Edmund C. Fleet v. Ericka E. Fleet , 2017 D.C. App. LEXIS 84 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-FM-1418
EDMUND C. FLEET, APPELLANT,
V.
ERICKA E. FLEET, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DRB-3615-13)
(Hon. Robert R. Rigsby, Trial Judge)
(Submitted February 7, 2017 Decided April 20, 2017)
Jennifer Anukem for appellant.
Daniel S. Shaivitz for appellee.
Before THOMPSON, BECKWITH, and MCLEESE, Associate Judges.
BECKWITH, Associate Judge: Appellant Edmund Fleet appeals from a
judgment of absolute divorce entered by the trial court following a five-day bench
trial. Mr. Fleet challenges the court‘s distribution of a portion of the marital home
and Mr. Fleet‘s retirement account to his ex-wife, appellee Ericka Fleet. Mr. Fleet
contends that in dividing the marital home, the court applied an improper
2
presumption of equal—rather than equitable—distribution, resulting in an
erroneous allocation of fifty percent of the equity in the home (after deducting Mr.
Fleet‘s $30,000 down payment and costs relating to the sale of the home) to Ms.
Fleet. Mr. Fleet also claims that the court failed to consider certain facts bearing
on the equitable distribution of the home and failed to make a finding as to the
value of the home. Regarding his retirement account, Mr. Fleet claims that the trial
court erred in awarding a portion of the account to Ms. Fleet, even though the
account decreased in value over the course of the marriage. We agree with Mr.
Fleet that the trial court‘s factual findings are inadequate to support its distribution
of the marital home and the retirement account, and we reverse and remand for
further consideration.
I. Background
Ericka and Edmund Fleet were married in October 2010. They had one
child, born in January 2013. In August 2013, the parties began ―liv[ing] separate
and apart, without . . . cohabitation,‖1 and Ms. Fleet subsequently filed a complaint
for legal separation and custody. Mr. Fleet filed a counterclaim for absolute
1
The parties both remained in the marital home until March 2014, sleeping
in different rooms.
3
divorce and custody. After two years of proceedings, including an appeal to this
court2 and a five-day bench trial, the trial court entered a judgment of absolute
divorce. The court‘s written judgment resolved a number of disputes between the
parties, including custody of their child, child support, alimony, and distribution of
property. Only the court‘s findings and conclusions relating to the marital home
and to Mr. Fleet‘s retirement account are at issue in this appeal.
A. The Marital Home
During most of the marriage, including a number of months after the parties
were legally separated, the parties lived together—with their child and Ms. Fleet‘s
child from an earlier marriage—in a house in Southeast Washington, D.C. Mr.
Fleet had purchased the home in January 2010, nine months before the marriage,
and the title was solely in Mr. Fleet‘s name.3 Mr. Fleet financed the purchase with
a mortgage, and he made a $30,000 down payment. Before and during the
marriage, Mr. Fleet was solely responsible for the mortgage and all other expenses
related to the home. Mr. Fleet testified at trial that he covered some of the
2
Fleet v. Fleet, 137 A.3d 983 (D.C. 2016).
3
Ms. Fleet testified at trial that she and Mr. Fleet had been ―looking to
purchase a property during [their] engagement period‖ and that she was involved
in the purchase decision.
4
expenses associated with the home using funds—eventually totaling $50,000—that
he borrowed from his mother. Ms. Fleet lost her job five months into the marriage
and was still unemployed at the time of the divorce trial in 2015. According to the
trial court‘s summary of the testimony, she contributed by ―maintaining the
household, caring for the minor child and paying household expenses with funds
earned by [Mr. Fleet] and by [Ms. Fleet] while she [was still employed] . . . and
while she collected unemployment thereafter.‖ ―[B]oth parties contributed to the
cooking, cleaning, laundry, and care of the minor child during the marriage.‖
One week before the parties separated in August 2013, Mr. Fleet deeded the
marital home to himself and Ms. Fleet, as tenants by the entirety. When asked at
trial why he added Ms. Fleet‘s name to the title, Mr. Fleet explained that Ms. Fleet
―kept pressuring [him] to do so and [that] [he] finally acquiesced . . . [i]n order to
keep peace in the house.‖ In hindsight, Mr. Fleet believed that Ms. Fleet, a former
paralegal, convinced him to add her name as part of a ―methodical and thought
out‖ ―exit strategy from the marriage.‖ In her testimony, Ms. Fleet explained the
decision process somewhat differently:
We had just had the baby and I wanted to establish some
stability for the baby of course and there was an incident
where we had had guests over and I was in charge of
paying the bills and I paid the water bill and I don‘t think
I paid enough of the water bill. So, they shut the water
off and it was embarrassing. . . . I couldn‘t transact
5
business because my name wasn‘t on any of the utilities
and so, with it being the water company[,] the owner of
the property is responsible for the water bill. . . . You
know this is my house too. I think we are going to have
to change that. I am going to have to get my name on the
deed . . . .
