The DC Court of Appeals in Lake v. Lake, focused on two specific elements in award of alimony dispute:

• The metal health influence over earning capacity, and
• The expected future investment income.

Generally, the trial court has sole discretion in awarding alimony and as such balances, inter alia, the following elements among parties in awarding alimony to one side or the other:

• The duration of the marriage,
• The ages and health of the parties,
• Their respective financial positions, both past and prospective,
• Property ownership,
• The needs of the requesting spouse and the other spouse’s ability to contribute thereto, and
• The interest of society generally in preventing [the requesting spouse] from becoming a public charge.

The Court of Appeals in Araya v. Keleta, expanded the meaning of the marital property in the context of Civil Protection Orders and related filings.

In the case, wife-Keleta had filed a petition against husband-Araya alleging physical abuse and requesting a stay away order from the husband and from the marital home, which the trial court granted.

On Appeal, Araya argued that as the home in question was not in fact a martial property, the judicial officer was precluded from ordering him to stay away from such dwelling.  In short, the judicial officer had no authority to preclude him from entering a sole and separate non-marital property.

Specifically, the Intrafamily Offenses Act section § 16-1005(c)(4) (2001) pertaining to issuance of stay away orders provides:

(c) If, after hearing, the judicial officer finds that there is good cause to believe the respondent has committed or threatened to commit a criminal offense against the petitioner, the judicial officer may issue a protection order that:

(4) Directs the respondent to refrain from entering, or to vacate, the dwelling unit of the petitioner when the dwelling is:

• Marital property of the parties;
• Jointly owned, leased, or rented and occupied by both parties; provided, that joint occupancy shall not be required if the respondent’s actions caused the petitioner to relinquish occupancy;
• Owned, leased, or rented by the petitioner individually; or
• Jointly owned, leased, or rented by the petitioner and a person other than the respondent.

The DC Court of Appeals in Saxon v. Zirkle, imputed income during the divorce proceedings for voluntary unemployment.

Specifically, the trial court had granted parties absolute divorce while denying Ms. Saxon’s request for alimony and instead imputed income on her for unemployment, awarded the parties joint legal custody of their child, as well as modified Mr. Zirkle’s child-support obligations based on the imputed income.

On appeal, Saxon challenged to the trial court’s decision to impute $24,000 in income to her in determining alimony and child support calculations.

The issue of imputation of income arose during the alimony proceedings.  Based on the evidence presented, it was determined that:

• Ms. Saxon had a bachelor’s degree from college; and
• Had two real-estate licenses;
• Had been in the real-estate profession for over twenty-four years; and
• Had earned as much as $189,000 per year as a real-estate agent.

In Sudderth v. Sudderth, the DC Court of Appeals addressed whether it was appropriate to award property in lieu of alimony.

On appeal, Mrs. Sudderth’s claimed that the trial court had erred in distributing marital property in lieu of alimony without first calculating the amount and duration of alimony to be distributed.

In short, the Court of Appeals held that there are no restraints on the trial court’s ability to award marital property in lieu of alimony, and also it is not an abuse of discretion when a trial court denies a request for alimony and yet awards marital property.

Thus, there is no reason to disturb the trial court’s order merely because the trial court did not specify an amount of alimony against which the distribution of property in lieu of alimony could be measured.

Mrs. Sudderth also unsuccessfully argued that no ward of alimony should have been ordered as parties had a low standard of living, Mr. Sudderth was well educated with marketable skills not necessitating such an award.

The Court held that there are no set of rules or formulae for determining permanent alimony, however such award will not be reversed so long as the trial court had made a fair and equitable assessment considering the particular facts of the case in light of all relevant factors, including the statutory elements.

The Court of Appeals in Herron v. Johnson, expounded on the equitable distribution of marital property that has been dissipated.

Dissipation of martial property is generally defined as where one spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

Here, the trial court had determined that the pension funds accumulated during the marriage and used by one spouse and spent and dissipated during the marriage is no longer a property for the court to factor in with regards to the equitable distribution of the martial assets.

The Court of Appeals disagreed and remanded.

