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In re Estate of Reap

April 01, 1999

IN RE ESTATE OF NORAH BOYLE REAP, MARY B. REAP, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN R. REAP, III, APPELLANT,
v.
J. KEVIN MALLOY, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANASTATIA MCG. MALLOY, APPELLEE.



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

The opinion of the court was delivered by: Farrell, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Wendell P. Gardner, Jr., Trial Judge)

Argued June 4, 199

Opinion for the court by Associate Judge Farrell.

Dissenting opinion by Chief Judge Wagner at p. ______.

This appeal arises from a dispute over whether the decedent, Norah Boyle Reap, died intestate because her will, executed during her marriage to John R. Reap, III, was impliedly revoked by their subsequent divorce and property arrangement, as well as his remarriage. The trial Judge granted summary judgment to Norah's aunt (and challenger of the will), Anastatia McG. Malloy, and denied summary judgment to Mr. Reap. *fn1 Mary B. Reap, personal representative of John R. Reap, III, appeals these decisions. We reverse the grant of summary judgment and remand for trial on the issue of whether the Reaps had a property settlement agreement at the time of their divorce.

I.

The Reaps were married on January 17, 1970, separated in the summer of 1982, and divorced on May 3, 1991. John's complaint for divorce asserted in part that "[t]here are no property rights to be adjudicated between the parties." Norah's answer agreed, and they executed a praecipe that the divorce was "uncontested as to all matters." The divorce judgment echoed the above-quoted language from John's complaint. John remarried before Norah died.

Norah had executed a will in 1976 naming John and two others as beneficiaries. She never modified the will. In December 1992, John was appointed the personal representative of Norah's estate, and her will was admitted into probate. Anastatia, Norah's closest living relative, filed a complaint challenging the will, alleging that it had been revoked by implication of law pursuant to D.C. Code § 18-109 (1997) when the Reaps divorced in 1991.

John and Anastatia filed cross motions for summary judgment. Although they agreed about most material facts, including that the Reaps had not entered into a written property settlement agreement upon their divorce, they disputed whether the couple had reached an oral agreement. As evidence, Anastatia pointed to John's representation to the court that no property rights had to be adjudicated, and to a 1993 claim that John had filed against Norah's estate for waste, in which he referred inter alia to the parties' "understanding that [Norah] would reside in the premises and maintain the property." Attached to John's motion, by contrast, was his affidavit explaining the Reaps' amicable and flexible relationship during their nine-year separation and later divorce. *fn2 He asserted that, although the Reaps had lived apart starting in 1982, their lives remained intertwined; consequently, they never "finally settle[d] [their] respective rights in [their] marital property" but instead continued to share some property and individually use other jointly-held property. "At the time of our divorce," John concluded, "we agreed not to divide our marital property. We had been separated for nine years and comfortably shared our property with each other. Because we did not want to determine which property would belong to Norah or to me individually, we did not enter into any property settlement agreement or ask the court to divide our property."

The trial Judge granted Anastatia's summary judgment motion on three grounds. First, while admitting that the Reaps had not contested their property rights in the divorce proceeding, he found that the divorce complaint and answer stating that there were no property rights to be adjudicated "evidence[d] such a[] [property] agreement." This inference also was based on D.C. Code ยง 16-910 (1997), which the Judge read to mandate court assignment and distribution of all marital property unless there is a property settlement agreement. He reasoned that because the divorce Judge was required to distribute any unassigned marital property, and had not done so, the Reaps must have reached an agreement. Second, the Judge found that, in view of John's earlier representation to the court that there were no property rights to be adjudicated, John was collaterally estopped from asserting that the property rights had not been settled. Finally, even if the first two grounds failed, the Judge ruled that John's ...


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