made to the press. In addi-

tion, Dr. Morgan can argue she was acting in good faith

reliance on Ducote’s advice when she made public dis-

closures. Ducote admitted in a deposition that he had

advised Dr. Morgan that she had a First Amendment

right to speak about the case.

Ducote did distinguish these disclosures from the dis-

semination of the files. The Morgan Application to Stay

with the attachments consisting of sealed records was

distributed to the press only after the application was

filed with the court of appeals and before the appellate

record was sealed, approximately one-half hour to fifty-

five minutes later. Ducote stated in the deposition that

the distribution coincided with the time that any member

of the press could have seen this pleading in the Clerk’s

office of the Court of Appeals. .

Dr. Foretich stands accused by Dr. Morgan of giving

interviews with the press, which were in response to the

publicity generated by Dr. Morgan and Attorney Du-

cote’s earlier disclosures to the media. Dr. Foretich made

these statements to the press before he accused Dr. Mor-

gan and Attorney Ducote of contempt.

Dr. Foretich cannot rely on a good faith defense as his

attorney appears in the August 5 record to interpret

the order as prohibiting public disclosure. Nevertheless,

Dr. Foretich’s remarks denying the accusations of sexual

misconduct are more excusable since they were made in

self defense.

The actions of the parties here are probative in eval-

uating whether they were engaged in a willful disregard

of this court’s order. For example, on August 5, 1986, a

clarification of the order was sought by Dr. Morgan and

her attorneys. The order excluding the press from the

courtroom was appealed immediately. When an order

aa

78a

was issued by this court in November 1986 specifically

restricting the scope of discussions by the parties and

counsel with the general public, this court noted that sub-

stantial compliance was obtained. (Findings of Fact,

February 12, 1987).

Finally, since the disclosures in August of 1986, there

has been substantial disclosure of the same information

in a separate civil law suit between the two parents that

was tried in the Eastern District of Virginia. The addi-

tional publicity that would be generated by a prosecu-

tion of the parties at this time would only exacerbate the

unfortunate situation of the child whom the sealing order

was designed to protect.

For the foregoing reasons, the Criminal Division has

determined to decline prosecution and to conduct no fur-

ther inquiry into this referral for lack of prosecutive

merit unless further action is requested by this court.

Sincerely,

EDWARD §.G. DENNIS, JR.

Acting Asistant Attorney General

Criminal Division

By: /s/ Lawrence Lippe

LAWRENCE LIPPE, Chief

General Litigation and

Legal Advice Section

|

79a

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

Nos. 87-2549, 87-2550, 87-2558 and 87-2559

ELIZABETH MorGAN, M.D.,

Plaintiff-A ppellant,

ff

Eric A. FORETICH; VINCENT FORETICH; DORIS FORETICH,

Defendants-A ppellees.

HILARY FORETICH, an Infant who sues through her

mother and next friend, ELIZABETH MorGAN, M.D.,

Plaintiff-Appellant,

v.

Eric A. FORETICH; VINCENT FORETICH; DORIS FORETICH,

Defendants-A ppellees.

ELIZABETH MORGAN, M.D.,

Plaintiff-A ppellee,

v.

\

Eric A. FORETICH; VINCENT FORETICH; DORIS FORETICH,

Defendants-A ppellants.

HILARY FORETICH, an Infant who sues through her

mother and next friend, ELIZABETH MORGAN, M.D..,

Plaintiff-Appellee,

v.

Eric A. FORETICH; VINCENT FORETICH; DORIS FORETICH,

Defendants-A ppellants.

Argued Jan. 6, 1988

Decided May 17, 1988

“ai

80a

Rehearing and Rehearing In Bane

Denied July 21, 1988

Before POWELL, Associate Justice (Retired), United

States Supreme Court, sitting by designation, and RUS-

SELL and ERVIN, Circuit Judges.

DONALD RUSSELL, Circuit Judge.

