Carome v. Carome ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 20-FM-0739, 20-FM-0740, 21-FM-0068, 21-FM-0069 & 21-FM-0127
ASLI CAROME, APPELLANT/CROSS-APPELLEE,
v.
PATRICK CAROME, APPELLEE/CROSS-APPELLANT.
Appeals from the Superior Court
of the District of Columbia
(2018-DRB-001768)
(Hon. William W. Nooter, Trial Judge)
(Argued February 8, 2023 Decided May 11, 2023)
Ayesha N. Khan for appellant/cross-appellee.
Steven P. Lehotsky for appellee/cross-appellant.
Before BECKWITH and MCLEESE, Associate Judges, and GLICKMAN, Senior
Judge.
MCLEESE, Associate Judge: Appellant/cross-appellee Asli Carome and
appellee/cross-appellant Patrick Carome challenge several rulings by the trial court
relating to the interpretation of a premarital agreement. We affirm in part, reverse
in part, and remand the case for further proceedings.
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I. Background
The following facts appear to be undisputed for current purposes. The parties
were married in 2010. They each entered the marriage with significant assets. Ms.
Carome initially took care of the parties’ children from prior marriages, but she
obtained a position as an attorney with the federal government in 2012. Mr. Carome
was a partner at a private law firm throughout the marriage, earning over one million
dollars a year.
The parties entered into a premarital agreement to govern the treatment of
their assets before, during, and after the marriage. With specified exceptions, the
agreement requires the parties to pay their earnings during the marriage into a joint
marital account. The parties contributed to a joint account pursuant to the agreement
until September 2013, when Mr. Carome closed the account.
The parties formally separated in November 2017. Ms. Carome subsequently
filed a petition for divorce, and Mr. Carome filed a counter-petition. The trial court
issued a divorce decree and resolved numerous contested issues. The present
appeals focus entirely on claims relating to the premarital agreement.
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After a bench trial, the trial court concluded that Mr. Carome had breached
the premarital agreement by failing to deposit earnings into the joint account
between 2013 and the parties’ separation in 2017. Both parties introduced expert
testimony regarding the amount of the underpayment by Mr. Carome. The trial court
ultimately awarded Ms. Carome more than $440,000 in damages.
II. Earnings “During the Marriage”
As previously noted, the premarital agreement generally requires the parties
to contribute their earnings to a joint account “during the marriage.” Agreement
§§ 1.5, 1.7. Specifically, § 1.7(A) of the agreement provides, in relevant part:
Each party agrees that he or she shall transfer to a Marital
Account the entire portion (if any) of his or her earnings
acquired during the marriage which is not applied towards
or otherwise set aside to satisfy the obligations and
arrangements described in items (i) through (vii) of this
Paragraph A.
The parties dispute the meaning of the phrase “during the marriage” in that
provision. Ms. Carome argues that the phrase should be interpreted to mean until
the date of divorce, so that Mr. Carome was obliged to make contributions to the
4
joint account until the divorce. Mr. Carome argues that the phrase should be
interpreted to mean until the date of separation.
Noting that neither party had sought consideration of extrinsic evidence, the
trial court ruled as a matter of law that “during the marriage” under § 1.7(A) does
not include the period after the parties’ separation.
We review de novo the trial court’s interpretation of the phrase “during the
marriage” in § 1.7(A). See, e.g., Abdelrhman v. Ackerman, 76 A.3d 883, 887-88
(D.C. 2013) (Where extrinsic evidence is not at issue, “[t]he proper interpretation of
a contract . . . is a legal question, which this court reviews de novo.”) (italics and
internal quotation marks omitted). Our task is to “determine what a reasonable
person in the position of the parties would have thought the disputed language
meant.” Dyer v. Bilaal, 983 A.2d 349, 355 (D.C. 2009) (internal quotation marks
omitted). We “look[] to the entire language of the agreement, not merely a portion
thereof,” and we consider “the customary, ordinary and accepted meaning of the
language used.” James G. Davis Constr. Corp. v. HRGM Corp., 147 A.3d 332, 340
(D.C. 2016) (internal quotation marks omitted).
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Although the agreement is not entirely clear on the point, we agree with the
trial court that the agreement is better read to establish the date of separation as the
end point of the parties’ obligation to contribute earnings to the joint account.
