IVANA CEROVIC v. DUSKO J. STOJKOV , 2016 D.C. App. LEXIS 52 ( 2016 )

District of Columbia
Court of Appeals
No. 14-FM-100
IVANA CEROVIC, MAR 17 2016
Appellant,
v.
DRB-3624-11
DUSKO J. STOJKOV,
Appellee.
On Appeal from the Superior Court
of the District of Columbia
BEFORE: GLICKMAN and FISHER, Associate Judges; and RUIZ, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment of the trial court is
reversed, and the case is remanded so that the trial court may determine whether the
appellant proved, by a preponderance of the evidence, that she and the appellee entered
into a marriage under Serbian or District of Columbia law prior to 2010; recalculate the
parties’ marital debt, without any attorney’s fees incurred in connection with their
divorce; reconsider, in light of the recalculation of marital debt, and, possibly of marital
property (if it is determined that the parties had a prior marriage), the equitable
distribution between the parties under D.C. Code § 16-910, and, if appropriate, whether
alimony payments to the appellant are warranted under § 16-910 (d); consider whether
attorney’s fees should be awarded to either party under D.C. Code § 19-911; and
reconsider sanction.
For the Court:
Dated: March 17, 2016.
Opinion by Senior Judge Vanessa Ruiz.
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.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-FM-100 3/17/16
IVANA CEROVIC, APPELLANT,
V.
DUSKO J. STOJKOV, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DRB-3624-11)
(Hon. Jennifer A. DiToro, Trial Judge)
(Argued December 10, 2014 Decided March 17, 2016)
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.
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
2
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
3
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
4
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.
1
Cerovic’s grandmother, a retired Serbian lawyer, lived with her husband in
the same building as Cerovic. They were very close to Cerovic, the “only one”
they had, following the death of Cerovic’s mother twenty years earlier.
2
The trial court’s Order acknowledged that Cerovic’s grandmother testified,
but does not mention the substance of her testimony.
5
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
6
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
7
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
8
addressed Cerovic using the Serbian word “žena/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 account3 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 “fiancée” 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
3
As noted, however, Stojkov had asked the bank to add Cerovic to his
account.
9
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
4
The trial court inferred from the fact that Cerovic bought a wedding dress
that she had not considered herself to be already married at the time.
10
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
5
Cerovic also filed a counterclaim for unjust enrichment, which the trial
court dismissed. The counterclaim is not an issue on appeal.
11
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
12
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
6
There were a number of motions and rulings concerning discovery and
pendente lite alimony, but they are not contested on appeal.
13
$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
7
In total, Stojkov incurred $144,203 in attorney’s fees while Cerovic
incurred $50,640. She was unable to pay partway through the proceedings and her
counsel withdrew in June 2013, after the trial court’s first order. From that point
forward, Cerovic represented herself during the second phase of the proceedings,
including trial and several motions.
14
property. Cerovic timely appealed the trial court’s orders of June 3, and December
23, 2013.
II. Analysis
A. Serbian Non-marital Cohabitation8 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).
8
In Serbian the term is “vabranča zajednica.” The trial court and the parties
sometimes also refer, in English, to a Serbian “extramarital communion” or
“extramarital community.” We use the term “non-marital cohabitation” as that is
the term used in the translation of excerpts of the Serbian Constitution and Family
Act from the Serbian Embassy in Washington, D.C., presented by Cerovic to the
trial court.
15
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
16
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, 134 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 (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
17
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
9
Once an earlier marriage is proven, it renders invalid a later marriage. See
D.C. Code § 16-904 (d)(1) (2012 Repl.) (providing that a marriage contract may be
annulled “where such marriage was contracted while either of the parties thereto
had a former spouse living, unless the former marriage had been lawfully
dissolved”); D.C. Code § 46-401.01 (2012 Repl.) (declaring as “prohibited” and
“absolutely void ab initio”: “the marriage of any persons either of whom has been
previously married and where previous marriage has not been terminated by death
or a decree of divorce”); Lee v. Lee, 201 A.2d 873, 875 (D.C. 1964) (declaring
attempted ceremonial marriage void because earlier common law marriage had not
been dissolved).
18
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 what the standard should be in such circumstances or refer to the
presumption that the later marriage is valid. In affirming the trial court’s
determination that no common law marriage existed, this court simply restated that
the proponent must establish the existence of a common law marriage by a
preponderance of the evidence. Id.10
10
Of course, this court did not need to consider the applicability of a stricter
(continued . . .)
19
Considering these cases and the policies behind the presumption in favor of
the later marriage, we now make explicit that the proponent of a common law
marriage that precedes a ceremonial marriage between the same two individuals
need only establish the claim by a preponderance of the evidence. The evidentiary
preference in favor of the later marriage assumes different partners, as it “is
grounded in the presumption of innocence of the crime of bigamy, on the
presumption of the regularity of the acts of licensing and officiating officers, and in
the strong public policy of fostering respectability and protecting offspring from
the taint of illegitimacy.” Mayo, 184 A.2d at 41 (discussing the presumption in
ruling on the validity of two marriages between a man and two different women).
These concerns are not present in a situation in which a couple enters into a
common law marriage and subsequently celebrates an official wedding ceremony.
There is no bigamy where the same two individuals are involved and any children
of the couple are, under District of Columbia law, entitled to the same legal
protections whether the parents are married in a ceremony or have established a
__________________________________
(. . . continued)
standard because if the proponent’s evidence did not meet the preponderance
standard, it also did not meet the more exacting clear and convincing standard.
20
common law marriage.11 The regularity of the acts of licensing and officiating
officers is not called into question by the preexisting common law marriage of a
couple that decides to formalize their union in a ceremonial marriage. Nor is the
later marriage imperiled by the assertion of the earlier one, as is the case with
successive marriages with different spouses, see note 9 supra, because recognition
of an earlier marriage between the same spouses does not invalidate the later
marriage. Thus, in situations involving the same two individuals there is no
overriding need to alter the usual quantum of proof necessary to show that two
persons entered into a common law marriage: a preponderance of the evidence.
