Moore v. Moore

391 A.2d 762 (D.C. 1978)

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Nature of the Case

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Facts

Reuben (P) and Sidney (D) had a child during their marriage. D and the child moved in with the maternal grandparents when the marriage went south. P filed a custody action. The court granted temporary custody to D and gave P visitation. P then took the child out of state. Eventually, P was found, and the child was taken back to D. P filed a formal complaint of custody. D’s pleadings did not ask for custody of her child or any affirmative relief. The court nonetheless granted her custody, child support, separate maintenance, and counsel fees. The court reasoned that these issues had to be tried under the implied consent of the parties. A granting of her motion to conform the pleadings to the evidence rendered the relief possible. P appealed; the issues were not tried by implied consent, and he was not aware that they were being contested and was thus prejudiced.