Domestic Relations – Wife defeats former husband’s contempt petition

Where father argued his child’s mother should be held in civil contempt for violating prior court orders regarding their minor child, his petition was dismissed.

Background

On Feb. 2-3, 2026, the parties tried the issues raised by the rule to show cause issued to plaintiff Sherri R. Miller by defendant Robert A. Berkman, involving allegations by father that mother is in civil contempt of prior orders in this case relating to the parties’ minor child.

Standard

A moving party in a civil contempt proceeding may establish a prima facie case by showing: (a) a clear and definite order; (b) the alleged contemnor knew about it and (c) the alleged contemnor failed to comply with it. Upon such a showing, the burden shifts to the alleged contemnor to show “justification.” Specifically, the alleged contemnor must show that he or she has acted “without fault,” which in practical terms means neither willfully nor contumaciously (i.e., bad faith).

CHI

Father alleges that despite his efforts to procure information about the minor from an entity called The Children’s Heart Institute, or CHI, mother has “failed to authorize or otherwise has prevented” the release of any information. Father further alleges that mother caused or instigated his removal from CHI’s information portal.

Assuming, but not deciding, that a clear and definite order exists that encompasses these allegations, the court finds that father has not established non-compliance with any such order by a preponderance of the evidence, much less clear and convincing evidence. Among other things, the parties’ testimony on this topic was in conflict but the court credits mother’s testimony that she did not engage in the conduct father alleges against her. Further, no one from CHI was called as a witness in support of father’s assertions.

504 meeting

Father alleges that mother failed to appropriately notify him of a so-called “504” meeting at the minor’s school. Assuming, but not deciding, that a clear and definite order exists and encompasses these allegations, the court finds that mother did notify father of the 504 meeting.

The court alternatively finds that father had an obligation under the May custody order to keep himself apprised of such matters and that by his own admission he failed to do so. He testified that he only sporadically (twice a month) checked a school-sponsored service called ParentVue.

That, and his relatively passive level of monitoring school-related communications, constitutes a form of unclean hands or estoppel under the facts of this case. It would be unreasonable to make mother an information surety when father’s own default was a primary source of his alleged injury. This was mother’s belief as well.

Ceremony

Father contends that mother failed to inform him in advance of an awards ceremony at the minor’s school in November 2023 and as a consequence he was unable to attend. In this instance, the court finds that mother and father each had a duty to inform the other, in advance, of school events they knew about. Mother did not comply. However, neither did father.

While father says he did not know about the event in the first place, the court finds that he did or, in the alternative, that he failed to exercise the reasonable due diligence required to keep himself informed of such matters. The court notes that when mother provided an after-the-fact account of the event, father did not make a contemporaneous allegation that he had not been informed of it in advance and did not claim he was unaware of it. The tenor of mother’s testimony was that she did not believe she had an obligation to notify father under the circumstances.

The court finds it would be unreasonable to expect only mother to observe a joint duty that father failed to fulfill himself. The court also finds that this issue was within the conduct, transactions or occurrences invoked by father’s motion to modify custody, parenting time and child support filed March 26, 2024, and that it was resolved through a “Final” Agreed Order dated Sept. 16, 2024. Accordingly, it cannot be relitigated under the doctrine of res judicata and separately because it was an issue resolved (i.e., settlement).

Defendant’s show cause petition dismissed with prejudice.

Miller v. Berkman, Case No. CL-2017-7308, April 1, 2026. Fairfax County Circuit Court (McEvoy). VLW 026-8-017. 8 pp.

Full-Text Opinion
VLW 026-8-017