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Bernard v. Bernard

June 03, 1999

LAWRENCE J. BERNARD, JR., APPELLANT,
v.
NANCY C. BERNARD, APPELLEE.



Before Steadman and Farrell, Associate Judges, and Morrison, Associate Judge, Superior Court of the District of Columbia. *fn*

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. Gregory E. Mize, Trial Judge)

Argued April 20, 199

Mr. Bernard appeals from the trial court's judgment dividing marital property and debts and awarding alimony, arguing that the trial court failed to consider all of the relevant factors required by D.C. Code § 16-910 (b) (1997) and our case law. *fn1 Although in most respects we find no fault with the trial Judge's exercise of discretion, see Pimble v. Pimble, 521 A.2d 1173, 1174 (D.C. 1987) ("The trial court has broad discretion [in distributing marital property]."); Leftwich v. Leftwich, 442 A.2d 139, 142 (D.C. 1982) ("The award of alimony is a matter committed to the sound discretion of the trial court . . . ."), one factor unmentioned in the Judge's opinion -- and, to a lesser degree, a second -- raises enough concern about the soundness of the ultimate Disposition that we must vacate and remand for explicit consideration of it. Our recital of the evidence is largely confined to those two factors.

I.

The Bernards were married on October 22, 1980. They subsequently held title to a home in the District as tenants by the entireties *fn2 and had two children. From the beginning, according to Mrs. Bernard, "money matters [were] a concern" in the marriage particularly because, as a self-employed lawyer, Mr. Bernard never had a steady income. *fn3 Mr. Bernard regularly owed federal income taxes when the couple filed their annual joint returns. His inability to pay their 1992 taxes was the final straw causing Mrs. Bernard to elect to file separately starting in the 1993 tax year, and to move out with the children at the end of the 1993-1994 school year. According to Mr. Bernard, he did not want them to leave but there was "nothing [he] could do" about it. Mrs. Bernard, who viewed her husband's fortunes as "a sinking ship," claimed that she still "wanted to work on things," but she moved with the children to Pennsylvania and took up residence in an unoccupied home owned by her mother. On appeal, Mrs. Bernard concedes that Mr. Bernard raised the issue of "desertion" at trial and that she "did not argue that a finding of desertion was not justified."

In Pennsylvania, Mrs. Bernard began working as a legal secretary. Mr. Bernard continued to work as a lawyer, but owing to a change in FCC litigation practice (his specialty) which he predicted would decrease his "practice [to] . . . about 30 percent of what it was before," he claimed he would "have to find something else to do." *fn4 At trial, Mr. Bernard contended that he owed individual tax obligations totaling some $50,000 incurred between 1993 and 1995. His financial statement submitted to the trial court attests to that approximate amount. Mrs. Bernard concedes on appeal that she did not dispute either the fact of his tax obligation or the amount. At the time of their divorce, the Bernards were subject to an IRS levy for unpaid 1992 taxes in the amount of $15,453. Their marital credit card debt totaled $30,599.

The trial Judge awarded monthly alimony of $264 to Mrs. Bernard and ordered Mr. Bernard to pay 92% of both the 1992 tax liability and the credit card debt. He awarded sole ownership of the home to Mr. Bernard, but required him to pay one half of the equity in the home ($18,000) to Mrs. Bernard.

II.

To arrive at a distribution of marital property "that is equitable, just and reasonable," D.C. Code § 16-910 (b) (1997), the trial Judge must "consider[ ] all relevant factors including, but not limited to" those enumerated in that section. Id. *fn5 "[R]elevan[ce]," of course, is a function of the particular evidence before the trial court and the issues arising therefrom, see Bowser, supra note , 515 A.2d at 1130 (the relevant factors will "vary in each case"), but subject to this limitation, the trial Judge must engage in a "conscientious weighing of all relevant factors, statutory or otherwise, before reaching a Conclusion about the proper distribution of property." Burwell v. Burwell, 700 A.2d 219, 225 (D.C. 1997).

A.

Mr. Bernard argues that the trial Judge failed to consider his individual tax obligation of some $50,000 in finding him liable for 92% of the marital credit card and joint tax debt and giving him only 50% of the equity in the home. At trial, he testified to his tax obligation and pointed to his financial statement confirming that amount. *fn6 As we have said, ...


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