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Cerovic v. Stojkov

Court of Appeals of Columbia District

March 17, 2016


         Argued December 10, 2014.

          Appeal from the Superior Court of the District of Columbia. (DRB-3624-11). (Hon. Jennifer A. DiToro, Trial Judge).

         Edward E. Schwab for appellant.

         Christopher M. Locey, with whom Michael A. Troy was on the brief, for appellee.

         Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge. Opinion by Senior Judge Vanessa Ruiz.


         Vanessa Ruiz, Senior Judge:

         Appellant, Ivana Cerovic, and appellee, Dusko J. Stojkov, were divorced by Decree of Absolute Divorce entered by the Superior Court of the District of Columbia. Cerovic argues on appeal that when making an equitable distribution of property upon dissolution of the marriage, the trial court erred (1) in its determination that the parties had not been married before their wedding ceremony in 2010, by entering into either a " non-marital cohabitation" under Serbian law in 2003 or a common law marriage when they later relocated to the District of Columbia; and (2) in its inclusion of attorney's fees incurred in connection with the divorce proceedings as marital debt. Cerovic also argues that the trial court abused discretion in its equitable distribution of property, denial of her requests for alimony and attorney's fees, and in its imposition of a sanction for failure to present her argument under foreign law in a timely manner. We agree that the trial court committed legal error in its consideration of Cerovic's claim that the parties had been married before their wedding ceremony and in its inclusion of attorney's fees incurred in the divorce proceedings as marital debt. These and other errors require that we remand the case for further proceedings consistent with this opinion that could affect the distribution of property, alimony, the award of attorney's fees, and the sanction.

         I. Facts

         A. The Parties' Courtship and Marriage

         Cerovic and Stojkov are both native Serbians. Stojkov became a naturalized American citizen in 2006 and Cerovic is a Serbian citizen who, at the time of trial, had a pending application for United States citizenship based on her marriage to Stojkov. She has a bachelor's degree and a master's degree in Business Administration. He is a licensed attorney in the United States.

         The parties met in Serbia in February or March of 2003. Although the exact date of their first meeting is in dispute, the parties agree that they first spent a significant amount of time together when they met at a restaurant opening they had attended separately; they met there again on April 15, 2003. According to Cerovic, she and Stojkov first had sexual relations on April 17, 2003, at which time they agreed to live together as husband and wife. Stojkov concurred that they quickly entered into a romantic and sexual relationship, but denied that they had an understanding about living together as a married couple. The trial court credited Stojkov's testimony, concluding that Cerovic's claim was " not credible" because she and Stojkov had at that time been alone together only twice. The trial court noted that the parties did not " merge any finances, bills, bank accounts or utilities," and that Cerovic did not have a key to Stojkov's apartment or contribute to his rent. According to Stojkov's brother, whose testimony was credited by the trial court, Cerovic and Stojkov would spend many nights at each other's residences, but each kept his or her own apartment, furnishings, and possessions. Cerovic's grandmother testified that the parties spent all their time together from when they first met in 2003 and that Cerovic moved into Stojkov's apartment, although they would also sometimes spend the night in her apartment. Cerovic told her grandparents that she loved Stojkov and wanted to marry him. To allay the grandparents' concern about the future of their only grandchild, the grandmother testified, Stojkov reassured them that " Ivana is now my wife and as my wife she will be perfectly taken care of." [1] The trial court concluded, as a factual matter, that the parties did not " cohabit" while they resided in Serbia.[2]

         In May of 2003, while on vacation in Portugal, the parties agreed to become engaged before Stojkov was scheduled to leave for the United States. They announced their engagement at a gathering of family and friends in Serbia in June of 2003, at which time Stojkov gave Cerovic a diamond engagement ring. Stojkov's father also presented Cerovic with a gift, according to Serbian custom. The trial court found, as a factual matter, that the parties became engaged in June of 2003.

         In early July 2003 Stojkov returned, alone, to the United States for work. At the time he was employed full-time as an attorney at Ernst & Young and owned an apartment at 2320 Wisconsin Avenue, Northwest, in the District of Columbia, which he had purchased in December of 2001. Cerovic was employed full-time in Serbia, but she took a leave of absence from her employment and followed Stojkov to the United States in August 2003 on a tourist visa. The two lived together in the Wisconsin Avenue apartment for the duration of Cerovic's stay in the United States, until she had to return to Serbia in July of the following year when her tourist visa expired. She cooked meals and cleaned the apartment. As she was unable to be employed on her tourist visa, she volunteered for the Serbian Unity Congress. She also supervised renovations to the Wisconsin Avenue apartment, for which Stojkov paid.

