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February 27, 1998



Before Wagner, Chief Judge, and Schwelb and Ruiz, Associate Judges.

The opinion of the court was delivered by: Wagner, Chief Judge:

This appeal arises out of a divorce proceeding. Appellant, Joseph Lewis, challenges on appeal the trial court's findings on the distribution of the parties' property and the determination of child support. Specifically, he contends that the trial court erred in concluding as a matter of law that the settlement proceeds from a wrongful death and survival action brought by appellee, Glenda Lewis, arising out of the death of her daughter by a prior union, was her sole and separate property. Mr. Lewis also contends that the trial court erred in awarding the marital home to Mrs. Lewis, in calculating the amount of child support, and in awarding child support retroactively. We find no error in the trial court's ruling that the settlement proceeds are the sole and separate, non-marital property of Mrs. Lewis. Mrs. Lewis concedes that the trial court erred in failing to take into account her income in setting the amount of child support. The trial court also failed to consider the value of the marital home and the complete assets of Mrs. Lewis in determining how it should be distributed. Therefore, we remand the case for further proceedings consistent with this opinion.

I. Factual Background

Mr. and Mrs. Lewis were married on May 25, 1983. Three children were born to the parties: Don Lewis, deceased; Duane Lewis, born on July 24, 1978; and Dionne Lewis, born on May 17, 1986. In 1984, the couple purchased a home in Washington, D.C. to which Mrs. Lewis contributed two-thirds of the settlement costs, and Mr. Lewis contributed one-third. Each of them agreed to pay one-half of the mortgage payments; however, Mrs. Lewis became seriously ill for six months following Dionne's birth in 1986, and as a result, she was unable to make her share of the payments. She suggested that Mr. Lewis pay the mortgage payments in full, and she would pay the other bills. Mr. Lewis ceased making any contributions to the mortgage in January 1987. Mrs. Lewis paid the mortgage and the costs for repairs and improvements to the home thereafter. She also paid for utilities, food and clothing for the children, who were in her care. Except for a few gifts, Mr. Lewis made no financial contributions to the children's support.

After continuous abuse, Mrs. Lewis filed for a Civil Protection Order against Mr. Lewis, which the court granted on September 21, 1988. Thereafter, the parties lived separate and apart from each other. Mrs. Lewis sued Mr. Lewis for absolute divorce based on separation of one year in April of 1993. Mr. Lewis counterclaimed, seeking alimony and a declaration that the settlement proceeds Mrs. Lewis received from a wrongful death and survival action were marital property, and subject to division, along with the marital abode. Mrs. Lewis filed a motion for summary judgment, claiming that the settlement proceeds constituted her sole and separate property, which the trial court granted.

Following a trial on the remaining issues, the trial court entered Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce. In addition to granting the divorce, the trial court determined that: (1) Mr. Lewis was gainfully employed and earning at that time $41,000 per year, and therefore, he should pay child support in the amount of $1,100.16 per month according to the Child Support Guidelines; (2) Mr. Lewis should pay child support (totalling $24,108) retroactive to the date of the filing of the complaint; (3) Mr. Lewis did not establish a factual basis or sufficient need for alimony; (4) The marital home was purchased for $82,000 and the parties' mortgage loan was in the amount of $82,820 at an interest rate of 13.5%; and (5) the parties contributed equally to mortgage payments made on the home for a two-year period. Since January 1987 until the time of trial, Mrs. Lewis had made all contributions to the mortgage, utilities and other expenses for the home. The court made no specific finding as to the fair market value of the property; however, it awarded Mrs. Lewis the entire interest in the real property. [708 A2d Page 251]

II. The Wrongful Death and Survival Proceeds

Mr. Lewis argues that the trial court erred in ruling on summary judgment that the settlement proceeds from the wrongful death and survival action received by Mrs. Lewis during the marriage are not marital property subject to distribution between the parties on divorce. He contends that settlement proceeds are not property acquired by "bequest, devise, or descent" within the meaning of D.C.Code § 16-910(a) (1997), which may be assigned under the statute to each party as his or her sole and separate property.

The facts underlying this issue are not in dispute. Kathryna Gordon was born to Mrs. Lewis in 1974, and she died on December 20, 1985 at Howard University Hospital. Mr. Lewis concedes that he is not Kathryna's biological father. Mrs. Lewis was appointed personal representative of Kathryna's estate on July 11, 1986 by the Superior Court. She filed a wrongful death and survival action in her individual capacity and as personal representative of her daughter's estate. The case was settled and dismissed with prejudice following Mrs. Lewis' execution of a confidential settlement agreement and general release. The settlement agreement did not allocate the settlement proceeds to any particular claim. The net proceeds of settlement were distributed in accordance with the laws of intestate succession of the District of Columbia. See D.C.Code § 19-308 (1997).

Mr. Lewis argues that neither § 12-101 (Survival Act) nor § 16-2701 (Wrongful Death Act) of the D.C.Code are statutes of descent and inheritance. He contends that the rights of action under these statutes are not property interests in the decedent which are subject to inheritance. Therefore, he contends, the proceeds of settlement received by Mrs. Lewis constitute property acquired by her during the marriage which is subject to distribution under D.C.Code § 16-910(b).

The distribution of property in a divorce action brought in the District of Columbia is governed by D.C.Code § 16-910. Absent a valid ante-nuptial or post-nuptial agreement or a decree of legal separation disposing of property, the court must "assign to each party his or her sole and separate property acquired during the marriage by gift, bequest, devise, or descent, . . . ." D.C.Code § 16-910(a). Thus, the statute expressly exempts from distribution between the parties property that is acquired during the marriage by gift, bequest, devise, or descent. Hemily v. Hemily, 403 A.2d 1139, 1142 (D.C. 1979). We have stated that

[t]he logic of exempting these categories of property from a trial judge's broad authority to apportion is that when property is acquired by one spouse in one of these ways, there normally would be little basis for an objectively reasonable expectation of an interest in that property on the part of the other spouse.

Id. at 1142-43 (footnote omitted). The term "descent" is not defined in the statute governing distribution of property on dissolution of a marriage. Therefore, we examine the statutes governing survival and wrongful death actions as they pertain to this case to determine how the proceeds of ...

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