The plaintiffs, Dr. Elizabeth Morgan and her minor

daughter Hilary Foretich, brought this action against the

defendants, Dr. Eric Foretich and his parents, for dam-

ages arising out of the defendants’ alleged sexual abuse

of Hilary. Dr. Foretich counter-claimed for defamation

and other damages caused by this lawsuit. The jury

found for Dr. Foretich on Dr. Morgan’s claims and for

Dr. Morgan on Dr. Foretich’s counter-claims. Plaintiffs

appealed, defendants cross-appealed, and the appeals

were consolidated for oral argument. Jurisdiction is

based on diversity of citizenship.

The determinative issue in this appeal is whether the

district court erred in excluding evidence that Hilary’s

sister had been sexually abused and in excluding all out-

of-court statements made by the plaintiff, Hilary Fore-

tich. We conclude that the district court abused its dis-

cretion by excluding this evidence and we reverse and

remand that portion of its judgment. However, the dis-

trict court committed no error with regard to defendants’

counter-claims and we affirm that part of its judgment.

a

Hilary Foretich was born in August 1982, the daugh-

ter of Dr. Eric Foretich and his third wife from whom

he is now divorced, Dr. Elizabeth Morgan. Heather Fore-

tich is three years older than Hilary and is the minor

daughter of Dr. Foretich and his second wife. Dr. Fore-

tich was awarded visitation rights with both children

and the girls-have frequently visited the Foretich home

simultaneously.

8la

In the summer of 1983, Dr. Morgan received a call

from Heather’s mother who expressed concern that the

girls were possibly being abused during visitation periods

with Dr. Foretich and his parents. Dr. Morgan became

further alarmed when signs of physical abuse became

apparent on Hilary and later when Hilary displayed an

age-inappropriate understanding of sexual matters and

began to make sexually explicit statements. After con-

sulting specialists in the field of child sexual abuse, Dr.

Morgan became convinced that Hilary was being abused

during the visitation periods with Dr. Foretich and his

parents. This action followed.

At trial, plaintiffs attempted to introduce out-of-court

evidence showing that Hilary’s sister, Heather, displayed

similar signs of sexual abuse. Plaintiffs also sought to

introduce statements made by Hilary to her mother and

to a child psychologist. The district court excluded all

evidence of this nature.

Plaintiffs contend that the district court committed

reversible error in its evidentiary rulings. First, plain-

tiffs assert that evidence of Heather’s abuse should have

been admitted to show the identity of the perpetrator and

to rebut claims that Hilary’s injuries were accidental or

self-inflicted. Second, plaintiffs argue that statements

made by Hilary to her mother after Hilary returned from

visitation with Dr. Foretich were admissible as excited

utterances. Finally, plaintiffs contend that statements

made by Hilary to her psychologist were admissible as

statements made for purposes of medical diagnosis or

treatment.

Defendants respond by arguing evidence of sexual

abuse suffered by Heather Foretich was properly ex-

cluded because of its potential for prejudicing the jury.

Defendants further assert that all out-of-court statements

made by Hilary Foretich were properly excluded because

of hearsay considerations and because Hilary’s age made

her incompetent to testify as a witness.

82a

II.

General

Reported cases of child abuse in this country have

increased dramatically in recent years. An estimated one

in five females suffers from sexual abuse as a child.’

Figures from 1976 to 1983 reflect an 852% increase in

the number of child sexual abuse cases reported. How-

ever, in two-thirds of child abuse cases, the incident is

never even reported.* Even when the incident is reported,

prosecution is difficult and convictions are few.

Much of this difficulty stems from the fact that meth-

ods of proof in child abuse cases are severely lacking.

Often, the child is the only witness. Yet age may make

the child incompetent to testify in court, and fear, es-

pecially when the perpetrator is a family member, may

make the child unwilling or unable to testify.

Courts and legislatures alike have struggled with this

deeply troubling problem. The courts have often been

criticized for expanding existing hearsay exceptions be

yond recognition* while several state legislatures have

1D—. Finkelhor, Sexually Victimized Children 53 (1979), cited in

Note, The Testimony of Child Victims in Sex Abuse Prosecutions:

Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985).