Ultimately, it was Ms. Fleet who reached out to the ―title company . . . and paid
them a flat fee to . . . have the documents prepared.‖
In the judgment of divorce, the trial court found that Mr. Fleet‘s act of
―add[ing] [Ms. Fleet‘s] name to the title of the marital home[] indicat[ed] an
intention that [Mr. Fleet] wanted [Ms. Fleet] to share in the ownership of the
marital home.‖ ―Consequently,‖ the court awarded Ms. Fleet ―50% of the value of
the mar[it]al home minus the $30,000 that [Mr. Fleet] paid for the down payment‖
and costs relating to the sale of the home. The court ordered the home to be sold,
reasoning that ―[a] sale . . . will allow Mr. Fleet to recover his original investment
of $30,000, empower the parties to meet certain obligations, reduce the parties‘
debt, and obtain an equitable distribution of marital assets.‖
B. The Retirement Account
Three months before the marriage, Mr. Fleet had $102,000 in a retirement
savings account. The court found that ―[t]hroughout the course of the marriage,
[Mr. Fleet‘s] retirement savings decreased in value.‖ Specifically, by July 2015,
6
Mr. Fleet had only $80,300 in the retirement account. Although Mr. Fleet testified
that in 2012 he made a $50,000 withdrawal from the retirement account to pay
various ―expenses of the family,‖ the trial court found it significant that ―there is
no documentary proof which demonstrates how the funds were used.‖ The trial
court awarded ten percent of the account to Ms. Fleet, reasoning that ―[d]uring the
course of the parties‘ separation and this litigation, [she] has been unable to save
for her retirement, while Mr. Fleet has continued to contribute to his own
retirement fund.‖
II. Discussion
Mr. Fleet challenges the trial court‘s division of the marital home and his
retirement account. The distribution of property in divorce is governed by D.C.
Code § 16-910 (2012 Repl.). Each party is assigned ―his or her sole and separate
property,‖ and all other property—the marital property—is distributed ―in a
manner that is equitable, just, and reasonable.‖ Id. § 16-910 (a), (b). In dividing
marital property, ―[t]he trial court must engage in a ‗conscientious weighing of all
relevant factors, statutory[4] or otherwise.‘‖ Young-Jones v. Bell, 905 A.2d 275,
277 (D.C. 2006) (quoting Barnes v. Sherman, 758 A.2d 936, 943 (D.C. 2000)).
4
See D.C. Code § 16-910 (b).
7
―[T]he trial court has considerable discretion and broad authority‖ in making this
determination. Id. (quoting Barnes, 758 A.2d at 939). This court will not reverse
if ―the trial court‘s findings of fact, conclusions of law and judgment, taken
together . . . present an integrated, internally consistent and readily understood
whole.‖ Id. (quoting Barnes, 758 A.2d at 939) (omission in original). This court
will reverse, however, where ―inadequate findings on material issues preclude[]
meaningful appellate review.‖ Burwell v. Burwell, 700 A.2d 219, 224 (D.C. 1997).
A. Distribution of the Marital Home
Mr. Fleet first attacks the trial court‘s decision to award Ms. Fleet half of the
equity in the marital home remaining after deducting his $30,000 down payment
and costs relating to the sale of the home. He concedes that because he added Ms.
Fleet‘s name to the title, the home is marital property, subject to equitable
distribution under D.C. Code § 16-910 (b). See De Liedekerke v. De Liedekerke,
635 A.2d 339, 343 (D.C. 1993) (―[P]utting even separate property in joint names
‗for whatever reason‘ subjects it to division under [the] section [governing marital
property].‖ (quoting Turpin v. Turpin, 403 A.2d 1144, 1146 (D.C. 1979))). But
Mr. Fleet challenges the application of § 16-910 (b) under the facts of this case, on
various grounds.
8
First, Mr. Fleet contends that the trial court erroneously ―made legal title the
dispositive factor when granting [Ms. Fleet] an equal interest in the marital home,‖
or that the court at least employed an improper presumption of equal distribution.
