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05/04/93 JAMES M. SINGER v. CAROL POSNICK SINGER

DISTRICT OF COLUMBIA COURT OF APPEALS


May 4, 1993

JAMES M. SINGER, APPELLANT
v.
CAROL POSNICK SINGER, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)

Before Rogers, Chief Judge, and Ferren, Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Kern

KERN, Senior Judge : Appellant-husband, a resident of New York, brought an action in the trial court for divorce from appellee-wife. He appeals from the judgment entered after trial insofar as it ordered him to pay her (1) $9,125 "as her equitable distribution share in the proceeds of the sale of their marital residence," (2) alimony in the amount of $500 per month, and (3) attorney's fees in the amount of $2,500. We affirm the court's judgment as to the distribution of the proceeds of the sale of the marital home and the award of counsel fees. However, we remand the case to the trial court for a further hearing and further findings as to the net income of appellant and his ability to pay alimony. See Ealey v. Ealey, 596 A.2d 43, 46 (D.C. 1991); Mumma v. Mumma, 280 A.2d 73, 76 (D.C. 1971).

Appellant, citing our decision in Turner v. Taylor, 471 A.2d 1010 (D.C. 1984), first argues [Reply Brief at 8] "that because the property had been sold nearly nine years prior to trial, the trial court had no authority to award Mrs. Singer compensation pursuant to a distribution of marital property." Our decision in Turner is inapposite to the instant case. There, we concluded that the trial court lacked statutory authority in a divorce action to award damages to the wife because the husband had destroyed her clothing, linens, and furniture prior to the commencement of the divorce action.

Here, the parties were engaged and commenced living together in 1973 in a house presented to them as a gift by appellant's parents upon their engagement to be married. In 1979, the parties entered into a ceremonial marriage. In 1981, the parties separated and the house was sold. The trial court found that the marital home, viz., the house in which they had been living since 1973, and as husband and wife since 1979, was sold for a profit of $36,500 which profit went entirely to appellant. *fn1 The trial court has statutory authority under D.C. Code § 16-910 (1989 Repl.) *fn2 to distribute "in a manner that is equitable, just and reasonable" all the property accumulated during the marriage. We conclude that the court in the instant case had jurisdiction pursuant to the statute to distribute between appellant and appellee the proceeds from the sale of the marital home in which they had lived as husband and wife during their marriage as a result of receiving it as a gift to both of them from appellant's parents.

Appellant next contends [Reply Brief at 10] that since the parties' marital home, viz., the house in which they lived for some eight years, was titled in the names of appellant and his parents it was not "a gift to the parties jointly." However, the trial court credited appellee's testimony that the house had been a wedding gift to both of the parties upon the occasion of their engagement. D.C. Code § 16-910 (b) specifically empowers the trial court to distribute "property accumulated during the marriage, regardless of whether title is held individually or by the parties in a form of joint tenancy or tenancy by the entirety." Accordingly, title is not necessarily determinative of whether property is "marital property." See Brice v. Brice, 411 A.2d 340, 343 (D.C. 1980) (discussing factors which can create an equitable interest in real property in a spouse who does not hold title).

Appellant also argues [Reply Brief at 9] that the marital home, or any proceeds from its sale, was his "sole and separate property" and hence "was not subject to distribution by the trial court." However, the trial court found to the contrary, expressly finding that [R. 160-160a] "the house was given to both James and her [the parties] as a contemplated wedding gift. Even though the gift was made before they consummated the marriage, when the marriage subsequently occurred this was sufficient to give her a marital interest in the real property." The evidence in the record supports such a finding.

Finally, appellant argues [Brief at 24-25] that "even were the property [the marital home] to be subject to distribution, the trial court abused its discretion in its manner of doing so." We note that the trial court expressly recognized [R. 161]: "Where two parties have an interest in real estate, it is appropriate for the Court to look at all the factors to make sure that one of the parties is not unjustly enriched at the expense of the other." See Robinson v. Evans, 554 A.2d 332, 338 (D.C. 1989) (citation and internal quotations omitted) (explaining that a constructive trust in a divorce action is "a flexible remedial device," the purpose of which is "to force restitution in order to prevent unjust enrichment"). The court went on to conclude upon all the factors here [R. 161-62] "that it would have been inappropriate to give her a fifty percent share of the net proceeds . . ." and accordingly awarded her only 25% of the proceeds. *fn3 We are not persuaded under these circumstances that the court abused its discretion in determining that appellee should receive $9,125 out of the $36,500 profit realized on the sale of the marital home. *fn4

We turn now to the court's alimony award. We are unable to discern in the court's findings of fact any finding on appellant's ability to pay alimony. See McCree v. McCree, 464 A.2d 922, 932 (D.C. 1983) (factors for consideration in evaluating alimony award include duration of the marriage, the parties' ages and health, the payor spouse's ability to pay in light of his or her net income, and society's interest in seeing that former spouses do not become public charges).

Appellee vigorously argues that the record contains evidence (and reasonable inferences therefrom) that appellant is financially able to provide spousal support for appellee. Nevertheless, the trial court did not on the record indicate upon what evidence it relied and how it concluded that $500 per month was the proper alimony award under the particular circumstances of this case. We have noted: "A trial Judge must make findings of fact and Conclusions of law with respect to every material issue that is raised; otherwise meaningful appellate review cannot occur and this court must remand the case or the record." Ealey, supra, 596 A.2d at 46; see also Mumma, supra, 280 A.2d at 76 (case remanded for further findings on husband's net income because trial court made no finding of it).

The trial court may well have been hampered in making specific findings on appellant's financial capabilities by the uncertain nature of his work and the absence of his tax returns in recent years. *fn5 Nevertheless, we are confident that upon remand the court will be enabled by its processes and proceedings to make a finding on appellant's annual income and financial capabilities so that all of the factors to be weighed in determining the proper spousal support are on the record.

As to the award of an attorney's fee to appellee, appellant contends [Brief at 34-35] that the trial court committed reversible error by failing to take into account the ability of appellant to pay such award and the "respective earning capacities of the parties." The record in our view demonstrates that the court did in fact consider the duration and cost of the litigation, the respective earning capacities of the parties, and appellant's ability to pay some part of appellee's counsel fees. See Rachal v. Rachal, 489 A.2d 476, 478 (D.C. 1985). We are not persuaded that the court's award was "so arbitrary" under the circumstances as to amount to an abuse of its discretion. See Darling v. Darling, 444 A.2d 20, 23 (D.C. 1982) (quoting Ritz v. Ritz, 197 A.2d 155, 157 (D.C. 1964)).

In sum, we affirm the trial court's award to appellee from appellant of $9,125 and $2,500, respectively. We reverse the trial court's award of spousal support in the amount of $500 per month and remand the case to the trial court with directions to conduct further proceedings and then to make findings of fact and Conclusions of law concerning the spousal support due appellee from appellant upon the basis of the appropriate factors. *fn6

So ordered.


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