2 Comment, Legislative Responses to Child Sexual Abuse Cases:

The Hearsay Exception and the Videotape Deposition, 34 Cath.U.L.

Rev. 1021, n. 1 (1985).

3 Note, supra, note 1, at 806, n. 7.

4 See, c.g., Skoler, New Hearsay Exceptions for a Child’s State-

ment of Serual Abuse, 18 J. Marshall L.Rv. 1 (1984); Comment,

The Sexually Abused Infant Hearsay Exception: A Constitutional

Analysis, 8 J.Juv.L. 59 (1984); Note, A Comprehensive Approach

to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev.

1745 (1983).

83a

undertaken to create altogether new hearsay exceptions

for the victims of child abuse.

In the form of a civil suit, the instant case squarely

presents this Court with many of these difficult issues.

In rendering this judgment, we are mindful of the

common-sense admonition that “[w]hen the choice is be-

tween evidence which is less than best and no evidence at

all, only clear folly would dictate an across-the-board

policy of doing without.” Fed.R.Evid. art. VIII advisory

committee’s note.

ITI.

Evidence of Abuse Suffered by Hilary’s Sister,

Heather Foretich

At trial, plaintiffs sought to introduce testimony by

Dr. Charles Shubin, a pediatrician who was qualified as

an expert in the field of child sexual abuse. Dr. Shubin

had examined both Hilary and Heather Foretich and was

prepared to testify that both girls had suffered sexual

injuries and that the mechanism of injury was essen-

tially the same in both cases. Plaintiffs also had nu-

merous other professionals and lay witnesses who were

prepared to testify that Heather had been sexually

abused during visitation periods with the defendants.

The district court excluded all evidence of sexual abuse

suffered by Heather Foretich concluding that such evi-

dence was prejudicial and could not be allowed without

a full scale trial on the allegations made by Heather. We

disagree.

As a preliminary matter, the district court erred in

concluding that a full seale trial would be required into

allegations made by Heather Foretich. This Court has

held that in applying Rule 404(b) of the Federal Rules

of Evidence, evidence of other crimes need not be estab-

5 E.g., Wash.Rev.Code Ann. § 9A.44.120 (Supp. 1982); Kan.Stat.

Ann. § 60-460(dd) (Supp. 1982).

84a

lished by the “clear and convincing evidence” standard

which some other courts have seen fit to apply.® Instead,

“we have not imposed any ‘clear and convincing evidence’

standard in our application of Rule 404(b)” and “we de-

cline to adopt such a requirement.” United States v.

Martin, 773 F.2d 579, 582 (4th Cir.1985). Rather, evi-

dence of other crimes or acts will be admissible even

absent clear and convincing proof of those other crimes

or acts if the proffered evidence can meet the threshold

requirements of Rule 404(b).

Rule 404(b) of the Federal Rules of Evidence pro-

vides that

Evidence of other crimes, wrongs, or acts is not ad-

missible to prove the character of a person in order

to show action in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident.

This Court has held Rule 404(b) to be an “inclusion-

ary rule’ which “ ‘admits all evidence of other crimes

[or acts] relevant to an issue in a trial except that which

tends to prove only criminal disposition.’” United States

v. Masters, 622 F.2d 83, 85 (4th Cir.1980) (emphasis

added) (quoting J. Weinstein & M. Berger, Weinstein’s

Evidence § 404[08] at 404-41 and 404-42 (1979) ).

The threshold requirements for admitting evidence

under Rule 404(b) were recently stated by this Court in

United States v. Lewis, 780 F.2d 1140 (4th Cir.1986).

In Lewis, we stated the determinative questions to be

(a) whether the proffered evidence is relevant to an issue

other than the defendant’s character, and (b) whether

8 See United States v. Wormick, 709 F.2d 454 (7th Cir. 1983);

United States v. Leisure, 807 F.2d 143 (8th Cir. 1986). But see,

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. de-

nied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).

85a

the probative value is substantially outweighed by its

prejudicial effect. Jd. at 1142.