This is not to say that we retreat from the principle that claims of common
law marriage “should be closely scrutinized.” Bansda, 995 A.2d at 198 (quoting
Coates, 622 A.2d at 27). We reiterate that living together, by itself, is not a
common law marriage. See Coates, 622 A.2d at 27 (finding proof of cohabitation
alone insufficient). Being engaged, by itself, does not constitute a common law
marriage, but rather may signify an intention to marry. See Bansda, 935 A.2d at
199 (noting that “an intent to marry someday . . . tends to show the opposite [of a
common law marriage] by showing that the parties, for whatever reason, were not
11
Indeed, children of unwed parents also have the same legal protections.
See D.C. Code § 16-914 (2012 Repl.); Ysla v. Lopez, 684 A.2d 775, 779 (D.C.
1996).
21
ready to be legally married until they married” in a ceremony). On the other hand,
the fact that a couple decides to have a formal wedding ceremony is not conclusive
evidence that they did not consider themselves to be already married, as it “might
simply represent a desirable ‘upgrade’ in social status and official acceptability.”
John Crane, Inc. v. Puller, 899 A.2d 879, 919 (Md. 2006). “For a variety of
reasons, partners in common-law marriage may seek the additional advantages of
an official ceremonial imprimatur.” Id. What the proponent of a common law
marriage that precedes a ceremonial marriage must show is that there has been
“cohabitation, as husband and wife, following an express mutual agreement, which
must be in words of the present tense.” Id.
In this case, the trial court’s analysis was legally flawed because it applied a
burden of proof that was too high in the circumstances of this case. A trial court
errs as a matter of law if it makes a determination that applies an incorrect standard
of proof. See Russell v. CALL/D, LLC, 122 A.3d 860, 870 & n.16 (D.C. 2015)
(noting, in connection with argument that judge had held litigant to a heightened
standard of proof, that trial court erroneously exercises discretion if it applies
incorrect legal standard). As the weighing of evidence against the proper standard
is a function reserved to the trial court as finder of fact, see Ruffin v. Roberts, 89
A.3d 502, 506 (D.C. 2014) (when reviewing for abuse of discretion, appellate court
22
reviews legal determination of trial court de novo and factual findings for clear
error), a reviewing appellate court must remand the case to the trial court for
redetermination of the facts against the proper standard unless the record is clear
that the trial court either must, as a matter of law, or would, based on other findings
not tainted by the error, come to only one determination. See id. (observing that
although trial court applied erroneous standard of proof, a separate reason relied
upon by trial court sufficed to support ruling on an alternative basis). That is not
so in this case, where the trial court emphasized the high burden of clear and
convincing evidence that it was applying as being critical to supporting the
presumption in favor of the later marriage noting that it is “one of the strongest in
the law.”12 For the reasons we have discussed, however, that strong presumption is
not operative in this case where the claimed earlier marriage involves the same
couple as in the later marriage. Moreover, as the trial court recognized, there was
substantive testimony and documentary evidence presented at trial that supported
12
The trial court’s order observed that “[c]lear and convincing evidence is
most easily defined as the evidentiary standard that lies somewhere between
preponderance of the evidence and evidence probative beyond a reasonable doubt,
such evidence would produce in the mind of the finder of fact a firm belief or
conviction as to the facts sought to be established.” (quoting In re Estate of
Nethken v. Peerless Ins. Co., 978 A.2d 603, 607 (D.C. 2009).
23
the existence of an earlier marriage between the parties.13 Thus, we cannot, as a
reviewing court, dispense with a remand on the ground that the outcome is either
required as a matter of law or that the trial court’s determination on remand under
the appropriate standard is a foregone conclusion.
In addition, we note that the trial court’s order articulated the presumption as
being in favor of a ceremonial marriage, rather than the later marriage. But as
East makes clear, the rule is that “where there is more than one marriage, the more
recent one is valid,” 536 A.2d at 1105, and the presumption operates in favor of the
later marriage regardless of whether it is ceremonial or common law in nature. See
Mayo, 184 A.2d at 41 (noting that in case of “clash” between the presumption
favoring continuance of a valid ceremonial marriage and the presumption in favor
of the later marriage, “the first must give way to the second”). Perhaps the trial
court misspoke because it had in mind that in this case the second marriage was
ceremonial in nature, but we clarify the principle so that on remand there is no
confusion on the subject.
13
The trial court observed that neither party’s position on whether they
were already married when they celebrated the wedding ceremony in 2010 was
“unreasonable.” It also noted that it “did not find that the testimony of witnesses,
the evidence presented, or the record were frivolous.”
24
Accordingly, we remand the case with instructions to the trial court to
reconsider the evidence under the proper legal standard: whether Cerovic has
proved, by a preponderance of the evidence, that she and Stojkov were married
prior to their wedding ceremony in 2010 beginning when they were in Serbia in
2003 and/or when they subsequently lived together in the District of Columbia. If
the trial court determines that there was such a prior marriage, it must then
establish its duration and identify the property acquired and debts incurred that
should be considered marital for the purpose of making an equitable distribution of
property and reconsider the award of alimony.
3. Serbian Non-marital Cohabitation
Cerovic contends that in addition to imposing a too-high burden of proof, the
trial court erred in finding that the parties did not enter into a non-marital
cohabitation in Serbia, and in further concluding that, even if they did, it is not a
“marriage” for purposes of equitable distribution under D.C. Code § 16-910. The
existence of a marriage is determined by the law of the jurisdiction where the
marriage occurred. See Bansda, 995 A.2d at 198 (determining that there was no
domestic partnership in the Netherlands for purposes of § 16-910 where
registration required by Dutch law had not taken place). In this case, therefore, the
25
nature of the parties’ relationship when it began in Serbia is to be determined in
accordance with Serbian law. “The court may consider ‘any relevant material’ in
‘determining foreign law,’ and its ruling thereon is considered as a ruling on a
question of law.” See Oparaugo v. Watts, 884 A.2d 63, 71 (D.C. 2005) (quoting
Super. Ct. Civ. R. 44.1 and noting that the Rule puts to rest the idea that foreign
law is a question of fact.). Our review is therefore de novo.