We acknowledge that a number of considerations support Ms. Carome’s
contrary interpretation. First, in ordinary language, marriage is understood to end at
the moment of divorce, not at the moment of separation. Compare, e.g., Divorce,
Webster’s Third New Int’l Dictionary 664 (2002) (“1: a legal dissolution in whole
or in part of a marriage relation . . .”), with, e.g., Separation, id. at 2070 (“4a(1):
cessation of cohabitation between husband and wife by mutual agreement”).
Second, the ordinary legal understanding is the same. See Divorce, Black’s Law
Dictionary 582 (10th ed. 2014) (“The legal ending of a marriage . . . .”); Separation,
id. at 1572 (“1. An arrangement whereby a husband and wife live apart from each
other while remaining married . . . .”); see also D.C. Code § 16-920 (final decree of
divorce dissolves bonds of matrimony); Powell v. Powell, 457 A.2d 391, 393 (D.C.
1983) (approving trial court’s treatment of property acquired after separation and
before divorce as property acquired “during the marriage”). Third, several other
provisions of the agreement seem to indicate that marriage under the agreement
continued after separation. See, e.g., Agreement § 3.2(A) (requiring parties to
6
designate each other as survivor beneficiary of portions of retirement plans derived
from contributions made “during the marriage and before separation”).
In our view, however, those considerations are outweighed by strong
indications to the contrary that the obligation to contribute to the joint account ends
at the point of separation. First, Recital H to the agreement refers to separation as a
form of “dissolution of the[] marriage.” Agreement Recital H. The agreement
expressly incorporates the recitals, which therefore are an operative part of the
agreement. See Agreement § 12.16 (“The Recitals set forth above are hereby
incorporated by reference as part of this Agreement.”); Goldman v. Lustig, 237 So.
3d 381, 384 n.2 (Fla. Dist. Ct. App. 2018) (recitals incorporated into agreement are
binding); First Bank & Tr. Co. of Ill. v. Vill. of Orland Hills, 787 N.E.2d 300, 308
(Ill. App. Ct. 2003) (“[P]reliminary recitals in [an] agreement of themselves are not
binding unless referred to in [the] operative portion of [the] agreement [so] as to
show a design that they should form a part of it[.]”) (brackets and internal quotation
marks omitted); cf. Trilon Plaza, Inc. v. Comptroller of N.Y., 788 A.2d 146, 151
(D.C. 2001) (rejecting argument that recital “can never be treated as an operative
part of a contract”) (internal quotation marks omitted). Recital H clearly treats
separation as the end of the marriage.
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Second, Recital F to the agreement describes the parties as “self-supporting”
and states that the parties “desire to waive any rights or claims to support from the
other in the event of a separation or divorce.” Agreement Recital F. That provision
undermines the theory that the parties would be obliged to continue contributing to
a joint account during a period of separation.
Third, various other provisions in the agreement appear to indicate that
marriage for purposes of the agreement ended at the moment of separation. See,
e.g., Agreement § 2.4(E) (successor home may be sold during marriage or “disposed
of upon a separation or divorce”).
Fourth, the agreement in a number of places draws the line between marital
property and separate property by focusing on the date of separation rather than the
date of the divorce. See, e.g., Agreement § 1.5(iv)-(v) (certain retirement benefits
attributable to contributions from date of marriage until separation are marital
property); id. § 1.6(ii) (retirement benefits earned after separation are separate
property). Those provisions support the view that money earned after separation
should not be viewed as marital property to be contributed to a joint account.
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Finally, the agreement provides that separation triggers the obligation to
divide marital property, and the value of the marital property is to be assessed as of
the date of separation. See Agreement § 5.2(A) (“In the event of the parties’
separation, the parties’ marital property shall be disposed of . . . ,” and “[e]ach party
shall receive one-half of the net value of all marital property owned by the parties as
of the date of separation.”). That provision strongly undermines the idea that the
parties would continue creating substantial amounts of new marital property after
the date of separation, particularly given that the agreement contains no direction
about how to divide such post-separation marital property.
The foregoing considerations on both sides lead us to the following
conclusions. The agreement is not carefully drafted, and it is internally inconsistent
on the general question whether the marriage should be understood to end at the
moment of separation or at the moment of divorce. The answer to that question
under the agreement might well vary depending on the specific provisions at issue.
Focusing on the provisions most directly at issue here, however, we agree with the
trial court that the agreement is better understood to establish separation as the end
point of the obligation to contribute to the joint account.
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We are not persuaded by Ms. Carome’s additional arguments to the contrary.