The DC Statute pertaining to distribution of marital property requires consideration of all property accumulated during the marriage in a manner that is equitable, just and reasonable, after considering all relevant factors including, but not limited to each party’s contribution to the property or dissipation or depreciation in value of the assets subject to distribution.

Specifically pension rights, to the extent acquired during the marriage, are property designated and are subject to distribution unless the court enters an order distributing future periodic payments from the fund.

Here, the Court of Appeals held the dissipated pension funds should have been considered in the distribution of martial property.  Particularly where dissipation of marital property by a spouse was in a manner intended to circumvent the equitable distribution of the marital asset.

Dissipation maybe proven by prima facie evidence that the spouse used marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown. Upon such showing, the court must distribute the property in question and enter judgment accordingly regardless of whether or not the asset still exists.

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The Court of Appeals in Araya v. Keleta, specifically addressed the issue of commingled property during the marriage as well as addressing child custody, support and alimony.

After a five-year marriage, husband filed for divorce seeking physical custody of their three children as well as seeking distribution of marital assets and dispensing of alimony.

The trial court after extensive litigation awarded physical custody to the mother with the father having a visitation schedule, as well as distributing the marital home in its entirety to the wife and awarding significant alimony and child support to the wife.

The Court of Appeals affirmed the award of physical custody to the mother as parties were not on equal legal footing due to extensive intrafamily offenses generally initiated by the father.

As a matter of law, there is a rebuttable presumption that joint custody is in the best interest of the children, except in an event where the judicial officer has found by a preponderance of the evidence that an intrafamily offense has occurred.

The trial court had determined that there were several cases of assault against the mother with at least one conviction in VA courts.   The wife had also a conviction for destruction of property again the husband however the court deemed parties were not equal with respect to domestic violence in that while the wife’s conduct was also reprehensible, it was not so dangerous or so likely of repetition as to the husband’s episodic assaultive behavior.

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The DC Court of Appeals in Gail v. Sherman, specifically addressed division of property created after separation and the formula used by the court to equitably distribute such property.

Sherman had appealed the trial court decision granting her a sum of $40,000 for her equitable portion of the value of AutoBody that her husband Sherman had created after the couple had separated.

Factually, parties had a business jointly owned and operated during their marriage called FuelLine and after separation both had agreed and via an agreement to bring that business to closure.   Sherman thereafter started a new similar business referred to as AutoBody and the distribution of that property was the subject of the appeal.

It is well established that the trial court is charged by statute with distributing marital property in a manner that is equitable, just and reasonable, after considering all relevant factors.  Generally, the party who claims sole and separate ownership has the burden of establishing that the property is his or her separate property.  Thus, the court assigns each party his or her separate property, then distributes all other property accumulated during the marriage — i.e. marital property.

The trial court had found that AutoBody was marital property because:

•  The funds used by Sherman to begin AutoBody were not his separate property; they were either marital funds reimbursed from his brother and sister-in-law ($14,000), or received from his mother ($40,000) for an interest in the business, and
• Sherman used the art boards and layout from FuelLine to create the first editions of AutoBody as virtual clones of the FuelLine magazine, which prior to dissolution was undoubtedly marital property.

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The DC Court of Appeals in ABULQASIM v. MAHMOUD, reviewed the lower court decision pertaining to appellant’s claim that the trial court:

1. Lacked subject-matter jurisdiction over the matter because neither party had been a bona fide resident of the District of Columbia for at least six months prior to appellant’s filing of the divorce action;
2. Abused discretion in admitting hearsay testimony regarding an email, not introduced into evidence, that alleged appellant was having an extramarital affair; and
3. Erred in including a number of items appellant asserts were his separate property in the distribution of marital property.

Factually, appellant Abulqsim sought divorce from his wife Mahmoud in DC Courts after both has travelled back and forth to and from Sudan and the six months continuous residency  requirements before filing had been broken.

The DC bona fide residence filing requires that no action for divorce or legal separation shall be maintainable unless one of the parties to the marriage has been a bona fide resident of the District of Columbia for at least six months preceding the commencement of the action.