Both parties presented arguments and evidence concerning non-marital
cohabitation under Serbian law.14 Both parties criticized the qualifications of the
authors of each other’s submissions. Although the trial court’s order of June 3,
2013, did not make explicit reference or cite to these materials, it borrowed
language from the submissions of both parties. The order listed the essential
elements of non-marital cohabitation under Serbian law as: (1) no barriers prevent
the marriage of the parties, (2) the parties “live together in the same way that
14
Cerovic submitted translations of excerpts from the Serbian Constitution
and Family Act and a chapter from a book (unidentified) entitled: “Legal Aspects
of Unmarried Cohabitation in Serbian Law — the Alternative Way for Man and
Woman to Live Together,” authored by Olga S. Jovic, Faculty of Law, Priština,
Serbia (“Jovic Chapter”). Stojkov presented an “Expert Witness Report” by
Serbian attorneys Joksovic, Stojanovic & Partners, dated June 5, 2012, that was
prepared for this litigation, “for the benefit of a judicial officer of the D.C. Superior
Court.” In the report, Serbian counsel represent that they are licensed to practice
law in Serbia, that they are “extremely familiar” with Serbian family law, and that
they “recognize an ethical responsibility that goes beyond the oath we have taken
herein, to be candid with the court.”
26
married couples do,” and (3) the duration of the cohabitation is “long lasting.”
These elements appear to be well founded in light of the definition of non-marital
cohabitation in Serbian law. See Serbian Family Act, Art. 4 (“Non marital
cohabitation is the sustained cohabitation of a man and a woman between whom
there are no marriage impediments (cohabiters).” (Cerovic’s translation) (“Extra
marital communion is a long lasting communion of a woman and a man between
whom there are no marital barriers (extramarital partners).” (Stojkov’s
translation). Moreover, these elements of the relationship are mentioned in the
Expert Witness Report submitted by Stojkov and the Jovic Chapter submitted by
Cerovic. On this record, we agree with the trial court’s delineation of the
fundamental elements of Serbian non-marital cohabitation.
a) The Trial Court’s Determination
Cerovic does not dispute that these are the essential elements of non-marital
cohabitation under Serbian law. Rather, she disagrees with the trial court’s
assessment of the evidentiary showing required. Specifically, she argues that the
trial court clearly erred in finding that she and Stojkov did not live “together in the
same way as married people do” or “cohabit” because there was undisputed
evidence of “cohabitation,” which Cerovic equates with sustained monogamous
27
sexual relations. She also argues that the trial court improperly took into account
financial and logistical arrangements that were not relevant under the
circumstances of the parties’ time together in Serbia and failed to take into account
factors that were relevant, such as the fact that the parties planned “for a future
together.”
As we have already determined, the trial court must reconsider the question
of the existence of a prior marriage between the parties under the proper
evidentiary standard, preponderance of the evidence. Without commenting on the
trial court’s eventual finding under that standard, we address the evidentiary
arguments Cerovic presents as they will be relevant on remand. First, concerning
the question of cohabitation, in light of the evidence of Serbian law presented to
the trial judge, we see no error in the trial court’s implicit determination that
evidence of a sexual relationship, even if exclusive, is not enough to prove that the
parties lived “together in the same way that married couples do.” Words used in a
statute are usually given their commonly understood meaning, and must be viewed
in context and interpreted consistent with the statutory purpose. See Tippett v.
Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (referring to statutory
interpretation as a “holistic endeavor” (quoting Washington Gas Light v. Public
Serv. Comm’n, 982 A.2d 691, 716 (D.C. 2009))). Cerovic has presented no
28
evidence that the Serbian word for “cohabitation” commonly means only sexual
relations or that such an interpretation would be consistent with the purpose of
Article 4 of the Serbian Family Act. To the contrary, the evidence submitted by
both parties is in substantial agreement that non-marital cohabitation under Serbian
law entails a sustained and multi-faceted relationship. The Jovic Chapter
submitted by Cerovic, for example, describes non-marital cohabitation as “joint
living” and “joint household,” a “long lasting” and “lasting life cohabitation of a
man and a woman, that is unmarried partners.” What constitutes non-marital
cohabitation, according to the Jovic Chapter, is the “totality of the reciprocal
relations of unmarried partners, the fact which compensates for the lack of the
legal form of marriage.” A sexual relationship is part, but not the whole of it.15
15
Dotellis v. Dotellis, 187 A.2d 128 (D.C. 1962), on which Cerovic relies,
is not to the contrary. In Dotellis, the court interpreted the word “cohabitation” in
the District of Columbia divorce statute to mean sexual relations where the word
was used as part of the phrase “voluntary separation from bed and board . . .
without cohabitation.” Id. at 129. The court considered “popular or common
usage, and, especially, the context in which the word was used, for otherwise the
word ‘cohabitation’ would have little or no meaning,” where the essence of the
divorce statute is to require proof that the parties live “separate lives.” Id. at 129.
See Pedersen v. Pedersen, 107 F.2d 227, 231 n.12 (D.C. Cir. 1939) (noting that
“caution is appropriate against confusing matrimonial relations with the purely
sexual side of marriage, merely one aspect of the total relation”) (quoted in
Dotellis, 187 A.2d at 128-29)).
