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Cox v. Cox


March 28, 1994


Appeal from the Superior Court of the District of Columbia; Hon. Cheryl M. Long, Motions Judge, Hon. Linda Turner Hamilton, Trial Judge

Before Schwelb, Wagner and King, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Dolores E. Cox (the wife) asks this court to set aside provisions of a divorce decree which relate to the distribution of marital property. She contends that discovery rulings by the motions Judge and evidentiary rulings by the trial Judge unfairly prevented her from developing proof that Gideon Cox (the husband) had concealed assets by transferring them to L.W., a female co-worker. We reverse and remand for further proceedings.


The parties were married in 1973. In 1987, the husband left the wife and began a relationship with L.W. *fn1 One of the wife's principal claims at trial was that bank accounts and other assets nominally owned by L.W. were actually marital property which the husband had transferred to L.W. in order to avoid their equitable distribution as part of the marital estate. See D.C. Code § 16-910 (b) (1989). In her brief in this court, the wife has detailed alleged illustrations of such conduct which the husband has failed to contradict in his brief.

The case was initially called for a bench trial before Judge Susan R. Winfield on May 6, 1991. After the wife commenced her testimony, the Judge attempted to assist the attorneys to negotiate a settlement. The parties were unable to reach agreement, however, and judge Winfield certified the case to Judge Cheryl M. Long (the motions Judge) for trial in July, 1991.

Claiming to have learned for the first time during the aborted trial and the negotiations that followed it that the husband's responses to discovery had been incomplete, the wife moved to compel discovery, noticed L.W.'s deposition, and served her with a subpoena duces tecum. The husband opposed the motion as untimely, and counsel for L.W. moved to quash the notice of deposition and accompanying subpoena. Following an acrimonious hearing, the motions Judge denied the wife's request for further discovery, holding that, by announcing ready for trial, the wife had waived the right to complain about any deficiencies in the husband's responses to discovery. The notice of deposition and subpoena were ordered quashed. The Judge also ruled that the wife would not be permitted to call L.W. as a witness unless the trial Judge determined, as the trial proceeded, that things had happened "that make the whole situation look differently [from how] it looked a number of months beforehand."

The case was called for a second non-jury trial on October 23, 1991, this time before Judge Linda Turner Hamilton (the trial Judge). During these proceedings, while counsel for the wife was cross-examining the husband, the trial Judge ruled that the wife's counsel would not be permitted to question the husband regarding the ownership of funds in an account which he had shared with L.W. *fn2 The trial Judge also reaffirmed the motions Judge's ruling that the wife would not be permitted to call L.W. as a witness, observing that the wife's theory "simply has no nexus yet."

On November 21, 1991, the trial Judge issued Findings of Fact, Conclusions of Law, and a decree of divorce. She awarded the wife a 70% interest in the marital home, and set forth in detail the parties' respective shares in the remaining marital assets. The wife then noted this appeal, contending primarily that allegedly erroneous rulings by the motions Judge and by the trial Judge had precluded her from proving the existence of additional marital assets.


The wife first complains that the motions Judge abused her discretion by denying the wife's motion to compel discovery and by proscribing the taking of L.W.'s deposition. The wife further contends that she had a right to examine both the husband and L.W. at trial regarding assets which were ostensibly owned by the latter, but which arguably contained funds transferred by the husband in order to deplete the marital estate and to reduce the wife's share. We need not definitively decide the first issue, *fn3 because we agree with the wife as to the second.

The public and the court have a right to every person's non-privileged and admissible evidence. See United States v. Nixon, 418 U.S. 683, 709, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). "The need to develop all relevant facts in the adversary system is both fundamental and comprehensive." Id. Indeed, "the very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence." Id. The availability of compulsory process is imperative "to ensure that Justice is done." Id; see also Universal Airline v. Eastern Airlines, 88 U.S. App. D.C. 219, 224-25, 188 F.2d 993, 998-99 (1951).

"The parties to a civil action have a right to compulsory process for obtaining the attendance of essential witnesses in their behalf." 97 C.J.S. Witnesses § 3, at 351 (1957 & Supp. 1993). A citizen who has been improvidently called to testify may, of course, make a showing that he or she has no relevant information, and that attendance at the trial would be a waste of time. See Overholser v. De Marcos, 80 U.S. App. D.C. 91, 94, 149 F.2d 23, 26, cert. denied, 325 U.S. 889, 89 L. Ed. 2002, 65 S. Ct. 1579 (1945). "If it appears that the witness can give no relevant testimony the court should not require his attendance. In exercising this discretionary power the court should resolve doubts in favor of the party calling the witness. *fn4 Id. (emphasis added). The burden on a litigant who seeks to preclude his adversary from presenting relevant testimony is therefore a heavy one.

In the present case, the issue as to which the wife was seeking the testimony of the husband and of L.W. was demonstrably relevant. A spouse may not circumvent the equitable distribution of the marital estate by concealing marital assets or by manipulating title to them. Indeed, our statute, by its terms, requires the court to consider, among other things, each party's contribution to the "acquisition, preservation, appreciation, dissipation or depreciation in value" of the marital estate. D.C. Code § 16-910 (b) (emphasis added). This provision was designed "to avoid arbitrary or inequitable divestitures of property formal title to which was vested in but one spouse." McCree v. McCree, 464 A.2d 922, 928 (D.C. 1983). No statutory or common law privilege was asserted by L.W., nor did she present any other equitable argument to the court urging that she be excused from testifying or from complying with the subpoena. *fn5 We therefore conclude that the wife was entitled to call L.W. as a witness and to examine both L.W. and the husband with respect to any allegedly inequitable divestitures.


For the foregoing reasons, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. *fn6

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