The opinion of the court was delivered by: Senior Judge Kern.
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. George W. Mitchell, Trial Judge)
Before Terry and Farrell, Associate Judges, and Kern, Senior Judge.
Concurring opinion by Associate Judge Farrell at p. __.
Kern, Senior Judge: The parties to this appeal were married in September 1971, and appellant wife left the marital abode in October 1997. She filed a complaint for spousal support in December 1997, pursuant to D.C. Code § 16-916 (a) (1997), which provides in pertinent part that "[w]henever a husband . . . shall fail or refuse to maintain his . . . needy spouse, . . . although able to do so, the court, upon proper application and upon a showing of genuine need of a spouse, may decree, pendente lite and permanently, that such husband . . . shall pay reasonable sums periodically for the support of such needy spouse . . . [and] suit money, including counsel fees, pendente lite and permanently, to enable plaintiff to conduct the case."
The trial court, after hearing testimony from appellant wife and other witnesses (but not appellee husband who chose not to testify) and considering various financial statements and other documents, denied appellant wife "spousal support and maintenance" from appellee husband, and determined that each party "shall . . . be responsible for his or her own attorney's fees." We reverse.
The conscientious trial court, in the Conclusions of Law contained in its Judgment, cited Tibbs v. Tibbs, 223 A.2d 279, 279 (D.C. 1966) for the "primary factors" that it must consider in determining whether to award maintenance to the wife and the amount of any such award.
These primary factors are:
"the duration of the marriage, "the ages and the health of the parties, "the wife's contributions to family support and property ownership, "the needs of the wife and the husband's ability to contribute thereto, and "the interest of society generally in preventing the wife from becoming a public charge." Id.
The record concerning such factors is:
"that 26 years had elapsed between the marriage and the separation, during which time the trial court found appellant wife "was a good and dutiful wife . . . faithful in her marital duties"; "that appellant wife (who had not been previously married) was 48 and appellee husband (who had a prior marriage and five grown children) was 72; "that appellant wife at the time of the separation suffered from allergies that contact with certain fabrics exacerbated and was seeing a psychotherapist for emotional distress, and appellee husband was suffering from ulcerated colitis caused by undue tension; "that the parties' marital home was valued at more than half a million dollars, they had three vehicles -- two Rolls-Royce autos and an Isuzu Trooper truck -- and owned and operated as partners a clothing boutique-type shop in Georgetown;*fn1 "that appellant wife had a Bachelor's Degree (having majored in Dance and Spanish) and had sewing skills which she used in the operation of the parties' shop, and appellee husband was a successful practicing physician; "that appellant wife had over the years of the marriage maintained the marital home for the use and enjoyment of the parties, had served as a hostess on all social occasions, had worked at appellee husband's medical office, and was working at their clothing shop doing fine seamstress work at the time of the separation; "that after appellant wife left the marital home she rented a room in a private home, paying $750 rent each month, and attempted to continue to work at the boutique, but this engendered disputes between the parties that caused her to stop working at the shop; "that appellee husband in the early months of their separation paid her $1000 a month but then reduced his payment to $500; "that appellee husband received in 1997 from a so-called pension trust fund arising out of his medical practice more than $400,000, and he continued to live in the marital home; and "that the parties from the time of the separation until the present have engaged in a significant amount of litigation (obviously requiring representation by counsel), including an action by the husband to recover damages from the wife for allegedly refusing to work at their boutique shop; the resolution in court of disputes arising over discovery; and an action by the wife for alimony pendente lite pursuant to D.C. Code § 16-911 (1997), presumably in connection with her action for divorce after one year's separation." See D.C. Code § 16-904 (1997).*fn2
The able trial Judge concluded in his Judgment, denying any spousal support for appellant and directing each party to pay its own counsel fees, that appellant wife "will not become a public charge; she is an educated woman and has established herself in the fashion world." The court further stated: "[The wife] appears to be in good health. [She] possesses employable qualities which would enable her in seeking gainful employment. In addition, she has business acumen as well as being a well-respected seamstress."
These findings and Conclusions are without support in the evidence. There is no evidence to show that appellant wife had "established herself in the fashion world." Rather, the record reflects that the parties had operated a boutique shop that turned no profits and nothing demonstrated that she had "business acumen." Indeed, the theme of appellee husband over the years was that she had absolutely no business sense. While there was evidence that she ...