29
With respect to the factors that the trial court did take into account, such as
whether the parties merged their finances or shared a residence to prove the
parties’ intent to live in a marriage-like relationship, we agree with Cerovic that
those factors must be considered in light of their circumstances at the time. In this
case, that meant both parties already had separate apartments and finances when
they met and knew they would be together in Serbia only until Stojkov left for the
United States in three months, which would have made consolidation of their
finances and living arrangements impractical. However, the fact that they did not
share keys to each other’s apartments or “announce[] themselves as husband and
wife to third parties” during that time — two factors the trial court also considered
— are relevant in determining whether there was a “totality of reciprocal
relations.” The trial court did consider the parties’ plans for the future. It found
that the fact that Cerovic took a leave of absence from her employment in Serbia
(but did not quit) to come to the United States and that Stojkov bought a house in
the District of Columbia, without Cerovic’s approval, at a time when Cerovic’s
H1-B visa had been denied belied Cerovic’s claim that they considered themselves
to be husband and wife. Stojkov’s purchase of the house on his own, however, is
not necessarily a rejection of a future life in common, as he testified that he made
the purchase expecting they would live there together and knew that Cerovic had
appealed the visa denial, an appeal she eventually won.
30
b) Application of D.C. Code § 16-910 to Serbian Non-marital Cohabitation
Cerovic contends that the trial court also erred in interpreting D.C. Code
§ 16-910 as not applying to a Serbian non-marital cohabitation at all because it is
not a “marriage.”
D.C. Code § 16-910 provides that “[u]pon entry of a final decree of legal
separation, annulment, or divorce, or upon the termination of a domestic
partnership pursuant to § 32-702 (d),” the trial court shall value and distribute
“property and debt accumulated during the marriage or domestic partnership.”
D.C. Code § 16-910 (b) (emphasis added). Cerovic argued that a Serbian non-
marital cohabitation is the Serbian equivalent of a common law marriage that
“creates property rights without the need for a civil ceremony,” citing Articles 4
and 191 of the Serbian Family Act. Thus, she argues, it should be treated similarly
with respect to distribution of property. The interpretative question for this court,
therefore, is whether, assuming the trial court were to find, on remand, that Cerovic
has met her burden of proving the existence of a non-marital cohabitation in Serbia
by a preponderance of the evidence, it is a “marriage” contemplated by D.C. Code
31
§ 16-910. This also is a question of law we review de novo, as it involves the
interpretation of both D.C. Code § 16-910 and Serbian law.16
The trial court did not articulate the reasons for its conclusion that a Serbian
non-marital cohabitation “is not a marriage,” except to say that it is not a common
law marriage because Serbia is a civil law jurisdiction Stojkov argued, in addition,
that Serbian non-marital cohabitation should not be considered a marriage because
(1) it need not be formally entered into or dissolved like a marriage, but rather is
terminated “by virtue of factual termination of community life” and (2) there are
16
On appeal, Cerovic argues that the trial court erred in not considering
whether a Serbian non-marital cohabitation should be treated as a domestic
partnership under District of Columbia law. She relies on D.C. Code § 32-702 (I)
(2012 Repl.), which provides that “relationships established in accordance with the
laws of other jurisdictions, other than marriages, that are substantially similar to
domestic partnerships established by this chapter, as certified by the Mayor, shall
be recognized as domestic partnerships in the District.” This argument presents an
issue of first impression with respect to the application of D.C. Code § 32-702 (I)
to the courts in making a distribution of property under D.C. Code § 16-910. The
argument was not made to the trial court and we therefore do not address it on
appeal. See Akassy v. William Penn Apts. Ltd. P’ship, 891 A.2d 291, 304 n.11
(D.C. 2006). Moreover, Cerovic has presented no evidence that the Mayor has
“certified” that a non-marital cohabitation under Serbian law is “substantially
similar” to a domestic partnership under District of Columbia law. We review the
trial court’s ruling on the terms in which it was presented to and decided by the
trial court, i.e., whether a Serbian non-marital cohabitation is equivalent to a
“marriage.” The trial court may, if it deems it appropriate, consider the domestic
partnership argument on remand.
32
certain respects in which under Serbian law the property, inheritance and other
rights of cohabiters are not like those of persons who are married.
It is clear that a Serbian non-marital cohabitation is not a formalized
marriage. See Serbian Family Act, Official Herald of the Republic of Serbia
No. 18/2005, art. 1 (Feb. 24, 2005) (referring to “marriage and marriage relations”
and “relations in non-marital cohabitation”); Jovic Chapter at 214. But neither is a
common law marriage and it is well established that property acquired during a
common law marriage is considered “marital” and subject to equable distribution
under D.C. Code § 16-910. See Bansda, 995 A.2d at 197-98 (reviewing the trial
court’s equitable distribution of property following the dissolution of a common
law marriage); Young-Jones v. Bell, 905 A.2d 275, 277 (D.C. 2006). As Cerovic
recognizes, there is an element of irony in arguing that a legal status labeled
“nonmarital” should be deemed a marriage, but we agree that labels, particularly in
translation, are not dispositive of the proper interpretation of the statute. Rather,
we consider the substance of the elements that give the non-marital cohabitation
relationship legal status under Serbian law. 17
17
The argument that non-marital cohabitation should not be treated on a par
with common law marriage because Serbia is a civil jurisdiction is hyper-technical
and not persuasive. The fact that Serbia is not heir to English common law does
not undermine the argument that under Serbian law non-marital cohabitation is in
(continued . . .)
33
Stojkov emphasizes the differences between a Serbian non-marital
cohabitation and a District of Columbia common law marriage. For example, a
common law marriage may be legally terminated only by divorce or death of a
spouse. See Hoage v. Murch Bros. Constr. Co., 50 F.2d 983, 984 (D.C. 1931). A
Serbian non-marital cohabitation, on the other hand, can be terminated by the
conduct of the parties. But that can hardly be deemed dispositive because
domestic partnerships, which are subject to the same equitable distribution of
property as marriages under § 16-910, also do not require a court-decreed divorce
or dissolution, but are terminated by consent of both partners, or even by the
unilateral action of one of the partners. See D.C. Code § 32-702 (d) (2012 Repl.)
(providing for filing a “termination statement” with the Mayor).