The proffered evidence of sexual abuse suffered by

Heather is admissible under the standard set forth in

Lewis. First, the evidence was not offered to show the

depravity of the defendants’ character. Rather, this evi-

dence was highly relevant to disputed issues in this case.

Fundamentally, this evidence was essential in that it

tended to identify the defendants as the perpetrators of

the crime against Hilary since only the defendants had

access to both girls. No other piece of evidence could

have had a comparable probative impact as to the iden-

tity of Hilary’s assailants. This evidence also negated

several defenses raised by the defendants: Hilary’s in-

juries were caused by Dr. Morgan; were fabricated by

Dr. Morgan; or were caused by self-infliction. It has

been suggested by some that, in child abuse cases, the

inquiry should end here: “When prior acts were ad-

mitted to prove disputed issues in the case, such as the

identity of the defendant, the absence of mistake or acci-

dent, or the defendant’s intent, no violation of the other

crimes evidence rule exists.” Comment, Other Crimes

Evidence to Prove the ‘Corpus Delicti’ of a Child Sexual

Offense, 40 U. Miami L.Rev. 217, 220 (1985).

However, after determining that other acts are rele-

vant to an issue besides character, the question then be-

comes whether the probative value of the evidence is sub-

stantially outweighed by its prejudicial effect. This ques-

tion has previously been addressed by this Court in the

analogous case of United States v. Woods, 484 F.2d 127

(4th Cir.1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566,

39 L.Ed.2d 875 (1974). In Woods, a case allowing crim-

inal prosecution for the suffocation death of a young

child, we allowed the government to introduce evidence of

abuse suffered by other children whom the defendant had

access to even though the defendant was not accused of

abusing the other children. We noted “when the crime is

86a

one of infanticide or child abuse, evidence of repeated

incidents is especially relevant because it may be the only

evidence to prove the crime.” Jd. at 133. We further

found “the evidence [of other crimes or acts] is so per-

suasive and so necessary in case of infanticide or other

child abuse by suffocation if the wrongdoer is to be ap-

prehended, that we think its relevance clearly outweighs

its prejudicial effect on the jury.” Jd. at 135. We find the

need for other act evidence to be equally compelling in

the context of child sexual abuse. By the very nature of

the crime, there are seldom any eyewitnesses. Therefore,

as in this case, the defendant’s word is pitted against that

of a young child and the older defendant will almost cer-

tainly have an edge in credibility.

In this case, the jury was left to choose between be-

lieving the story of a young girl as related by several

witnesses or believing the testimony of her father, the

doctor, who offered several plausible explanations for the

child’s injuries. However, had the jury been allowed to

hear of the other sister’s very similar injuries, the doc-

tor’s explanations would no longer have been so plausible.

Given the similarity of the injuries and the fact that only

the defendants had access to both girls, the identity of

the perpetrators becomes clearer. And given this evi-

dence, the defenses of self-infliction, fabrication, or abuse

by Dr. Morgan become quite implausible.

We have stated previously that the possibly prejudicial

effect of evidence can “ ‘require exclusion only in those

instances where the trial judge believes that there is

a genuine risk that the emotions of the jury will be ex-

cited to irrational behavior, and that this risk is dis-

proportionate to the probative value of the offered evi-

dence.’”’ Masters at 87 (quoting Trautman, Logical or

Legal Relevancy—A Conflict in Theory, 5 Vand.L.Rev.

385, 410 (1951-52)). This is not that case. While we are

cognizant of the potential for prejudice in this case, we

87a

are also mindful of the fact that the trial judge could

have issued a limiting instruction. Jd. To simply exclude

this evidence which went not to the character of the ac-

cused but rather to essential issues on trial and which

was highly probative of the defendants’ guilt was an

abuse of discretion.

IV.

Hilary’s Statements to Her Mother

Immediately after returning home from visitation pe-

riods with her father, Hilary would often appear ex-

tremely excited and agitated and would begin to describe

to her mother sexual activities that had occurred dur-

ing the visits. On the advice of her attorney, Dr. Morgan

began to keep a diary recording Hilary’s statements.