It is well established that the District‘s ―divorce law contains no presumption in
favor of an equal distribution of property; instead, it requires the court to divide the
marital property ‗in a manner that is equitable, just and reasonable,‘ after
considering ‗all relevant factors.‘‖ Burwell, 700 A.2d at 223 (quoting D.C. Code
§ 16-910 (b) (1997 Repl.)); see also Sudderth v. Sudderth, 984 A.2d 1262, 1267
(D.C. 2009); Barnes, 758 A.2d at 940 n.7. Moreover, ―[t]he mere listing of the
parties as joint tenants [is] not dispositive on the issue of legal entitlement
following a divorce.‖ Benvenuto v. Benvenuto, 389 A.2d 795, 798 (D.C. 1978).
Here, in the judgment of divorce, the trial court, immediately after noting that Mr.
Fleet added Ms. Fleet‘s name to the title and concluding that this ―indicat[ed] . . .
that [Mr. Fleet] wanted [Ms. Fleet] to share in the ownership of the marital home,‖5
5
The finding that Mr. Fleet ―wanted [Ms. Fleet] to share in the ownership
of the marital home‖ appears to contradict both parties‘ testimony about their
motivations for adding Ms. Fleet to the title and may be clearly erroneous. See
Abulqasim v. Mahmoud, 49 A.3d 828, 834 (D.C. 2012) (―A finding is clearly
erroneous when . . . the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.‖ (internal
quotation marks and citation omitted)). Even putting aside the testimony of both
parties contradicting the court‘s finding, Mr. Fleet‘s act of deeding the home to
(continued…)
9
ruled that ―[c]onsequently, [Ms. Fleet] will be entitled to 50% of the value of the
mar[it]al home minus the $30,000 . . . down payment.‖ This strongly suggests that
the court relied on title as a dispositive factor in awarding a fifty-percent share to
Ms. Fleet.
It is true that the court also noted that Mr. Fleet purchased the home and
made all of the mortgage payments and that Ms. Fleet (as well as Mr. Fleet) took
care of household tasks and child care. So it is possible that the court, by weighing
these facts, decided that equal division of the equity in the house (less Mr. Fleet‘s
down payment and the sales costs) was the equitable way to divide the property.
But the spare reasoning in the judgment of divorce precludes us from concluding
(…continued)
both parties as tenants by the entirety did not necessarily evince a desire to gift a
share of the property to Ms. Fleet. See Chamberlain v. Chamberlain, 287 A.2d
530, 532 (D.C. 1972) (―[I]t cannot be held that the wife by . . . agreeing that title be
taken in both names made a gift to her husband. . . . [Such an act is more
consistent with a] desire[] to assure her husband‘s right of survivorship during the
continuance of the marriage than [a desire to] make an absolute disposition to him
of a one-half interest in the home.‖). Further, even if the act of deeding the
property in this case constituted an interspousal gift, this fact would not necessarily
be dispositive, given D.C. § 16-910 (b)‘s requirement of equitable distribution.
Such a gift could have been ―conditional upon the marriage lasting for a reasonable
period of time,‖ and ―[w]here a spouse makes a transfer into joint tenancy
expecting a long relationship, and the relationship ends soon after, it [could be]
inequitable to divide gifted property equally.‖ 2 Brett R. Turner, Equitable
Distribution of Property § 8:6 (3d ed. 2016). On remand, the trial court should
reconsider or elaborate upon this finding.
10
that the court did in fact weigh the facts in this way.6 See Foster-Gross v. Puente,
656 A.2d 733, 737 (D.C. 1995) (explaining that ―the trial court must make written
findings . . . for all material issues‖ in order to ―assur[e] that the issues . . . are
resolved based upon the evidence, and not extralegal considerations‖). And even
assuming that the court‘s conclusion reflects a tacit weighing of the parties‘
respective contributions to the marriage, ―[t]he court‘s equation of the
[contributions of the] two sides . . . , without any subsidiary findings [in the record]
to support this conclusion, makes it impossible for us to assess the correctness of
the ruling.‖ Burwell, 700 A.2d at 225; see also Pimble v. Pimble, 521 A.2d 1173,
1175 (D.C. 1987) (requiring the trial court to set forth ―findings . . . sufficient to
allow meaningful appellate review‖).