First, Ms. Carome refers in passing to extrinsic evidence concerning the
interpretation of the agreement. The trial court ruled, however, that neither party
had asked the court to consider extrinsic evidence in interpreting the contract. Ms.
Carome has not challenged that ruling in this court. We therefore decline to consider
extrinsic evidence.
Second, Ms. Carome argues that the phrase “during the marriage” must be
given the meaning that phrase is given in District of Columbia statutes and the
decisions of this court. We disagree. It is true that the agreement provides that the
“interpretation of th[e] [a]greement shall be determined and governed by the laws of
the District of Columbia.” Agreement § 12.13. The law of the District of Columbia,
however, is that terms in a contract ordinarily should be interpreted based on the
wording of the contract and applicable principles of contract interpretation, not
simply by relying on definitions that can be found in a statute or a decision of this
court. See generally, e.g., Convit v. Wilson, 980 A.2d 1104, 1114-15 (D.C. 2009)
(when interpreting contract, court follows “established rules of contract
interpretation,” looking first to language of contract) (internal quotation marks
omitted). To be clear, we agree with Ms. Carome that definitions of the phrase
“during the marriage” in statutes and the decisions of this court are relevant. See,
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e.g., Parker v. U.S. Tr. Co., 30 A.3d 147, 152 (D.C. 2011) (stating that where
contract provided that it would be interpreted in accordance with laws of District of
Columbia, argument that contractual term should be given statutory definition has
“some force and is, at a minimum, reasonable”); Morgenstern v. Nationwide
Agribusiness Ins. Co., 78 F. App’x 485, 491 (6th Cir. 2003) (“[S]tatutory definitions
can be relevant in construing a contract . . . .”). We do not, however, view such
definitions as necessarily dispositive, at least in the absence of contractual language
explicitly adopting a particular definition taken from statute or case law. Cf., e.g.,
Ins. Co. of N. Am. v. Godwin, 361 N.Y.S.2d 461, 464 (App. Div. 1974) (“[W]e are
here interpreting a policy of insurance, and [the insured] is entitled to have it
construed as a contract and not necessarily according to the statutory definition.”).
For the reasons we have stated, we do not find the definition of “during the marriage”
in statute and case law to be dispositive in this case.
Finally, Ms. Carome argues that ambiguities in the agreement should “be
construed strongly against the drafter,” who was Mr. Carome. Intercounty Constr.
Co. v. District of Columbia, 443 A.2d 29, 32 (D.C. 1982) (internal quotation marks
omitted). That consideration favors Ms. Carome, but we do not view the
consideration as determinative. The rule disfavoring the drafter of an agreement
comes into play only if other principles of contract interpretation leave the court
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unable to give the contractual language at issue a definite meaning. See id.(explaining that if, after court attempts to determine what reasonable person would
have thought contract meant, “a contract and its terms are still not subject to one
definite meaning, the ambiguities remaining in the contract will be construed
strongly against the drafter”) (citation and internal quotation marks omitted); see
also Am. Bldg. Maint. Co. v. L’Enfant Plaza Props., Inc., 655 A.2d 858, 863 (D.C.
1995) (canon of construction disfavoring drafter of agreement “is a secondary
standard of interpretation . . . inferior to . . . other authority revealing [the parties’]
understanding”) (internal quotation marks omitted). For the reasons we have
explained, we conclude that the agreement, read as a whole, can be given a definite
interpretation.
In sum, we affirm the trial court’s ruling that Mr. Carome was not required by
the agreement to contribute to the joint account after the parties separated in
November 2017.
III. Payments to Defined-Benefit Retirement Plan
As previously mentioned, the agreement provides for exceptions to the
parties’ obligation to contribute their earnings to the joint account. Agreement
12
§ 1.7(A). One of those exceptions is for “contributions to retirement plans or
accounts.” Id. § 1.7(A)(iii). That exception is limited, however, by § 1.7(D), which
caps such deductions for a given year to a percentage of the amount that the party
contributed to the joint account that year. Id. § 1.7(D) (“During the marriage, the
total amount of current earnings that either party may contribute in any calendar year
to retirement plans or accounts shall not exceed . . . one-half (50%) of the total
amount that he or she contributes from current earnings to Marital Accounts during
the same calendar year.”).