The district court originally ruled that Dr. Morgan

could not testify to what Hilary had told her. The court

reasoned that if the diary itself were to be admitted into

evidence then any such testimony by Dr. Morgan would

merely be cumulative. However, at the conclusion of

trial, the court refused to admit the diary or excerpts

into evidence finding that they were self-serving and full

of irrelevancies. Without ever reaching the merits of

whether Dr. Morgan’s testimony or diary would fit

within one of the exceptions to the hearsay rule, the dis-

trict court effectively excluded all reports of what had

transpired during visitation.

Plaintiffs contend that five statements made by Hilary

to Dr. Morgan should be admitted under the excited ut-

terance exception to the hearsay rules. Fed.R.Evid. 803 ©

(2). There follows a synopsis of the five statements of-

fered by the plaintiffs:

March 25, 1985

Hilary was returned home by Dr. Foretich to Dr.

Morgan’s housekeeper at 3:35 p.m. Dr. Morgan ar-

——————————————

88a

rived at 5:35 to find Hilary running around the

house yelling and shrieking excitedly. At 5:00,

Hilary was calmed down enough to talk and began

to describe how she had been sexually abused by the

defendants.

May 20, 1985

Hilary was returned at 3:30, Dr. Morgan returned

home at 4:45. By 6:00, Hilary began to describe

sexual assaults that had been perpetrated on her by

the defendants.

October 21, 1985

Hilary was returned by her grandfather at 4:00 and

was again in a highly excited state. By 7:00, she

had settled down enough to report that she had been

sexually assaulted by the defendants.

January 20, 1986

Hilary was returned by her father at 7:00 p.m. and

began to tell her mother of sexual abuse that had

occurred the night before by her father.

July 20, 1986

Hilary was watching television with Dr. Morgan

and viewed a scene which prompted her to describe

sexual acts that had been performed on her by the

defendants.

Defendants argue that these out-of-court statements

made by Hilary to her mother were properly excluded

because Hilary’s age would have made her incompetent

to testify as a witness and because the statements do not

meet the requirements of the excited utterance exception

to the hearsay rule.

Rule 803 of the Federal Rules of Evidence provides in

pertinent part

89a

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

... (2) Excited utterance. A statement relating to

a startling event or condition made while the declar-

ant was under the stress of excitement caused by the

event or condition.

The basis for this rule, which creates a hearsay excep-

tion even when the declarant is available as a witness

is the assumption that an excited declarant will not have

had time to reflect on events and to fabricate. J. Wein-

stein & M. Berger, Weinstein’s Evidence § 803(2) [01]

(1984).

Defendant’s first and strongest objection to the ad-

mission of Hilary’s out-of-court statements under the

excited utterance exception is that Hilary would have

been incompetent to testify at trial and should not, there-

fore, be allowed to testify out of court.’ This argument

is without merit.

We agree with the majority of courts that have studied

this issue and have reached the conclusion that “although

a child is incompetent to testify, testimony as to his spon-

taneous declarations or res gestae statements is never-

theless admissible.” Annotation, Admissibility of Testi-

mony Regarding Spontaneous Declarations Mude by One

Incompetent to Testify at Trial, 15 A.L.R. 45th 1043

(1982).* This issue has seldom been raised before the

7 Rule 601 of the Federal Rules of Evidence states that “[e]very

person is competent to be a witness except as otherwise provided in

these rules.” However, since Hilary was never called as a witness,

we are not directly faced with the issue of whether she would have

been competent to testify at trial. Rather, we find that her state-

ments are admissible regardless of her compet «icy to testify in

court.

® See also Comment, supra, note 4 at 65 (“[T]he preponderance

of authority is to the effect that admissibility of excited utterances

is not affected by the declarant’s incompetence due to infancy or

90a

federal courts of appeals. However, those that have ex-

amined the issue are in agreement with our holding to-

day.”