         Cerovic applied for an H1-B visa (for skilled workers) to be eligible for employment in the United States. Her application was denied in September of 2004, and she appealed. In October of 2004, three months after Cerovic had returned to Serbia and was waiting for her visa situation to be resolved, Stojkov executed a contract to purchase a house at 3507 T Street, Northwest, on which he closed in November of 2004. Stojkov testified that he did not consult Cerovic about the purchase and did not list her on the title or mortgage, but said that he purchased the house with the expectation that he and Cerovic would live there together. Cerovic testified that she communicated with Stojkov " all the time" while she was in Serbia and was initially against purchasing the T Street house. Stojkov sold the Wisconsin Avenue apartment in December 2004. Cerovic did not contribute funds to purchase the Wisconsin Avenue apartment, the T Street house, or an apartment that Stojkov later purchased in Novi Sad, Serbia in August of 2006.

         Cerovic's visa application was granted in January of 2005, and she promptly returned to the United States where she joined the Serbian Unity Congress as an employee. The T Street house Stojkov had purchased for them to live in was undergoing renovations, so the parties resided at a friend's apartment from February to July of 2005. They moved into the T Street house together in July of 2005 and it was their home until their separation in November of 2010, although Stojkov lived in Vienna for work from the end of 2007 until mid-2009. Cerovic testified that she remained in the United States so as not to jeopardize her visa status and that she and Stojkov visited each other regularly during that time. Cerovic testified that she purchased food for the household, and paid various household expenses and the insurance for Stojkov's vehicle. Additional renovations to the T Street house were made in 2006 and 2010; Cerovic coordinated the selection of the contractors for the project, which Stojkov financed.

         The trial court was presented with evidence that the parties considered themselves to be married during the years they lived together in the District of Columbia (2003-04 and 2005-10). A menu from a restaurant (The Inn at Little Washington in Virginia) dated April 15, 2005, wished the parties " Happy Anniversary." The trial court credited Stojkov's testimony, however, that he misled the restaurant by lying about the anniversary in order to get a table on short notice, and noted that there was no evidence of other anniversary celebrations or cards during the seven-year period Cerovic claimed they had deemed themselves to be married. Similarly, in 2008, while Stojkov was working in Vienna, he sent an email to his bank saying he had neglected to add his " wife, Ivana Cerovic" to his new bank account. The trial court again credited Stojkov's testimony that he also lied to the bank about Cerovic being his wife, this time so that he could add her to his account remotely, while he was out of the country. During the same period, Cerovic wrote several emails to Stojkov in which she referred to herself as his wife or that she signed " Wife" or " Wifey." However, there is evidence of only a single response from Stojkov to the emails, in which he referred to Cerovic as " my happiness," rather than his wife. Cerovic's childhood friend testified that Stojkov addressed Cerovic using the Serbian word " ž ena/o," which means both " wife" and " woman." In a letter to his father, Stojkov referred to Cerovic as " snajki," which can mean both " daughter-in-law" and " lass" or " girl."

         There was also evidence that the parties did not consider themselves to be married. Friends testified that they did not hold themselves out as a married couple; a neighbor testified that nothing either of them said or did indicated that they were married as opposed to living together in a romantic relationship; and a friend testified that they never referred to each other as " husband" or " wife" and did not wear wedding rings. The trial court took note that Cerovic and Stojkov did not maintain a joint bank account[3] or a joint budget, did not assume a common name, owned real property separately, did not have joint debts, and paid bills in their own names without contribution from the other. Additionally, while Stojkov was employed with Patton Boggs, LLP, from 2004 to 2008, he identified himself as single, without any dependents, on personnel records and yearly health insurance enrollment forms, and Stojkov listed Cerovic as his " fiancé e" on an insurance beneficiary designation form. Stojkov filed his federal income tax returns as single, unmarried in 2004, and from 2006 through 2009; whereas in 2010, the year of the ceremonial marriage, he filed as " married filing separately." Cerovic also filed federal tax returns as single from 2005-2008.