To break the residency chain, there must be: 1) physical presence in another jurisdiction; and (2) an intent to abandon the former domicile and remain for an indefinite period of time in a new jurisdiction.

The trial court as well as the Court of Appeals held that short period of stay in Sudan did not break the chain of residency and the DC courts had jurisdiction to rule on the divorce filing.  Parties own a home in the District, children attended DC schools and parties held various bank accounts all evidence of substantial and continuous contact with the jurisdiction.

The Court of Appeals in Dufy v. Dufy, addressed and analyzed to certain extent the enforceability of a Divorce Settlement Agreement and in particular the child support provision.

Appellant there had challenged the trial court’s enforcement of the parties’ separation agreement as part of its Judgment of Absolute Divorce, and both the trial court as well as the appellate review established that the agreement was complete and unambiguous on its face, and that the parties had demonstrated an intention to be bound by it.

Thus, the trial court had found that the agreement was an enforceable contract.

Generally, courts encourage the use of separation agreements to settle the financial affairs of spouses who intend to divorce as the policy is based on the notion that the parties are in a better position than the court to determine what is fair and reasonable in their circumstances.

The courts have also consistently held that in the absence of fraud, duress, concealment or overreaching, a separation agreement is presumptively valid and binding no matter how ill-advised a party may have been in executing it.

In short, a separation agreement is a contract, subject to the same law governing other contracts and to be enforceable, there must be:

1. An agreement to all material terms, and
2. Intention of the parties to be bound.

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The DC Court of Appeals in McClintic v. McClintic, addressed and analyzed in details when it is appropriate for the trial court in divorce litigation to award attorney’s fees.

Factually, parties unable to settle after more than a year and extensive mediation proceeded to trial with the trial court ultimately granting the divorce, dividing the marital property, and awarding the couple joint legal and physical custody of their three children.

Subsequently, both parties sought to recover attorney’s fees, each arguing that the other had made the litigation burdensome and oppressive.

Mrs. McClintic argued that Mr. McClintic’s systemically and throughout the case had vilify her, painted her in the worst possible light, while refusing to compromise, charging ahead with his legal assaults on her with his superior economic circumstances to browbeat and harass her with unnecessary and unfair salvos of legal attacks.

Mr. McClintic argued extensive tactics of delays and obfuscation on part of his wife contributing to unnecessary legal fees. Essentially bad faith and burdensome litigation.

The trial granted Mr. McClintic’s legal fees relying erroneously on D.C. Code § 16-911(a) enabling parties to litigate issues of divorce … without becoming public charges, especially where the resources of the parties are unequal without considering whether either party had shown a need for suit money which the Statute requires.

The Court of Appeals for the first time considered whether § 16-911(a) authorizes the court to award attorney’s fees to a spouse absent a showing that “suit money” is needed to enable that spouse to litigate the divorce action on a level playing field with the other spouse, and in short holding that — it does not.

Specifically, § 16-911(a)(1), awarding pendete lite relief provides:

1. Require the spouse or domestic partner to pay pendente lite alimony to the other spouse or domestic partner; require one party to pay pendente lite child support, including health insurance coverage, cash medical support, or both, for his or her minor children committed to another party’s care; and require the spouse or domestic partner to pay suit money, including counsel fees, to enable such other spouse to conduct the case.

Before an action for divorce in the District can be filed, the residency requirements must be met.  Generally, the DC Court will have jurisdiction to hearing the matter if the following criteria are met:

• Specifically, no action for divorce or legal separation shall be maintainable unless one of the parties to the marriage has been a bona fide resident of the District of Columbia for at least 6 months next preceding the commencement of the action.