Mr. Fleet next argues that the trial court erred in failing to value the marital
home before distributing it. Mr. Fleet is correct that the court‘s judgment of
divorce does not contain a valuation of the home, notwithstanding that the court
received testimony on the marital home‘s value and admitted into evidence
6
Although the court found that Ms. Fleet ―did contribute to the maintenance
of the marital home, including cleaning, paying bills, and general up-keep, as well
as looking after the minor child,‖ the court also found that ―both parties
contributed to the cooking, cleaning, laundry, and care of the minor child.‖ The
court did not determine the parties‘ respective contributions.
11
multiple expert appraisals.7 He is also correct that this runs afoul of D.C. Code
§ 16-910, which explicitly states that ―in the absence of a[n] . . . agreement
resolving all issues related to the property . . . , the court shall[] . . . value and
distribute all‖ marital property (emphasis added). See also Murphy v. Murphy, 46
A.3d 1093, 1097 (D.C. 2012) (―Distribution of marital property necessarily
requires a valuation of those assets.‖). On remand, the trial court should make a
determination as to the value of the marital home. 8 Because it is likely that the
home has already been sold, the actual sales price of the home should control,
absent evidence that the home was sold in an unreasonable manner. This is
7
Ms. Fleet argues that because the trial court determined that a sale of the
property ―will allow Mr. Fleet to recover his original investment of $30,000,
empower the parties to meet certain obligations, reduce the parties‘ debt, and
obtain an equitable distribution of marital assets,‖ the trial court must have
determined the value of the marital home, despite failing to set forth such a
valuation or the court‘s reasoning in support of it in the judgment. According to
Ms. Fleet, ―[t]here is no other explanation for how the trial court could have
reached th[e] conclusion‖ it did. Even if we overlooked the speculative nature of
this argument, the trial court is still required to set forth ―findings . . . sufficient to
allow meaningful appellate review‖ of its valuation, Pimble, 521 A.2d at 1175, and
it failed to do so. A remand is therefore required.
8
Notwithstanding the statutory requirement, it might at first seem that a
valuation is pointless where the court has chosen to divide an asset in a
proportional manner (here, fifty-fifty). But unless ―the court divide[s] each and
every asset between the parties in exactly the same ratio,‖ the overall division of
property will depend on the values of the individual assets. 2 Brett R. Turner,
Equitable Distribution of Property § 7:1 (3d ed. 2016).
12
consistent with the principle that in distributing assets, the trial court should
consider the current asset values. See Murphy, 46 A.3d at 1097. If the house has
been sold, the most current relevant value is the value at the time of sale.
Mr. Fleet‘s final claim of error concerning the division of the marital home
is that the trial court purportedly failed to consider several factors bearing on the
home‘s equitable distribution: ―(1) Mr. Fleet‘s contributions to the acquisition and
preservation of the home; (2) the loaned monies [from Mr. Fleet‘s mother] which
made the aforementioned possible; [and] (3) the circumstances that motivated the
parties to retitle the property.‖
We agree that the trial court‘s findings concerning the first of these factors
are not sufficiently detailed to permit appellate review. Although the court
mentioned Mr. Fleet‘s monetary contributions and both parties‘ nonmonetary
contributions to the upkeep of the home and care of their child, the court did not
engage in a comparative valuation of the parties‘ respective contributions. And
there is merit to Mr. Fleet‘s specific contention that the court should have
explicitly considered ―the period of time between the parties‘ separation and the
date of distribution when [Mr. Fleet] was single handedly making mortgage
13
payments, and thus single handedly contributing to the equity of the home.‖ 9 Mr.
Fleet‘s continuing contribution to the equity of the home after separation was
undoubtedly relevant and something the court should have addressed. See D.C.
Code § 16-910 (b)(10) (requiring the court to consider ―each party‘s contribution
to the acquisition, preservation, appreciation, dissipation, or depreciation in value
of the assets‖). Of course, other factors may weigh against giving Mr. Fleet credit
for his post-separation contributions to the equity of the home. See, e.g., Beals v.
Beals, 303 P.3d 453, 464 (Alaska 2013) (―[T]he superior court should consider
whether any such credits should be offset by the value of the benefit of the
spouse‘s post-separation occupancy of the house.‖ (internal quotation marks,
citation, and brackets omitted)); von Raab v. von Raab, 494 S.E.2d 156, 161 (Va.
Ct. App. 1997). But the trial court must set forth its reasoning in a manner that
allows this court to review it.