Relying on those provisions, Ms. Carome argues that Mr. Carome could not
properly deduct any amounts relating to retirement contributions in years in which
Mr. Carome did not pay any earnings into the joint account. To put the point
mathematically, Ms. Carome argues that 50% of $0 = $0.
Mr. Carome does not dispute that argument with respect to some retirement
payments, such as payments to his 401(k) retirement plan. Mr. Carome does dispute
that argument, however, with respect to payments into his law-firm defined-benefit
retirement plan. Mr. Carome makes two principal points. First, he argues that his
defined-benefit plan is separate property under the agreement. See Agreement
§ 1.6(iii) (Mr. Carome’s defined-benefit plan and certain other retirement plans are
13
separate property, “notwithstanding that [Mr. Carome] may make contributions to
such plans or accounts during the marriage from his earnings”). Second, he argues
that he did not make contributions to the defined-benefit plan, but rather his law firm
did. The trial court ruled for Mr. Carome on this issue. We review that ruling de
novo, Abdelrhman, 76 A.3d at 887-88, and we come to a contrary conclusion.
It is true that Mr. Carome’s defined-benefit plan is separate property under the
agreement. Agreement § 1.6(iii). That is an entirely separate question, however,
from the question whether Mr. Carome was entitled under the agreement to a
deduction from his earnings for payments made into the defined-benefit plan. The
latter question is governed by § 1.7(D) of the agreement, which places a cap on the
amount that can be deducted from earnings for “contributions to retirement plans.”
Id. § 1.7(D). Nothing in the language of that provision suggests that the cap is
limited to retirement-plan payments that are marital property rather than separate
property. Cf. id. § 1.7(A)(iii) (acknowledging that parties may use earnings to
satisfy separate obligations, including, “except as limited in Section 1.7(D),
contributions to retirement plans”) (emphasis added). To the contrary, as Mr.
Carome acknowledges, the obvious purpose of the cap is to limit the amount of
income a party can shelter in a given year from the obligation to make contributions
to the joint marital account. That purpose applies equally to all retirement payments,
14
whether those payments went to retirement accounts that would be marital property
or to retirement accounts that would be separate property.
Mr. Carome does not dispute that the payments into the defined-benefit plan
came from his earnings. Thus, the sole remaining issue is whether those payments
were “contributions” within the meaning of § 1.7(D) of the agreement. We conclude
that the payments were contributions. Section 1.6(iii) of the agreement implies as
much, stating that Mr. Carome “may make contributions to such plans or accounts
[including the defined-benefit plan] during the marriage from his earnings.”
Agreement § 1.6(iii). Section 3.2(A) of the agreement is clearer on the point,
providing that during the marriage Mr. Carome was obliged to name Ms. Carome as
the survivor beneficiary of all portions of the defined-benefit plan “derived from
contributions of earnings that [Mr. Carome] made during the marriage and before
separation.” Id. § 3.2(A). Those provisions of the agreement in our view make clear
that payments to the defined-benefit plan were understood to be contributions.
We are not persuaded by Mr. Carome’s arguments to the contrary. Mr.
Carome argues that the defined-benefit payments were mandatory, but nothing in
the language or logic of § 1.7(D) turns on whether Mr. Carome could unilaterally
determine the amount of the payment at issue. Mr. Carome also argues that
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payments to the defined-benefit plan were directly implemented by his law firm,
rather than through transactions that Mr. Carome himself made. We are
unconvinced by that distinction. It is undisputed that the payments were from Mr.
Carome’s earnings and went to his defined-benefit plan. We do not see why it is
relevant that the law firm automatically conducted those transactions on Mr.
Carome’s behalf.
Accordingly, we reverse the trial court’s ruling permitting Mr. Carome to
deduct payments to the defined-benefit plan during the years when Mr. Carome
failed to make required payments into the joint account. We remand for further
proceedings to revise the damages award accordingly.
IV. 2017 Partnership Compensation
The parties separated in November 2017. They dispute whether, under the
agreement, Mr. Carome’s earnings during the marriage should include a prorated
amount of the compensation Mr. Carome received from his law firm for that year.
Mr. Carome argues that his law firm’s profits were “speculative and contingent”
until after the end of 2017, and thus Mr. Carome did not earn anything “concrete[]”
between January and November 2017, except for the right to a share of the firm’s
16
profits paid out after the end of 2017, by which time the parties had separated. Mr.
Carome therefore contends that all of his 2017 compensation should be treated as
separate property under the agreement.