However, an action for divorce or legal separation by persons of the same gender, even if neither party to the marriage is a bona fide resident of the District of Columbia at the time the action is commenced, shall be maintainable under the following circumstances

• The marriage was performed in the District of Columbia; and
• Neither party to the marriage resides in a jurisdiction that will maintain an action for divorce or legal separation: 1) It shall be a rebuttable presumption that a jurisdiction will not maintain an action for divorce or legal separation if the jurisdiction does not recognize the marriage; 2)  Any action for divorce or legal separation as provided by this subsection, including any accompanying petition for alimony, assignment and equitable distribution of property, pendente lite relief, or child custody determination shall be adjudicated in accordance with the laws of the District of Columbia.
• No action for annulment of a marriage performed outside the District of Columbia or for affirmance of any marriage shall be maintainable unless one of the parties is a bona fide resident of the District of Columbia at the time of the commencement of the action.
• The residence of the parties to an action for annulment of a marriage performed in the District of Columbia shall not be considered in determining whether the action shall be maintainable.
• If a member of the armed forces of the United States resides in the District of Columbia for a continuous period of 6 months during his or her period of military service, he or she shall be deemed to reside in the District of Columbia for purposes of this section only.

The Court of Appeals on June 18, 2020, denied and dismissed notice of appeal from a final decree and judgment of divorce in Deloatch v. Deloatch as filed untimely.

Procedurally, the trial court had issued a judgment of absolute divorce settling various claims between Dwight G. Deloatch and his former wife, Robin Sessoms-Deloatch, in May 2015 and had denied motion to vacate the judgment on March 30, 2016. Subsequently in January 2020, Mr. Deloatch filed an appeal from the underlying judgment.

The Court of Appeals issued an order directing him to show cause why the appeal should not be dismissed as untimely where it was filed nearly four years after the time permitted by Rules 4(a)(1) & 4(a)(4)(A)(iii).

Specifically the pertinent Rules provide:

Rule 4.

Appeal in a Civil Case.

• Time for Filing a Notice of Appeal: the notice of appeal in a civil case must be filed with the Clerk of the Superior Court within 30 days after entry of the judgment or order from which the appeal is taken unless a different time is specified by these Rules or the provisions of the District of Columbia Code.

Effect of a Motion on a Notice of Appeal.

If a party timely files in the Superior Court any of the following motions under the rules of the Superior Court, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

• For judgment as a matter of law;
• To amend or make additional factual findings, whether or not granting the motion would alter the judgment;
• To vacate, alter, or amend the order or judgment;

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In the District, there is a viable alternative to a legal marriage that allows for legalizing a relationship in order to share health and other benefits while maintaining financial independence: Domestic Partnership Registration.

As registered domestic partners, family member benefits are conferred, such as hospital visitation, medical and family leave as well as extended government and private health insurance benefits for the partner.

However, as partnership is not a marriage by definition and construction, as long as the parties’ financial commingling is minimal to none, then the financial burden of the equitable distribution of property, spousal support, and all other marital legal parameters are deemed inapplicable.

The key is to thread carefully after the domestic partnership registration to avoid the legal definitions of common law marriage.  The elements for common law marriage for same sex couple are the same as non-same sex couples in that such requires:

• Cohabitation following an express mutual agreement, which
• Must be in words of the present tense,
• To be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.

Moreover, the District’s Domestic Partnership Laws allow for registration as well as the termination of a domestic partnership in a rather short order and with significantly less legal steps as in a dissolution of marriage.

In order to register and formalize a domestic partnership, a declaration of domestic partnership must be filed and signed by the domestic partners affirming under penalty of perjury that each domestic partner:

• Is at least 18 years old and competent to contract;
• Is the sole domestic partner of the other person;
• Is not married; and
• Is in a committed relationship with the other person.

1) I have no assets or property now to protect or to designate, do I still need a prenuptial agreement?

Yes, because not only prenuptial agreements protect assets and property before marriage, certain language can be drafted to protect future assets as potentially non-marital.

2) What are the common items prenuptial agreements protect?

Assets and property, inheritance, retirement accounts, trust benefits and distributions,  business and partnership ownership to name a few.

3) How can one insure that the agreements drafted are enforceable?

Premarital agreements are not enforceable if:

• Not voluntarily executed by both parties
• The agreement was unconscionable

The unconscionability test is dictated by whether:

1. There was full, fair and reasonable disclosure of assets and property to be considered
2. There was a voluntary waiver in writing to claim over property already disclosed and excluded
3. There was reasonable and adequate knowledge and understanding of the finances and property involved
4. Both parties to the agreement had the benefit of legal counsel to obtain independent advise.