We also agree that the testimony that Mr. Fleet‘s mother lent him
approximately $50,000 for expenses related to the home was material and should
9
The court did note in the judgment of divorce that Mr. Fleet ―continue[d]
to be solely responsible for the mortgage‖ after separation, but the judgment does
not indicate that the court attached any weight to that fact or made a reasoned
decision not to attach weight to that fact.
14
have been explicitly addressed by the trial court.10 The court mentioned that Mr.
Fleet owed money to his mother in considering whether to grant alimony to Ms.
Fleet, but this brief discussion did not grapple with the potential bearing of Mr.
Fleet‘s debt to his mother on the division of the marital home. See D.C. Code
§ 16-910 (b) (requiring the equitable distribution of all ―property and debt
accumulated during the marriage‖ (emphasis added)); Zandford v. Wiens, 549 A.2d
13, 14 (Md. 1988) (―[W]hen a court is required to determine the value of marital
property, it must consider as marital debt an outstanding loan traceable to the
acquisition of the property, even though the loan is not a lien on the property.‖).
We recognize that it is the trial court‘s job—not this court‘s—to assess the
credibility of the testimony about the debt and make factual findings concerning
how any money lent by Mr. Fleet‘s mother was used. But the trial court‘s
judgment must set forth those findings.
There is also some merit to Mr. Fleet‘s argument that ―the trial court failed
to consider the timeline in which Mrs. Fleet‘s name was added to the deed.‖ The
10
We disagree, however, with Mr. Fleet‘s argument that the trial court
failed to consider his debt to the Internal Revenue Service. As the court said in its
written order, ―Mr. Fleet‘s mistaken belief regarding his allowable deductions was
the sole cause of [his] tax liabilities and, therefore, Mr. Fleet shall remain solely
liable for these tax liabilities.‖ Mr. Fleet has not demonstrated that the trial court
clearly erred in reaching this conclusion.
15
judgment of divorce implicitly rejects Mr. Fleet‘s position that Ms. Fleet pressured
him into adding her name to the title as part of her ―exit strategy from the
marriage.‖ And on the record before us, such a conclusion is not clearly erroneous.
But, as indicated in note 5, supra, the trial court did not sufficiently explain its
finding that Mr. Fleet ―wanted [Ms. Fleet] to share in the ownership of the marital
home,‖ which seems to contradict both parties‘ stated motivations for adding Ms.
Fleet‘s name to the title. Further factual findings concerning the circumstances of
the addition of Ms. Fleet‘s name to the title are required.
B. Distribution of the Retirement Account
Mr. Fleet also disputes the trial court‘s decision to award a portion of his
retirement account to Ms. Fleet. Specifically, he argues that the judgment of
divorce did not set forth the trial court‘s reasoning for classifying the funds in the
account as a marital asset and that much of the account should have been classified
as separate property. He relies on the undisputed evidence that the retirement
account existed before the marriage and depreciated in value, due to a $50,000
withdrawal, during the course of the marriage. Mr. Fleet also argues that the
court‘s stated reason for assigning Ms. Fleet a share of the retirement account—
that ―[d]uring the course of the parties‘ separation and th[e] litigation,‖ Mr. Fleet,
but not Ms. Fleet, had been able to save for her retirement—was improper.
16
We agree that the trial court erred in failing to set forth its rationale for
classifying the retirement account—or some unidentified portion of it—as marital
property. As a general matter, retirement savings and benefits, ―to the extent
acquired during the marriage, are property subject to distribution under § 16-910
(b).‖ Herron v. Johnson, 714 A.2d 783, 784 (D.C. 1998). But we have never held
that preexisting retirement funds brought into the marriage should be classified as
marital property. Cf. Yeldell v. Yeldell, 551 A.2d 832, 835 (D.C. 1988)
(recognizing ―the clear line drawn by the legislature between property acquired
prior to the marriage (section 16-910 (a)) and property accumulated during the
marriage (section 16-910 (b))‖). Here, Mr. Fleet accumulated $102,000 in his
retirement account before the marriage. Absent circumstances that would
transform the $102,000 into marital property11—and the trial court did not identify
any such circumstances in the judgment of divorce—those funds were separate
property.
11
See, e.g., Araya v. Keleta, 65 A.3d 40, 56 (D.C. 2013) (―[W]here a
spouse‘s separate property has been combined or blended with marital property in
such a way that (1) the two items of property came to be used as one property and
(2) one or both properties would be destroyed or damaged or left with a gaping
deficiency or defect if the properties were separated, the Darling rule permits the
trial court to treat the separate property as ‗transformed‘ and the combined or
blended property as marital property that is subject to equitable distribution under
§ 16–910 (b).‖ (citing Darling v. Darling, 444 A.2d 20 (D.C. 1982)) (footnote
omitted)); De Liedekerke, 635 A.2d at 342 n.7.
