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Bansda v. Wheeler

May 13, 2010

MARGO BANSDA, APPELLANT,
v.
JEFFREY WHEELER, APPELLEE.
IN RE OLEKANMA EKEKWE, APPELLANT.



Appeals from the Superior Court of the District of Columbia (DRB1541-06) (Hon. Jerry S. Byrd, Trial Judge)

The opinion of the court was delivered by: Ferren, Senior Judge

Submitted March 3, 2010

Before FERREN, STEADMAN, and KING, Senior Judges.

In this consolidated appeal, Margo Bansda appeals from a judgment of absolute divorce from appellee, Jeffrey Wheeler, issued on November 5, 2007, ordering property distributions and declining separate maintenance pursuant, respectively, to D.C. Code §§ 16-910 (a) & (b), -913 (d) (2001). Bansda also appeals from the November 5, 2007 order holding her in contempt for violating the court's June 5, 2007 order requiring her to pay Wheeler $1,300 in rent for each month that she remained in Wheeler's house. Appellant Olekanma Ekekwe, Bansda's former attorney, appeals the trial court's March 30, 2009 denial of her February 21, 2008 motion for reconsideration of the court's January 18, 2008 order imposing sanctions against her in the form of $1,360 in attorney's fees payable to Wheeler for failing to comply with discovery deadlines. We affirm the trial court's contempt order against Bansda, as well as the final divorce order declining separate maintenance for Bansda and dividing and distributing the real and personal property of the parties. We also affirm the denial of Ekekwe's motion for reconsideration of the court-ordered sanctions.

I.

The appellant, Bansda, a citizen of South Africa, and the appellee, Wheeler, a citizen of the United States, were lawfully married in the District of Columbia on April 28, 2001. Beginning in 1998 or 1999, while Bansda and Wheeler were living in the Netherlands, they began to discuss the possibility of marriage and starting a family. Wheeler had moved to the Netherlands in the fall of 1999 to be with Bansda, and while he was there the couple registered as domestic partners with the Immigration Department and lived together and shared expenses.

The couple eventually left the Netherlands and relocated to Virginia for several months. They became engaged and, on January 31, 2001, began living together in the District of Columbia in a house at 119 Rittenhouse Street, N.W., that Wheeler had purchased in December 2000. Although Bansda helped select the property and the couple discussed purchasing the house together, ultimately Wheeler made the down payment on the home, made all of the mortgage payments, and was the only person whose name was on the title. The couple lived on Rittenhouse until February 2002, when they moved to Zambia for Wheeler's employment, living there until 2004 when they moved to South Africa.

The parties separated around July 1, 2005, while living in Johannesburg, South Africa. Wheeler moved back to the District of Columbia with the intention of terminating the marriage. Bansda remained in South Africa but continued to talk with Wheeler about the possibility of reconciling. Wheeler, however, refused. Sometime in November 2005 Bansda agreed to end the relationship but indicated that she wanted to do so in person. She returned to the Rittenhouse property and refused to leave. Because of her refusal, Wheeler moved out of Rittenhouse. While Bansda was living there, Wheeler continued to make full mortgage payments without being able to rent out the house to help with the payments.

On May 4, 2006, Wheeler filed a complaint for divorce on the ground that the parties had been mutually and voluntarily living separate and apart for six months.*fn1 In her counter-complaint, Bansda alleged that as a result of their relationship in the Netherlands, the parties had entered into the equivalent of a common law marriage before their formal marriage ceremony in April 2001. She also alleged that she owned an interest in Rittenhouse because, although Wheeler had persuaded her not to put her name on the title, she understood that she was to be co-owner of the house. She requested use and possession of the property, among other things.

Trial began on December 13, 2006 and continued intermittently until September 17, 2007. In the meantime, in response to a motion by Wheeler, the trial court ordered Bansda on June 5, 2007 either to vacate Rittenhouse or to begin paying Wheeler $1,300 per month for each month that she lived there -- an order with which she never complied before the court, on November 5, 2007, issued its final divorce decree and written rulings on a number of outstanding motions, including its ruling holding Bansda in contempt for failure to vacate or pay rent.

II.