The Serbian Constitution, Article 62, declares that “[n]on marital
cohabitation shall be equal with marriage, in compliance with the law,” and Article
4 of the Serbian Family Act similarly provides that “[c]ohabiters have the rights
and duties of spouses under the conditions of this Act.” These provisions clearly
denote that non-marital cohabitation is not only legally recognized as conferring
__________________________________
(. . . continued)
substance akin to a common law marriage. Because Serbia is a civil law
jurisdiction, non-marital cohabitation is codified in the law of Serbia rather than
the creature of judicial decision-making. We focus on the law, not its source.
34
marriage-like benefits but enjoys constitutional protection in Serbia. With respect
to the issue of property distribution presented in this case, Serbian law expressly
provides that persons in a non-marital cohabitation have “joint” property rights.
See Art. 191 of the Serbian Family Act18; Expert Witness Report (“[C]ourt practice
[has] determined that an extra marital partner is equal in rights and obligations as a
marital partner with respect to support and property, but not with respect to the
right to inherit.” (citing Decision of the District Court in Čačak, Gž 454/07, Apr.
18, 2007)). In light of the evidence of Serbian law that is of record in this case, we
are bound by principles of comity to respect Serbian non-marital cohabitation as
deserving of legal protection on a par with marriage, at least with respect to the
distribution of property. See Bansda, 995 A.2d at 198 (applying Dutch law to
determine whether domestic partnership existed for purposes of equitable
distribution under D.C. Code § 16-910); see also Hilton v. Guyot, 159 U.S.113, 16
S. Ct. 139, 164 (1895) (defining comity as “the recognition which one nation allows
18
Article 191 provides:
Joint Property
(1) The property that the cohabitees have acquired
through work during their non-marital cohabitation is
their joint property.
(2) The provisions of this Act governing relations
between spouses apply accordingly to property relations
between cohabitees.
35
within its territory to the legislative, executive, or judicial acts of another nation,
having due regard both to international duty and convenience, and to the rights of
its own citizens, or of other persons who are under the protection of its laws”).
Thus, even if, as Stojkov asserts (and the evidence of Serbian law supports), some
incidental property, inheritance, tax and other rights that attend a non-marital
cohabitation are different from those of married spouses under Serbian law,19 that
does not mean that non-marital cohabitation should not be deemed as having a
status “equal with marriage” that authorizes the trial court to distribute property
under D.C. Code § 16-910.20 The purpose of the court’s authority is to sort out in
an “equitable” fashion claims to property between divorcing spouses upon the
entry of a final decree of divorce, thus bringing the parties’ claims to complete
resolution after weighing a variety of factors of the overall marital relationship.
This objective would be thwarted if the trial court were unable to give cognizance
to a relationship between the parties that has a status equal to marriage in the
19
None of these different rights, e.g., to take the same family name, be a
forced heir, or apply for citizenship based on the relationship, are relevant to this
case.
20
To be clear, once it has been determined that a Serbian non-marital
cohabitation is a “marriage” for purposes of D.C. Code § 16-910, the trial court’s
obligation is not to implement Serbian law but to apply the equitable principles that
have been established for distribution of property under D.C. Code § 16-910. The
trial court’s authority is derived from District of Columbia not Serbian, law.
36
relevant jurisdiction or if property and debts that accrued during that relationship
were not considered in the equation or left unresolved.
On the record before us there are no findings or evidence as to whether the
parties acquired property or debt during the time of the asserted Serbian non-
marital cohabitation. However, in her counterclaim for unjust enrichment, Cerovic
claimed entitlement to the “increase in value, from the date of purchase [in 2001],
until the date of sale [in 2004]” of the Wisconsin Avenue apartment based on her
“significant contributions, both monetary and non-monetary during the time after
April 15, 2003, to assets in [Stojkov’s] sole name.” After the trial court denied the
unjust enrichment claim, it considered the Wisconsin Avenue apartment to be
Stojkov’s pre-marital sole property based on its determination at the conclusion of
the first phase of the proceedings that the parties did not have a non-marital
cohabitation in Serbia. Whether additional evidence or findings are necessary is a
matter properly for the trial court in the first instance, depending on the trial court’s
reconsideration of the issue of non-marital cohabitation under the preponderance of
the evidence standard.
37
B. Distribution of Marital Property
Cerovic contends that the trial court abused its discretion in its allocation of
marital debt. She argues that the trial court did not have the authority to include
attorney’s fees in the marital debt calculation under § 16-910, and that the
proportion of the debt allocated to her is inequitable in light of the large disparity
between her income and Stojkov’s, and the fact that, when she was unable to pay
an attorney after June of 2013, she was forced to proceed pro se, whereas Stojkov
kept incurring debt for legal representation in opposing her.
Cerovic also argues that the trial court did not have authority to require her
to repay $10,000 in attorney’s fees she charged to Stojkov’s credit card because
she had no other means to pay for an attorney to maintain the litigation, i.e., that it
was “suit money,” to which she was entitled. She further argues that the order
requiring her to pay $4,000 in rent for remaining in the T Street house during the
proceedings should be stayed until it is determined on remand whether she has
proven by a preponderance of the evidence that the parties had a common law
marriage in the District of Columbia, in which case the T Street house would be
marital property.
38
We review the distribution of marital property under § 16-910 for abuse of
discretion. See Abulqasim v. Mahmoud, 49 A.3d 828, 837 (D.C. 2012).
Accordingly, we first consider “whether the [trial court’s] exercise of discretion
was in error, and, if so, whether the impact of the error requires reversal.” Id.
(citation and internal quotation marks omitted).
We recognize that if the court were to determine on remand that the parties
were married at some time prior to 2010, the court would need to recalculate the
amount of marital property and debt and reconsider its equitable distribution.
However, even if the trial court were to come to the same determination, that there
was no prior marriage, the present distribution cannot be sustained because the trial
court proceeded on a mistaken legal premise as to what constitutes debt subject to
equitable distribution. In classifying and calculating marital debt, the trial court
included the parties’ attorney’s fees, which was a sizeable portion of the debt it
allocated between the parties.21 The attorney’s fees were incurred in connection
with the dissolution of the marriage: a small portion of the fees was incurred
during the litigation of the CPOs, which occurred during the parties’ separation,
and the bulk of the fees was incurred during the divorce proceedings.