The trial court concluded that Mr. Carome’s earnings from his law firm from
January to November 2017, even if not known in their exact amount at the time of
separation, were marital property under § 1.3 of the agreement, which includes
“accrued but unpaid compensation” in the definition of “earnings.” Agreement
§ 1.3; see also id. § 1.7(A) (requiring parties to transfer earnings to marital account,
subject to exceptions). In support of that ruling, the trial court pointed out that the
agreement treats a prorated estimate of Mr. Carome’s 2010 law-firm compensation
as having accrued in July 2010 and thus as being a premarital asset rather than a
marital asset. See Agreement, Exh. B, at 2-3 n.16 (treating “[v]ery rough estimate”
of prorated 2010 law-firm compensation as “pre-marital asset”). We review the trial
court’s ruling de novo, Abdelrhman, 76 A.3d at 887-88, and we affirm.
Whatever meaning might reasonably be given to the words “accrued but
unpaid compensation” in a different agreement, this agreement treats a prorated
portion of Mr. Carome’s compensation in 2010 as an asset of Mr. Carome’s in July
2010, even though the amount of Mr. Carome’s 2010 compensation would not be
17
precisely known until 2011. We see no justification under the agreement for treating
Mr. Carome’s 2017 compensation differently. We therefore agree with the trial
court that a prorated amount of Mr. Carome’s 2017 law-firm compensation should
be treated as “accrued but unpaid compensation.”
V. Mr. Rollinger’s Expert Report
Ms. Carome argues that the trial court erred by permitting an expert, Eric
Rollinger, to testify on Mr. Carome’s behalf at trial, even though Mr. Carome did
not provide Ms. Carome with an adequate written report from the expert, as required
by Super. Ct. Dom. Rel. R. 26(a)(2)(B). We agree. We conclude, however, that the
error was harmless.
A. Factual and Procedural Background
Mr. Rollinger testified for Mr. Carome as an expert concerning the calculation
of damages, if any, owed based on Mr. Carome’s failure to make payments into the
joint account. Under Super. Ct. Dom. Rel. R. 26(a)(2)(B), Mr. Carome was required
to provide Ms. Carome with a written report from Mr. Rollinger before trial. Such
reports must contain “a complete statement of all opinions the witness will express
18
and the basis and reasons for them” and “the facts or data considered by the witness
in forming them.” Super. Ct. Dom. Rel. R. 26(a)(2)(B)(i)-(ii).
Mr. Carome provided a written report from Mr. Rollinger, apparently first in
February 2019 and then in revised form in March 2019. The report does not contain
a single complete sentence. Rather, the first page of the report is a chart reflecting
Mr. Rollinger’s overall conclusions as to how much Mr. Carome earned during the
marriage; what amounts were appropriately subtracted from those earnings under
various provisions of the premarital agreement; the amounts of Mr. Carome’s
“Contributions to the Marriage” in various categories, such as “[Mr. Carome] Direct
Contribution”; and the amounts of Mr. Carome’s payments of “Other Necessary
Expenses” in various categories, such as “Business Expense.” The chart concludes
that Mr. Carome “over-contributed” to the marriage by more than $350,000.
The second page of the report is a graph depicting Mr. Carome’s cumulative
contributions to the marriage on a monthly basis. The third page of the report is a
slightly expanded version of the first page, adding a list of the amounts of various
“Non-Counted Items,” such as “Other Living Expenses.” The report then contains
month-by-month breakdowns of the chart on the first page of the report.
19
Finally, the report contains a spreadsheet of approximately 300 pages. That
spreadsheet reflects over 20,000 individual transactions, identified by date, account,
and amount. The spreadsheet also has boxes labeled “Description,” “Memo,”
“Category,” and “Tag.” For many transactions, one or more of those boxes are not
filled in. Examples of the comments in the “Memo” box include “Non-joint portion
of 11/02/10 Invoice,” “Transfer – all joint,” and “Misuse of credit card by [Ms.
Carome].” The “Category” box often either is empty or says “Misc.” The “Tag”
box is empty for many transactions. Some of the entries in that box (such as “[Mr.
Carome] Contribution”) do indicate how Mr. Rollinger viewed the transaction for
purposes of the damages calculation, although the entries do not explain why Mr.
Rollinger reached his conclusions. Other of the entries in that box (such as “[Ms.