Wheeler argues that Bansda's appeal is untimely and that this court therefore lacks jurisdiction to proceed on the merits. On November 14, 2007, nine days after the trial court rendered its November 5 judgment, Bansda filed "Defendant's Request for Reconsideration" pursuant to Super. Ct. Dom. Rel. R. 7, 60, and 62. On January 18, 2008, the trial court denied the motion but did not determine whether it fit under Rule 59 or Rule 60.

Wheeler argues that Bansda's notice of appeal, filed on February 7, 2008, was late-filed "ninety-four days after the entry of judgment," thus failing to comply with D.C. App. R. 4 (a)(1), which requires a notice of appeal to be filed in a civil case within thirty days of the judgment date. Wheeler acknowledges that certain types of interim orders will toll the time for filing a notice of appeal, but he argues that Bansda's motion does not qualify. Contrary to Wheeler's contention, however, we conclude that Bansda's motion tolled the time to appeal pursuant to D.C. App. R. 4 (a)(4)(A).*fn2

We note, first, that Bansda's caption for the motion, a "request for reconsideration," is not among those specified in the Superior Court's Domestic Relations rules. Nonetheless, "[t]he nature of a motion is determined by the relief sought, not by its label or caption." Wallace v. Warehouse Employees Union No. 730, 482 A.2d 801, 804 (D.C. 1984). Bansda sought relief from the judgment by alleging both mistakes of fact and an erroneous application of law. As to facts, she argued that the trial court had erred in computing her net assets by referencing dollars rather than rands and by including in the calculus retirement assets to which she did not yet have access. Claiming an error of law, she asserted that, when making its property distribution and alimony determinations, the court had erroneously failed to take into adequate consideration the financial hardship imposed on her by her attempts to start a new business, the inconsistent nature of her employment, and her difficulty adjusting to life in the United States.

Because Bansda asserted mistakes both of law and of fact, her motion could properly fall under both Rules 59 and 60, respectively. See, e.g., Amatangelo v. Schultz, 870 A.2d 548, 553 (D.C. 2005) ("Generally speaking, if the motion seeks reconsideration of an order because of a mistake of fact or a change in circumstances, it is properly considered under Rule 60 (b), 'but if the movant is seeking relief from the adverse consequences of the original order on the basis of error of law, the motion is properly considered under Rule 59 (e).'") (quoting Wallace, 482 A.2d at 804). Moreover, Rule 59 motions and Rule 60 (b) motions filed within ten days of the judgment operate to toll the time for filing a notice of appeal. D.C. App. R. 4 (a)(4)(A)(iii), (v); see also Nichols v. First Union Nat'l Bank, 905 A.2d 268, 271-72 (D.C. 2006). Because Bansda's motion contained elements that qualify under these rules, that timely-filed motion served to toll the appeal period until the trial court ruled on it. And because Bansda filed her appeal on February 7, 2008, within thirty days of the court's January 18, 2008 order disposing of her motion, her appeal was timely. See D.C. App. R. 4 (a)(4)(A).

III.

The trial court ruled that (1) Bansda was in contempt of its June 5, 2007 order to pay Wheeler $1,300 per month in rent for living at Rittenhouse; (2) Bansda and her former counsel, Ekekwe, were liable to Wheeler for $1, 460*fn3 in attorney's fees for failure to comply with Wheeler's discovery requests; (3) Bansda was not entitled to exclusive use and possession of Rittenhouse or to an equitable interest in the property; (4) there should be no equitable distribution of Wheeler's assets to Bansda; and (5) Wheeler was to receive the dining room table, chairs and matching bench, and gardening tools, whereas the parties' personal property located in a container in South Africa would be divided by a special master.

On appeal, Bansda contends that the trial court erred by (1) ruling that the parties did not have a common law marriage; (2) failing to conduct a detailed evaluation of all finances before issuing its final decision; (3) entering premature injunctive relief to Wheeler in the form of rental payments; (4) holding Bansda in contempt for failing to make timely rental payments to Wheeler; (5) failing to hold a pretrial conference; and (6) adopting the Findings of Fact and Conclusions of Law submitted by Wheeler. Bansda also contends that the trial judge should have recused himself because he knew her former counsel outside the four corners of the courtroom.

Appellant Ekekwe appeals the court's imposition of sanctions against her for failing to comply with opposing ...


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