         Cerovic testified that Stojkov suggested that they should get married in February or March of 2010. According to Cerovic, the wedding was a " confirmation" of their marital status, and was undertaken to allay any question from United States immigration authorities about the validity of their Serbian union. Stojkov acknowledged that he was prompted to suggest marriage at that time because Cerovic's visa was to expire later in 2010, and she needed to apply for a green card based on their marriage. He testified, however, that even though the timing of his proposal was related in part to Cerovic's immigration status, he was motivated by love and affection. He wished to " patch up" and " rekindle" their relationship which had deteriorated, including a physical altercation at the end of 2009, and hoped that marriage would be " an expression of love and commitment." They were married in a ceremony held in Las Vegas on April 15, 2010. The court found that they spent " many thousands of dollars" on Cerovic's wedding dress and shoes, wedding bands, travel, hotel, photographs and other expenses incident to their wedding ceremony.[4]

         The parties' relationship did not improve and they separated in November 2010, seven months after the wedding in Las Vegas. On October 3, 2011, Cerovic filed a petition for a civil protection order against Stojkov; Stojkov filed his own petition on November 3, 2011. After a temporary protection order was issued, both cases were subsequently dismissed with prejudice, at the request of the parties, on July 6, 2012.

         B. The Divorce Proceedings

         On November 21, 2011, Stojkov filed a complaint for divorce, based on a one-year voluntary separation, that commenced the contentious litigation that resulted in the orders at issue in this appeal. His complaint asserted that he and Cerovic were married on April 15, 2010 (the wedding in Las Vegas), and that they separated later that same year, on November 18. In her answer, Cerovic claimed that she and Stojkov had established a common law marriage before the formal wedding ceremony, beginning on April 15, 2003, while they were in Serbia, and that they lived in the District of Columbia as husband and wife from July 2003.[5] Stojkov disagreed, and filed a motion in limine for a ruling that there had been no marriage before the 2010 wedding ceremony. Stojkov argued that there could have been no " common law marriage" while they were in Serbia because Serbian law would govern and Serbia is a civil law country. Cerovic opposed the motion. The trial court bifurcated the proceedings, taking evidence first as to whether the parties had established a common law marriage, to be followed by evidence pertaining to the division of marital property. On April 4, 2012, two days before the first scheduled trial date in the first phase of the proceedings, Cerovic submitted a memorandum of law in which she argued that she and Stojkov had established a " non-marital cohabitation" under Serbian law, beginning on April 15, 2003. When Stojkov objected to the lack of notice and late introduction of Serbian law into the proceedings, the trial court offered to continue the trial and, after Stojkov's counsel declined the continuance, the trial proceeded as scheduled. The trial court awarded attorney's fees to Stojkov as a sanction for the lack of timely notice in the amount he owed his attorney for the first day of trial.

         After the first phase of the proceedings, the trial court issued an order on June 3, 2013, in which it concluded that property acquired during a Serbian non-marital cohabitation could not be distributed as marital property under D.C. Code § 16-910 (2012 Repl.) because the statute provides for property distribution following the dissolution of a " marriage" and a Serbian non-marital cohabitation is not a marriage. Thus, any property acquired during such a relationship would be the " sole and separate property" of the person who acquired it. The trial court also determined that even if a non-marital cohabitation were considered a marriage for purposes of § 16-910, Cerovic had not established, by clear and convincing evidence, that she and Stojkov had such a relationship under Serbian law or a common law marriage in the District of Columbia before their ceremonial marriage in 2010. The trial then proceeded on the premise that the only valid marital relationship was the one formalized by the wedding ceremony on April 15, 2010.

         After the second phase of the proceedings,[6] the trial court issued a second order, dated December 23, 2013, that distributed the marital property and debts pursuant to D.C. Code § 16-910, based on the 2010 ceremonial marriage. As part of the calculation, the trial court classified attorney's fees incurred by the parties in the divorce proceedings as marital debt, to be distributed equitably between the parties. The court allocated to Cerovic one third of Stojkov's marital debt of $105,897.70 (which included $33,701 in outstanding debt for fees owed to his attorneys), all of Cerovic's outstanding debt to her attorneys ($28,368.92), and $10,000 she had charged on Stojkov's credit card to pay her attorney's fees.[7] Overall, Cerovic was allocated $45,632.56 in debt, or roughly half of what the court considered to be the parties' marital debt (i.e., including both parties' outstanding debt to their lawyers). The trial court denied Cerovic's requests for alimony and attorney's fees. The trial court concluded that an alimony award to Cerovic would not be " just and proper" because she was awarded temporary support in the form of rehabilitative alimony and continuing use of the T Street house throughout the two-year pendency of the litigation; she has the ability to fully support herself; neither party has physical or mental health issues; and, although the employment history of both parties has been " erratic," Cerovic's employment history was more stable than Stojkov's. The trial court concluded that it would be " inequitable" to award attorney's fees to Cerovic because the litigation, though lengthy, had not been complicated, with the exception of matters concerning choice of law and Serbian law. The trial court considered that it had already taken the " relevant equities" into account in assigning part of Stojkov's debt related to attorney's fees to Cerovic in its equitable distribution of the marital property. Cerovic timely appealed the trial court's orders of June 3, and December 23, 2013.