4) Can Child support and alimony language be incorporated in the agreements?

Alimony restriction or limiting language may be incorporate as long as reasonable and more or less consistent with elements the court considers in awarding alimony — however child support is statutorily regulated and may not be abrogated through a private agreement.

Here are some the elements the court considers in awarding alimony:

• Financial structure
• Secure employment
• Standard of living
• Length of marriage
• Contributory party
• Physical and emotional factors
• Ability to pay and financial resources

DC Code § 16–911, titled Pendente lite relief, allows for filing of a petition for support during the pendency of:

1. A legal separation,
2. Divorce; or
3. The termination of a domestic partnership

In such cases, the court may require one party after holding a hearing to make payment of:

• A pendente lite alimony, or
• Child support
• Health insurance coverage or
• Suit money, including counsel fees.

The Court generally considers the same factors in awarding alimony to dispense Pendente lite alimony and support, that is:

1. Ability of the party seeking alimony to be wholly or partly self-supporting;
2. Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment;
3. Standard of living that the parties established during their marriage or domestic partnership, but giving consideration to the fact that there will be 2 households to maintain;
4.  Duration of the marriage or domestic partnership;
5. Circumstances which contributed to the estrangement of the parties;
6. Age of each party;
7. Physical and mental condition of each party;
8. Ability of the party from whom alimony is sought to meet his or her needs while meeting the needs of the other party; and
9. Financial needs and financial resources of each party, including:

The DC Court of Appeals in Spellman v. Kelly, decided in July 2016, while addressing personal jurisdiction validated in essence validity of a common law marriage claim.

Factually, Mr. Spellman and Mr. Kelly, who both lived in the District, met in 1988 and began dating.  On or about 1998, the two decided to live together and to hold themselves out as partners.

Kelly also owned a home in Delaware, where he and Spellman stayed on the weekends and over the holidays.  After Kelly retired in 2006, he began spending more of his time at his Delaware home although continued consulting work in the District for several years, travel to the District and spent time with Spellman.

Kelly and Spellman co-hosted social events in the District, sent joint holiday cards from Spellman’s DC address, attended book clubs, the opera, and the theater together in the District.

Kelly passed away in 2012 and as Spellman filed for spousal allowance in DC in 2013 as well as recognition of common law marriage of 1998.  Kelly’s estate objected on grounds that there was no documentation of a marriage between parties that would be recognized under Delaware and furthermore DC courts had no personal jurisdiction over Kelly.  The trial court ruled for Kelly and Spellman appealed.

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The Court of Appeals in Oshinaike v. Oshinaike, addressed spousal claim on a retirement account where there existed already a post martial agreement on that very subject.

Specifically, on appeal Marcia Oshinaike sought review of the trial court’s ruling that her former husband (Solomon Oshinaike), did not expressly waive his rights with respect to her foreign service retirement benefits and thus was entitled to portions of that retirement benefit.

Oshinaikes were married in 1989. After Ms. Oshinaike joined the State Department as a Foreign Service officer parties executed a post marital agreement expressly stating that: Mr. Oshinaike waives all rights to Mrs. Oshinaike’s pension, federal health benefits, annuity, and survivor benefits.

The trial court ruled as a matter of law that the agreement does not validly waive Mr. Oshinaike’s rights with respect to Ms. Oshinaike’s Foreign Service pension.

The trial court explained that, under 22 U.S.C. § 4054(a) (2006), an agreement to waive spousal rights to a Foreign Service pension must expressly provide for such waiver.

The statute states:

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The Court of Appeals in Khawam v. Wolfe decided on August 22, 2019, delineated all legal theories available to recover attorney’s fees in a child custody and by extension in relating family matters.