21
Outstanding debt for attorney’s fees of both parties totaling $62,078.00
amounted to forty percent of the total marital debt of $157,209.
39
This court has not decided whether attorney’s fees incurred during a divorce
may be classified as marital debt for equitable distribution under D.C. Code § 16-
910. It is well established, however, that under the “American Rule” “[p]arties to
litigation usually pay their own costs and attorney’s fees,” which is subject to
“only a few exceptions,” such as fees authorized by statute, rule, or contract, or in
cases involving bad faith. Steadman v. Steadman, 514 A.2d 1196, 1200 n.4 (D.C.
1986); see Murphy v. Murphy, 46 A.3d 1093, 1101 (D.C. 2012) (“In the absence of
statutory or rule authority, attorney’s fees are not allowed as an element of
damages, costs, or otherwise.” (quoting Sudderth v. Sudderth, 984 A.2d 1262,
1269 (D.C. 2009))). Although we have not yet considered the exact issue, our case
law concerning attorney’s fees in divorce cases suggests that attorney’s fees are not
distributed as debt under D.C. Code § 16-910, but may be awarded under D.C.
Code § 16-911. See, e.g., Sudderth, 984 A.2d at 1269 (considering the trial court’s
award of attorney’s fees “[u]nrelated to the distribution of marital property”);
Meyers & Batzell v. Moezie, 208 A.2d 627, 629 (D.C. 1965) (noting that “recovery
of attorneys’ fees is ancillary to the divorce action”).
We begin our analysis with the words of the statute. See Tippett, 10 A.3d at
1126. The District of Columbia statute does not define the terms “marital
property” or “marital debt.” Section 16-910 simply refers to distribution of
40
“property and debt accumulated during the marriage.” D.C. Code § 16-910 (b).
Thus, a literal reading would permit inclusion of attorney’s fees incurred in the
course of divorce proceedings as debt to be distributed between the parties,
because the parties were still legally married at the time the debt for attorney’s fees
was incurred, and in that sense was “accumulated during the marriage.”
(Emphasis added.) Many jurisdictions, however, do not classify attorney’s fees
incurred in the course of divorce proceedings as marital debt because “expenses of
terminating the marriage itself can hardly be marital, especially where the
termination results from the bad conduct or deliberate choice of the other spouse.”
Brett R. Turner, Equitable Distribution of Marital Property § 6:97 (2014). These
jurisdictions do not permit attorney’s fees to be distributed equitably because to be
considered “marital debt,” the obligation should be “a debt incurred during the
marriage and before the date of separation, by either spouse or both spouses, for
the joint benefit of the parties.” Finley-Swanson v. Swanson, 823 N.W.2d 697, 706
(Neb. Ct. App. 2012); see, e.g., Rodvik v. Rodvik, 151 P.3d 338, 346 (Alaska 2006)
(holding that, on remand, the trial court should remove attorney’s fees incurred
during the divorce proceedings from the “marital debt” classification); Smith v.
Smith, 934 So. 2d 636, 642 (Fla. Dist. Ct. App. 2006) (holding that the
classification of divorce mediation fees as marital debt was error); Schmitz v.
Schmitz, 950 So. 2d 462, 463 (Fla. Dist. Ct. App. 2004) (holding that the
41
classification of attorney’s fees incurred after the filing of the divorce action as
marital debt was error); In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa
2007) (“Attorneys’ fees incurred in dissolution proceedings are not marital debt.”);
Va. Code Ann. § 20-107.3 (5) (defining “marital debt” as “all debt incurred in the
joint names of the parties before the date of the last separation of the parties”).
In determining the scope of debts to be equitably distributed under § 16-910,
we consider the statute as a whole. See Tippett, 10 A.3d at 1127. The District of
Columbia statutory scheme governing actions for separation and divorce sets out
different sources of authority and standards for the distribution of property (§ 16-
910); for pendente lite relief, including attorney’s fees (§ 16-911); and for alimony
(§ 16-913). Section 16-911 provides:
During the pendency of an action for legal separation,
divorce, the termination of a domestic partnership
pursuant to § 32-702 (d), where one of the domestic
partners has filed a petition for relief under this section,
or an action by a spouse to declare the marriage null and
void, where the nullity is denied by the other spouse, the
court may:
(1) require the spouse or domestic partner . . . to pay suit
money, including counsel fees, to enable such other
spouse to conduct the case. The court may enforce any
such order by attachment, garnishment, or imprisonment
for disobedience. . . .
42
D.C. Code § 16-911 (a) (1) (2015 Supp.).
The purpose of allowing trial courts to award money to pay attorney’s fees
under § 16-911 is “to ensure that a party in a divorce action not be hindered
unfairly in maintaining the action by unequal burdens between the spouses,” or to
“enable a spouse to conduct litigation.” Tydings v. Tydings, 567 A.2d 886, 890,
891 n.5 (D.C. 1989). It aims “to equalize the burdens between the spouses;
otherwise a party armed with superior economic resources may favor ‘litigation as
a means to force a settlement by attrition.’” Id. at 890. Consequently, “before a
court may exercise its discretion to award suit money under § 16-911(a), the
spouse requesting fees must make an initial showing that the suit money is
necessary to enable that spouse to ‘carry on or defend’ the divorce action.”
McClintic v. McClintic, 39 A.3d 1274, 1279 (D.C. 2012) (quoting definition of
“suit money” in Rubin v. Rubin, 195 A.2d 696, 700 (Md. 1963)). Thus, a
“threshold showing of need” is mandatory to trigger application of § 16-911 (a).