         II. Analysis

         A. Serbian Non-marital Cohabitation[8] and District of Columbia Common Law Marriage

         A central issue in the case was whether the parties had a legally recognized marriage before the wedding ceremony in April 2010, which took place only seven months before they separated. The date of the parties' marriage is significant in determining the property and debt that is deemed marital and subject to distribution, see D.C. Code § 16-910 (b) (referring to property " acquired during the marriage" ); and in calculating the duration of the marriage, which is a factor to be considered in evaluating the equities of the distribution, see id. at (b)(1) (listing duration of marriage as a relevant factor), and the award of alimony, see § 16-913 (d)(4) (same, with respect to alimony).

         1. The Trial Court's Determination

         The trial court determined that the parties were not married before their wedding ceremony in 2010, after having found that (1) they did not have a non-marital cohabitation under Serbian law, and (2) they did not have a common law marriage during the time that they lived together in the District of Columbia. In making these determinations, the trial court imposed a burden on Cerovic, as the proponent of the earlier marriage, to prove her claim by clear and convincing evidence. The trial court also concluded that even if there had been a non-marital cohabitation under Serbian law, it was not a " marriage" for purposes of equitable distribution under D.C. Code § 16-910.

         2. Burden of Proof

         Cerovic contends that the trial court erred in concluding that she did not prove that the parties had established a marriage (under Serbian or District of Columbia law) prior to the 2010 wedding ceremony in Las Vegas because the trial court applied an incorrect standard (clear and convincing evidence) rather than preponderance of the evidence. We agree and conclude that because of that legal error the trial court's finding that the parties did not enter into a marriage in Serbia or in the District of Columbia prior to their wedding in 2010 cannot be sustained.

         It is well established that a party claiming that a common law marriage exists must prove the existence of that common law marriage by a preponderance of the evidence. See Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993). It is similarly settled that where two marriages are at issue, there is a presumption that the later marriage is the valid one. See Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977). This presumption is " one of the strongest presumptions known to the law" and is among those that " represent a strong social policy in favor of reaching a particular result in the close or doubtful case." Mayo v. Ford, 184 A.2d 38, 41 (D.C. 1962). Although the presumption is not conclusive, it can be rebutted only by '" strong, distinct, satisfactory, and conclusive' evidence." Id. (quoting Harsley v. United States, 187 F.2d 213, 214, 88 U.S.App.D.C. 150 (D.C. Cir. 1951)). Therefore, even though generally speaking, a common law marriage may be proven by a preponderance of the evidence, we have stated that where an asserted common law marriage precedes another marriage, to overcome the presumption of the validity of the later marriage the proponent of the prior, common law marriage must prove its existence by " clear and convincing evidence." [9] Johnson, 372 A.2d at 994.

          It is not necessary, however, to apply that heightened evidentiary burden in every case where a prior common law marriage is asserted. For the reasons we now discuss, the requirement that the proponent of the first marriage must meet a clear and convincing evidence standard applies only in situations in which the proponent is attempting to prove that the common law marriage with one spouse precedes marriage with a different spouse, i.e., situations in which the parties to the asserted successive marriages are not the same.

         In Johnson, for example, the husband entered into a common law marriage with one woman and subsequently ceremonially married another woman. The court held that the validity of the earlier, common law marriage had to be proven by clear and convincing evidence to rebut the presumption that the later, ceremonial marriage was valid. 372 A.2d at 994. Conversely, in East v. East, 536 A.2d 1103, 1105 (D.C. 1988), where the existence of only one marriage -- a common law marriage -- was at issue, the court determined that the proponent's burden of proof is a preponderance of the evidence. The East court explained that a common law marriage need only be established by a preponderance of the evidence " [a]bsent a later marriage which triggers the presumption" that the later marriage is valid. Id. In East the court was not faced with asserted successive marriages and therefore did not need to address whether the standard of proof should differ depending on whether the successive marriages are between the same or different parties. In Bansda v. Wheeler, 995 A.2d 189, 198 (D.C. 2010), on the other hand, the trial court applied the preponderance of the evidence standard to proof of a common law marriage in the context of a case in which the same parties were subsequently ceremonially married. The trial court did not expressly consider ...

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