Likewise, the leading commentators have concluded that

“an excited utterance is admissible despite the fact that

the declarant was a child and would have been incompe-

tent as a witness for that reason.” McCormick, McCor-

mick on Evidence § 297 at 858 (3d Edition 1984). See

also 6 Wigmore on Evidence § 1751 (Chadbourn Rev.

1976). Therefore, should Hilary’s out-of-court statements

to her mother otherwise qualify as excited utterances,

her youthful incompetency will not bar the admission of

this testimony.

To qualify as an excited utterance, the declarant must

(1) have experienced a startling event or condition and

(2) reacted while under the stress or excitement of that

event and not from reflection and fabrication. J. Wein-

stein & M. Berger, Weinstein’s Evidence § 803(2) [01]

at 803-87-91.""

There appears to be little doubt but that Hilary has

been subjected to a startling condition. Testimony of the

doctors and other witnesses was sufficient to justify a

finding that Hilary has been sexually abused. The ques-

other legal unavailability because the nature of the utterance is such

that it obviates the usual suorces of untrustworthiness in children’s

testimony.”’).

* See United States v. Nick, 694 F.2d 1199, 1202 (9th Cir. 1979)

(Three year old “could not have been subjected to cross-examination

even if he had been called as a witness by reason of his tender

years,” yet his statements were admissible under the spontaneous

declaration exception.) ; Jones v. United States, 231 F.2d 244 (D.C.

Cir. 1956) (Five year old was incompetent to testify as a witness

but statements to her mother were admissible as spontaneous

declarations. )

10 See also J. Bulkley, Child Sexual Abuse and the Law, 155

(1982).

9la

tion, then, is whether Hilary reacted while under the

stress of this condition.

To answer this question, several factors must be con-

sidered, including: (1) The lapse of time between the

event and the declarations; (2) the age of the declarant;

(3) the physical and mental state of the deciarant; (4)

the characteristics of the event; and (5) the subject mat-

ter of the statements. United Staies v. Iron Shell, 633

F.2d 77, 85-86 (8th Cir.1980), cert. denied, 450 U.S.

1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

In Iron Shell, the Eighth Circuit held in a child sexual

abuse case that “[{t|he lapse of time between the startling

event and the out-of-court statement although relevant is

not dispositive in the application of rule 803(2).” Id. at

85. Indeed, much criticism has been directed at courts

which place undue emphasis on the spontaneity require-

ment in child sexual abuse cases.'' It has been argued

that children do not necessarily understand sexual con-

tact by adults to be shocking, especially when the adult is

a parental figure from whom the child desires love and

affection.'* Even if the child is aware of the nature of

the abuse, significant delays in reporting this abuse may

occur because of confusion, guilt, and fear on the part

of the child.”

One attempt to deal with this problem has been a ree-

ognition that the time lapse to be considered in these

cases is not simply the time between the abuse and the

declaration. Rather, courts must also be cognizant of the

child’s first real opportunity to report the incident."

11 Note, A Comprehensive Approach to Child Hearsay State-

ments in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1756 (1983).

‘3 Jd.

13 Jd. at 1757.

14 See Nick, supra, Note 7, at 1201 (assault occurred sometime

during the day. The defendant and the child were asleep when

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Plaintiff’s declaration of July 20, 1986 has been proffered

with absolutely no reference to the time of abuse or the

child’s first opportunity to speak of the abuse and there-

fore cannot qualify as an excited utterance. However,

the first four statements proffered by the plaintiffs were

made within three hours of the child’s first opportunity

to speak with her mother.

In determining whether a statement qualifies as an ex-

cited utterance, courts have varied greatly as to just how

much of a time lapse is too much." Given all of the other

factors of trustworthiness present in this case, we find

that three hours is well within the bounds of reasonable-

ness and Hilary’s statements were spontaneous declara-

tions.

In addition to the time lapse consideration, numerous

other factors of trustworthiness cited as important by

the Court in Jron Shell are present in this case. All of

the statements offered by plaintiffs were made before

Hilary was four years old, and it is virtually incon

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