Here, Wolfe moved to recover attorney’s fees ($700K) against Khawam for a rather protracted and vexatious litigation and under three theories:

• Common law theory of “necessaries” which permits an award of attorney’s fees in a child-custody case if the court finds that engaging an attorney was necessary to protect the interests of the child;
• The “bad faith” exception which permits recovering fees against a party who has acted in bad faith, either vexatious, wanton, or for oppressive reasons connected to the litigation; and
• Statutory provision authorizing payment of “suit money,” including attorney’s fees, in divorce proceedings.

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The Court of Appeals in Melbourne v. Taylor[1], analyzed and opined on the legal standard for a parent to change the child’s name after separation and divorce.

The general legal standard for a name change petition by either parents after separation or divorce is the best interests of the child criteria as listed in defined in the legal custody statute § 16-831:

1. The child’s need for continuity of care and caretakers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;
2. The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child;
3. The quality of the interaction and interrelationship of the child with his or her parent, siblings, relatives, and caretakers, including the third-party complainant or movant; and
4. To the extent feasible, the child’s opinion of his or her own best interests in the matter.

In most family cases, the litigation does not and should not end by the Associate Judge or the Magistrate Judge’s final ruling.

As these cases are not jury demandable, often times the assigned Judge may issue multiple rulings, including final decree of divorce, division of property, alimony and child support as well as the physical and legal custody of the children.  Significant and life altering decisions and all by a single Judge who may be subjectively objective.

And although most family judges are experienced, fair and equitable in dispensing decisions well supported in fact and law – there are cases and circumstances in which the facts and the law do not support the decision and an appropriate remedial step would be to have an appellate review.

This blog addresses the appellate procedure and steps in the family cases:

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In order to either file or move to establish child custody or child support, first parentage has to be established.

There are several ways in which the court can make a parentage determination as outlined below.

Presumption of Paternity

In the District, father-child paternity is presumptive under the following circumstances:

• If the putative father and the child’s mother are married, or in a domestic partnership either at the time of conception or birth, or between conception and birth, and the child is born during the marriage or domestic partnership.
• If prior to the birth of the child, the putative father and the mother have attempted to marry and some form of marriage ceremony has been performed in compliance with the applicable law — even if such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage.
• If, after the birth, the presumptive or putative father and the mother marry or attempt to marry even though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or
• If the putative father has acknowledged paternity in writing.

On the other hand, the mother-child relationship is established by a woman having given birth to a child, or by an adjudication of a woman’s parentage.

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The Court of Appeals in Gill v. Nostrand, decided on April 25, 2019, defined and analyzed the legal elements for common law marriage pertaining to same sex couples.

Here Gill moved for legal separation against Nostrand requesting alimony and division of property shortly after Nostrand legally married another partner.

The trial court in short determined that the relationship did not meet the requisite requirements of common law marriage, the Court of Appeals with further detailed analysis affirmed.

In its ruling, the Court held that a party in a same-sex relationship must be given the opportunity to prove a common law marriage even when at a time same-sex marriage was not legal in the District.

The elements for common law marriage for same sex couple are the same as non-same sex couples in that such requires:

• Cohabitation following an express mutual agreement, which
• Must be in words of the present tense,
• To be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.

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The Court of Appeals in Crater v. Oliver decided on February 14, 2019, considered whether stock options would be an ordinary income for the purposes of dispensing alimony payments.

Generally the court considered the following factors in the award of alimony:

1. Ability of the party seeking alimony to be wholly or partly self-supporting;
2. Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment;
3. Standard of living that the parties established during their marriage or domestic partnership, but giving consideration to the fact that there will be 2 households to maintain;
4. Duration of the marriage or domestic partnership;
5. Circumstances which contributed to the estrangement of the parties;
6. Age of each party;
7. Physical and mental condition of each party;
8. Ability of the party from whom alimony is sought to meet his or her needs while meeting the needs of the other party; and
9. Financial needs and financial resources of each party.

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DISTRIBUTION OF RETIREMENT ACCOUNTS AFTER MARRIAGE: DC COURT OF APPEALS

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RECENT WASHINGTON DC COURT OF APPEALS DECISION: EQUAL DISTRIBUTION OF MARITAL PROPERTY NOT NECESSARILY EQUITABLE: WASHINGTON DC DIVORCE LAWYER