17
It was not necessarily error, however, for the trial court to classify funds
derived from post-separation, pre-divorce contributions (along with any funds
derived from pre-separation contributions12) as marital property. Cf. Cerovic v.
Stojkov, 134 A.3d 766, 784–86 (D.C. 2016) (explaining that ―a literal reading [of
D.C. Code § 16-910] 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,‘‖ but
relying on another statutory section to find that attorney‘s fees are excluded from
the marital debt). Thus, there was nothing improper about the court noting that
―[d]uring the course of the parties‘ separation and th[e] litigation,‖ Mr. Fleet, but
not Ms. Fleet, had been able to contribute to a retirement account. The court did
err, though, in failing to indicate how much of the $80,300 in the account at the
end of the marriage was the result of contributions during the marriage (both
before and after the parties‘ separation), in failing to explain what percentage of
that portion of the account should be awarded to Ms. Fleet, and in failing to explain
12
The trial court did not make any findings as to whether Mr. Fleet made
contributions to his retirement account during the marriage before the parties‘
separation. There is evidence in the record—namely, account statements and Mr.
Fleet‘s testimony—indicating that Mr. Fleet stopped making contributions about
six months into the marriage, after Ms. Fleet lost her job.
18
in sufficient detail what factors would make such an award equitable under the
circumstances.13
III. Conclusion
For the foregoing reasons, we reverse the trial court‘s rulings and remand for
further factual findings and conclusions of law.14 On remand, the trial court should
13
The trial court did not abuse its discretion, however, in refusing to credit
Mr. Fleet‘s explanation that the funds withdrawn from his retirement account in
2012 were used to pay family expenses. The trial court accurately noted that
―there is no documentary proof which demonstrates how the funds were used.‖
And Ms. Fleet testified that Mr. Fleet withdrew the funds to pay debts existing
from before the marriage.
14
Ms. Fleet argues that a remand is not required because ―[t]he trial court‘s
judgment, taken together, presented ‗an integrated, internally consistent and readily
understood whole‘‖ (quoting Bowser v. Bowser, 515 A.2d 1128, 1130 (D.C.
1986)). Ms. Fleet asserts that the trial court decided the issues of alimony and
child support in favor of Mr. Fleet, improperly imputed an income of $66,345 to
her despite the fact that ―[t]he record lacked any evidence that . . . [she] could
secure a job and achieve income in the reasonabl[y] foreseeable future,‖ failed to
give her a share of several rental properties owned by Mr. Fleet, and failed to
award attorney‘s fees and costs to her. Thus, Ms. Fleet argues, ―[t]he disposition
of the Marital Home and the [retirement] account was an equitable way to balance
the equities of the divorce, especially in light of the trial court‘s numerous denials
of claims made by Ms. Fleet.‖ But the judgment of divorce does not show that the
trial court endeavored to balance the equities in this way. For example, although
we have held in the past that ―it is within the trial court‘s discretion to award
marital property in lieu of alimony,‖ Sudderth, 984 A.2d at 1266, there is no
indication that the trial court in the present case compensated for its denial of
alimony to Ms. Fleet by awarding her a half share in the equity of the marital
home. Further, to the extent that Ms. Fleet contends that the trial court erred in
(continued…)
19
reconsider its award of a fifty-percent stake of the equity in the marital home to
Ms. Fleet and fully set forth the reasons supporting its award. While equal division
of the home might be equitable under the circumstances, the court‘s judgment
should make clear that the court is not relying on a presumption of equal division.
Further, the trial court should make factual findings about the value of the home
and consider this value in deciding how to equitably distribute the equity in the
home. The court should set forth findings and conclusions concerning Mr. Fleet‘s
mother‘s loan to Mr. Fleet and its bearing on the equitable division of the home.
Concerning the retirement account, the court should make findings as to what
portion of the funds in the account is properly considered marital property and
make findings as to what percentage of that portion should be awarded to Ms.
Fleet.
So ordered.
(…continued)
resolving some issues in favor of Mr. Fleet, her arguments are completely
perfunctory and therefore waived. See Derosiers v. District of Columbia, 19 A.3d
796, 797 n.1 (D.C. 2011).