Appeal from the Superior Court of the District of Columbia; (Hon. Geoffrey M. Alprin, Trial Judge)
Before Terry, Wagner, and King, Associate Judges. Opinion Per Curiam. Concurring opinion by Associate Judge Terry. Opinion by Associate Judge Wagner, Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Per Curiam
The parties to this litigation (hereafter "the wife" and "the husband") were married in 1976, executed a "Voluntary Separation and Property Settlement Agreement" in 1985, and were eventually divorced in 1987. Thereafter they remained in controversy over certain aspects of the separation agreement and divorce decree relating to money and property. Finally, the wife filed a motion asking the court to hold the husband in contempt because of his alleged failure to comply with various court orders, and a second motion seeking the issuance of subpoenas against an attorney, Charles Bruce, Esquire, who allegedly helped the husband conceal some of his assets by establishing a trust on the Isle of Man. *fn1
The court entered an order on December 3, 1990, granting both motions, finding the husband in civil contempt but imposing no sanctions. Instead, the order directed him to appear in court on January 23, 1991, to show cause "why he should not be arrested and detained at that time until he has purged himself of contempt by paying [the wife] all monies he owes her . . . or by showing good cause why he cannot do so . . . ." *fn2 The order also authorized the wife to depose Mr. Bruce "for the limited purpose of ascertaining the facts concerning the creation, location, and contents of a trust on the Isle of Man," and further authorized the issuance of "appropriate subpoenas" to Mr. Bruce, "including a subpoena duces tecum for documents and records in possession of Mr. Bruce relating to said trust, for the purpose of effectuating Mr. Bruce's testimony at said deposition . . . ." From that order the husband brings this appeal.
We hold, preliminarily, that the husband cannot challenge in this appeal the prior award of support pendente lite to the wife because any such challenge is barred by the doctrine of res judicata. We further hold that neither part of the trial court's December 3 order is final and appealable, and hence we dismiss this appeal for lack of jurisdiction.
More than six and a half years ago, appellee Catherine Ann Crane (the wife) fired the first salvo in what has become a long-running legal battle between these two former spouses. On February 26, 1986, she moved for a temporary restraining order and a preliminary injunction to prevent appellant Kent Bruce Crane (the husband) from removing assets from the District of Columbia. *fn3 Under a separation agreement which the couple had executed in 1985, the husband was required to pay the wife $12,500 every quarter for the next four years, and to secure those payments with collateral in the form of real estate or personal property. When the husband sold some real estate and sent the proceeds to the Government of Belize to pay a business debt, the wife sought injunctive relief to prevent him from removing any more assets from the District of Columbia.
Once she had obtained the injunction, *fn4 the wife moved for financial support pendente lite. The trial court granted her request in an order dated November 5, 1986. *fn5 The husband noted an appeal from that order (appeal No. 87-217). *fn6 Almost a year later, on September 11, 1987, the court entered a judgment of absolute divorce. In its decree the court expressly held that the 1985 separation agreement "is valid and should be enforced." It ruled that the wife was "entitled to specific performance of the agreement" and ordered the husband to pay the wife the $75,000 arrearage he then owed under the agreement, as well as the remaining payments as they became due. *fn7
The husband noted an appeal (No. 87-1403) from the judgment of divorce. That appeal was consolidated with his earlier appeal (No. 87-217) from the order granting pendente lite support. When the husband filed a brief which failed to address the pendente lite order, the wife moved to dismiss the appeal insofar as it related to that order. After the husband filed a response, the wife's motion was denied. Crane v. Crane, Nos. 87-217 & 87-1403, order filed November 9, 1988. *fn8 The consolidated appeals were argued before a division of this court, which affirmed both trial court orders -- the pendente lite support order of November 5, 1986, and the judgment of absolute divorce of September 11, 1987 -- in an unpublished memorandum opinion and judgment. Crane v. Crane, Nos. 87-217 & 87-1403 (D.C. October 16, 1989). *fn9
While the prior appeals were pending, the wife filed a motion asking the trial court to hold the husband in contempt for violation of the preliminary injunction and for failure to pay her the sums specified in the separation agreement. She also moved to compel the husband's attorney, Charles Bruce, to make himself available for deposition so that he might be questioned about the alleged creation of a trust on the Isle of Man after the trial court had enjoined the husband from moving his assets out of the District of Columbia. The husband filed an opposition, admitting that he had failed to make the payments but asserting that his financial situation had changed for the worse so that it was now impossible for him to comply with the judgment. He also argued that Mr. Bruce could not be subpoenaed to testify about any alleged trust because his testimony was barred by the attorney-client privilege.
After a hearing, *fn10 the trial court granted both of the wife's motions in its order of December 3, 1990. The court found the husband in contempt and ordered him to show cause why he should not be arrested for failure to comply with its earlier orders. The court also held that Mr. Bruce could be compelled to cooperate in discovery because the attorney-client privilege "does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime," *fn11 nor did it "protect communications which the client should reasonably expect to entail publication." The husband appeals, challenging the trial court's alleged reaffirmation of its earlier award of pendente lite support to the wife, the contempt citation, and the order authorizing the wife to take the deposition of Charles Bruce. Because none of the husband's claims are properly before this court, we dismiss this appeal.
Although the trial court's order of December 3, 1990, from which this appeal is taken, does not award any monetary relief to the wife, the husband asserts nevertheless that the court's finding of contempt based on his failure to comply with earlier orders, including (apparently) one or more orders directing him to pay pendente lite support, is inconsistent with the 1985 separation agreement. Because the issue of whether the separation agreement precluded the award of pendente lite ...