Id. That determination of need is to be made based on the financial situation of the
requester as of the time that the litigation is taking place, although the award of
fees may take place after the litigation is conducted. See Araya v. Keleta, 65 A.3d
40, 58 (D.C. 2013) (interpreting §16-911(a)(1) provision authorizing court to
award suit money “during the pendency of an action for divorce” as permitting
43
award of fees “after trial and after the divorce decree has been issued”); Tydings,
567 A.2d at 891 (noting that statute’s purpose would be “ill-served by a refusal to
permit attorney’s fees at all if a spouse subjected to harassing litigation were still
fortunate enough to win a substantial property distribution”).
The award of fees under § 16-911, therefore, requires a two-step inquiry:
first, “whether to award a fee, and if so, to whom”; and second, the amount of the
award. Steadman, 514 A.2d at 1200-01. Once the threshold showing of need has
been met, the trial court may — but is not required to — award fees. See
McClintic, 39 A.3d at 1279-80. The determination whether to award fees and, if
so, in what amount, involves a variety of factors, such as the current financial
ability to pay of the opposing spouse, the requester’s failure to cooperate and
whether the requester made litigation “burdensome and oppressive” in a manner
that increased its costs, the necessity for the services of an attorney and the quality
and nature of the work performed. See id. at 1280; Kelly v. Clyburn, 490 A.2d
188, 191 (D.C. 1985). The motivations of the parties may be taken into account,
but depending on the size of the award, may not be given so much weight that it
“creates the very real risk of turning an award of attorney’s fees into punitive
damages, which are beyond the power of the court to grant.” Rachal v. Rachal,
489 A.2d 476, 478 (D.C. 1985). Classification of attorney’s fees incurred during
44
divorce proceedings as “marital debt,” and distribution of debt for such fees
between the parties as part of the equitable distribution of property, would bypass
the specific statutory authority in § 16-911, without engaging in the two-step
analysis we have interpreted the statute to require or considering the factors we
have identified should be taken into account at each step of the process. To permit
the trial court to effectively award attorney’s fees through allocation of marital
debt also falls outside the mechanism prescribed in the statute, which provides that
an order for suit money is to be enforced by specified means: “attachment,
garnishment, or imprisonment for disobedience.” D.C. Code § 16-911 (a)(1).
In view of the specific and separate statutory section, D.C. Code § 16-911,
that concerns attorney’s fees for prosecution of divorce actions and the detailed
analysis required for their award under that statutory provision, we hold that
attorney’s fees incurred during litigation of the dissolution of a marriage may not
be classified as marital debt and distributed pursuant to D.C. Code § 16-910. Cf. In
re Marriage of Huff, 834 P.2d 244, 248 (Colo. 1992) (holding that attorney’s fees
may not be incorporated into pendente lite payment because statutory scheme
provides for different standards and separate determinations concerning division of
property, attorney’s fees and maintenance payments).
45
Consequently, on remand the trial court should exclude all attorney’s fees
incurred during litigation of the CPOs and the divorce from the marital debt
calculus, re-determine the amount of marital debt incurred by the parties during
their marriage (i.e., during the marital period after reconsideration of the evidence
of an earlier marriage under the proper evidentiary standard), and reconsider the
equitable distribution of that debt.22
The trial court also should consider on remand whether an award of
attorney’s fees under § 16-911 is appropriate pursuant to the required analysis.
The trial court denied Cerovic’s request for attorney’s fees relying on the fact that
it had effectively “awarded” attorney’s fees to Stojkov when it distributed part of
his debt for attorney’s fees to Cerovic as marital debt. This was error because the
first, and indispensable, determination under § 16-911 is whether the requesting
party has made a showing of need. See McClintic, 39 A.3d at 1280. The trial court
22
Because on remand the trial court will need to recalculate and redistribute
the marital debt, and may include additional property as marital property,
depending on its reconsideration of the claim of an earlier marriage, we do not
consider Cerovic’s claims of abuse of discretion addressed to the proportions in
which the court allocated the debt.
46
has not made the predicate finding of need as to either party. 23 Once that showing
is made, the statute authorizes the award of fees, and the trial court may take a
number of factors into account in determining whether to make an award, and if so,
in what amount. On remand, the trial court should reconsider both parties’ request
for attorney’s fees under § 16-911, taking into account their financial need during
the litigation as well as their relative ability to conduct and/or defend the divorce
litigation. The court should make the necessary findings of fact and conclusions of
law. See Murphy, 46 A.3d at 1100-01 (citing Super. Ct. Dom. Rel. 57 (d)(3) and
Moore v. Moore, 391 A.2d 762, 770 (D.C. 1978)).
C. Alimony
Cerovic contends that the trial court abused discretion in denying her request
for alimony. She claims entitlement to alimony because she was not awarded both
23
It is not necessary that the spouse seeking suit money be penniless, but
that the money is necessary for the spouse to “carry on or defend” the divorce
action. McClintic, 39 A.3d at 1279. “[S]ome showing of inequality of litigation
resources” during the litigation (i.e., before the outcome of the proceeding) must be
made. Id. at 1280. Cerovic argues that the trial court abused discretion in denying
her request for fees under § 16-911 because she clearly demonstrated a need, as she
could not afford an attorney midway through the proceedings and had to continue
pro se. Stojkov, who is an attorney, was able to retain his attorneys, although he
had a considerable debt to his lawyers outstanding at the time of the court’s
disposition of the case.
47
temporary alimony and rent-free use of the T Street house, as the trial court
erroneously thought when it denied her alimony request; she is unable to fully
support herself; and although both she and Stojkov have had relatively stable
employment, her job opportunities and salary history have been constrained by her
visa situation, whereas Stojkov’s income has been higher than hers.
The decision whether to award alimony is “committed to the sound
discretion of the trial court and will be disturbed on appeal only when the record
manifests an abuse of that discretion.” Weiner v. Weiner, 605 A.2d 18, 19 (D.C.
1992) (quoting McCree v. McCree, 464 A.2d 922, 932 (D.C. 1983)). On appeal,
“[w]e will not reverse an alimony award so long as the trial court made a fair and
equitable award after considering the particular facts of the case in light of all
relevant factors.” Sudderth, 984 A.2d at 1266.
The purpose of alimony is to provide “reasonable and necessary support.”
Leftwich v. Leftwich, 442 A.2d 139, 142 (D.C. 1982). Under D.C. Code § 16-913
(d), the trial court must consider a variety of factors in determining whether to
award alimony and how much alimony to award, including (1) the ability of the
recipient to support himself or herself, fully or partially; (2) the time necessary for
the recipient to gain education or employment; (3) the standard of living
48
established during the marriage; (4) the duration of the marriage; (5) the
circumstances under which the parties became estranged; (6) the age and physical
and mental health of each party; and (7) financial need. See McEachnie v.
McEachnie, 216 A.2d 169, 170 (D.C. 1966) (listing factors).
The trial court considered many of these factors in concluding that appellant
is not entitled to alimony. The trial court noted that appellant received temporary,
rehabilitative alimony “as well as” continued use of the T Street property “through
the nearly two years of the ongoing litigation”24; that appellant is able to support
herself, is employed and has a pending application for U.S. citizenship that, if
granted, would open more opportunities for employment; that she does not require
further education; that neither party is in notably better physical or mental health
than the other; and that both parties have “somewhat erratic” employment
histories, but that Cerovic’s had been more stable. The trial court considered the
factors relevant to the strains in the marriage and found that both parties
24
This is not accurate. The trial court entered an order on July 13, 2012,
that required Cerovic to vacate the T Street house and Stojkov to pay $2,500/
month in pendente lite spousal support. The trial court then granted the parties’
joint request to stay the order to vacate and for pendente lite support. When
Stojov’s motion to vacate the stay concerning occupancy of the house was granted,
Cerovic was required to pay rent ($4,000) while she continued to occupy the T
Street house and she has been required to make that payment. The record is clear
that rent-free use of the T Street house was in lieu of, not in addition to, pendente
lite support.
49
“contributed equally” to its dissolution. Although the trial court pointed to a
number of permissible factors in denying Cerovic’s request for alimony, on the
current record we cannot discern how much weight the trial court gave to the
mistaken belief that Cerovic had more pendente lite support than she in fact
received. Without knowing that the trial court would have come to the same
determination under an accurate understanding of the pendente lite support, we
must remand the question of alimony for the trial court’s reassessment. We also
note that if the trial court were to conclude on remand that Cerovic has proved by a
preponderance of the evidence that the parties had a marriage prior to 2010, some
factors in the alimony evaluation, such as the duration of the marriage, would
change. In that event, the trial court should reconsider Cerovic’s request for
alimony.
D. Sanction
Finally, Cerovic contends that the trial court erred by requiring her to pay for
one day of Stojkov’s attorney’s fees as a sanction for presenting her argument
under Serbian law on the eve of trial, without proper prior notice to Stojkov. She
argues that the sanction amount should be reversed or reduced because the trial
court offered a continuance to Stojkov so that he could respond to the Serbian law
50
argument, but his counsel requested that the trial continue as scheduled and the
trial court took testimony from Cerovic that day. In effect, she argues that because
counsel would have been in court in any event, Stojkov suffered no prejudice as he
had time to (and did) respond with his own memorandum of Serbian law.
Moreover, according to Cerovic, Stojkov already knew about the significance of
Serbian law as evidenced by his motion in limine to preclude evidence about the
parties’ relationship in Serbia, on the ground that the law of the jurisdiction where
the marriage occurred applied, citing Bansda, 995 A.2d at 198, and that as a civil
law country, Serbia did not recognize common law marriage. It was in response to
this argument that Cerovic presented a memorandum on non-marital cohabitation
under Serbian law.
We review a trial court’s imposition of a sanction for abuse of discretion.
Id. at 204-05. After Cerovic submitted her memorandum of law on Serbian non-
marital cohabitation two days before trial, the trial court stated that, “to be fair,”
the appropriate remedy was to continue the trial, so that Stojkov would have time
to respond and the issue would be taken up at the next-scheduled trial date. The
court then awarded fees for the “lost” trial day. Stojkov’s counsel, however, asked
that the trial go ahead that day because Stojkov had traveled to be present; Cerovic
then took the stand as the first witness.
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A party who “intends to raise an issue concerning the law of a foreign
country shall give notice by pleadings or other reasonable written notice.” Super.
Ct. Civ. R. 44.1. As Cerovic was the proponent of a marriage under Serbian law, it
was her burden to present the law of Serbia on that issue and to give “reasonable”
written notice to Stojkov. As Cerovic did not give reasonable notice, in principle,
the trial court could sanction her for not complying with Rule 44.1. In imposing
the sanction, the trial court explained, “this aspect of the litigation was sufficiently
complex that [Stojkov] required the services of an attorney,” and concluded that an
appropriate sanction was $1,516.66, based on counsel’s hourly billing rate
multiplied by the number of hours his attorney spent on the first day of trial.
Notwithstanding our deference to the trial court on the imposition of sanctions, we
are hard pressed to understand the sanction amount in light of the court’s
articulated rationale. There is no relationship between Stojkov’s counsel’s fees for
the first day of trial (which went forward as scheduled) and the delay in providing
notice of non-marital cohabitation under Serbian law, which was the subject of
subsequent briefing and hearings. The trial court should reconsider the sanction on
remand.
52
III. Remand
We reverse and remand the case so that the trial court may (1) determine
whether Cerovic proved, by a preponderance of the evidence, that she and Stojkov
entered into a marriage under Serbian or District of Columbia law prior to 2010;
(2) recalculate the parties’ marital debt, without the attorney’s fees incurred in
connection with their divorce; (3) reconsider, in light of the recalculation of marital
debt, and, possibly of marital property (if it is determined that the parties had a
prior marriage), the equitable distribution between the parties under D.C. Code
§ 16-910, and, if appropriate, whether alimony payments to Cerovic are warranted
under § 16-910 (d); (4) consider whether attorney’s fees should be awarded to
either party under D.C. Code § 16-911; and (5) reconsider the sanction.
So ordered.