Carome] to Explain”) are not clear. For each transaction, there is also a box labeled
“Classification,” indicating how Mr. Rollinger categorized the transaction on his
chart. In some instances, the box refers to a provision of the premarital agreement,
suggesting without further explanation that the provision was the basis for the
categorization. In other instances (such as “Payments for Credit Cards” and “Not
Included in Calculation to Avoid Double Counting”), the rationale for the
categorization is not specified.
20
At no place does the report explain the criteria used to define the various
categories reflected in the report. The report also does not state what methods or
sources of information Mr. Rollinger used in preparing the report.
In the joint pretrial statement, which was filed in May 2019, Ms. Carome
formally objected to Mr. Rollinger’s report, arguing that the report did not comply
with Super. Ct. Dom. Rel. R. 26(a)(2)(B). Specifically, Ms. Carome argued that the
report did not indicate what documents Mr. Rollinger was relying on and did not
explain Mr. Rollinger’s opinions and his reasons for those opinions. Ms. Carome
asked that the report be excluded from evidence and that Mr. Rollinger be precluded
from testifying at trial. In the alternative, Ms. Carome asked the court (1) to require
Mr. Rollinger to supplement his report with the information required by Super. Ct.
Dom. Rel. R. 26(a)(2)(B); and (2) to permit Ms. Carome to designate a rebuttal
expert and submit a rebuttal expert report.
In the joint pretrial statement, Mr. Carome responded by arguing that Ms.
Carome’s objection to Mr. Rollinger’s report was belated, the report was adequate,
and any deficiency in the report did not prejudice Ms. Carome.
21
On the first day of trial, Ms. Carome renewed her objection to Mr. Rollinger’s
report. The trial court overruled Ms. Carome’s objection without explanation.
Mr. Rollinger testified at length at trial. His expert report was also admitted
into evidence. During the first three days of his testimony, Mr. Rollinger explained
(1) the materials he relied on in reaching his conclusions (which included various
documents, oral conversations with Mr. Carome, and notes kept by Mr. Carome);
(2) the meaning of various of the terms used in the report (such as “Non-Counted
Items”); and (3) the methods and reasoning used in reaching the conclusions
reflected in the report. Ms. Carome cross-examined Mr. Rollinger extensively at
that point on the bases for his opinions.
There was a two-month break in the trial, and Ms. Carome then resumed her
cross-examination of Mr. Rollinger, which extended for parts of two additional days.
Ms. Carome presented two reports from her own expert, who also testified at
trial. Ms. Carome’s expert concluded that Ms. Carome was entitled to over $2.6
million in damages.
22
In returning its verdict, the trial court largely accepted the legal framework
advocated by Mr. Carome, assessing damages by calculating Mr. Carome’s earnings
between 2013 and November 2017 and then subtracting “authorized subtractions”—
those falling within the exceptions enumerated in § 1.7(A) of the agreement—as
well as other amounts that were “necessary expenses” paid by Mr. Carome for the
benefit of Ms. Carome. The trial court accepted some of Mr. Rollinger’s factual
conclusions but also made substantial adjustments to Mr. Rollinger’s calculations,
for a variety of reasons, including that Mr. Rollinger had a “quite flimsy” basis for
categorizing certain expenses as having been for Ms. Carome’s benefit. The trial
court ultimately found damages of approximately $440,000 due to Mr. Carome’s
breach of his obligation to make payments into the joint account.
On appeal, this court sua sponte remanded the record for the trial court to
explain its decision to overrule Ms. Carome’s objection to Mr. Rollinger’s report.
On remand, the trial court concluded that the report complied with the requirements
of Rule 26(a)(2)(B). Specifically, the trial court stated that the report “sets forth a
very detailed and comprehensive statement of Mr. Rollinger’s conclusions and sets
forth minutely specific bases for the opinions.” In the alternative, the trial court
ruled that any deficiencies in the report were substantially justified and harmless.
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B. Compliance with Super. Ct. Dom. Rel. R. 26(a)(2)(B)
We review the trial court’s ruling that Mr. Rollinger’s report met the
requirements of Super. Ct. Dom. Rel. R. 26(a)(2)(B) deferentially, to determine
whether the trial court acted within the scope of its discretion. See generally, e.g.,
Weakley v. Burnham Corp., 871 A.2d 1167, 1179 (D.C. 2005) (“We review
discovery orders for abuse of discretion.”). See also, e.g., Harmon v. Ga. Gulf Lake
Charles L.L.C., 476 F. App’x 31, 36 (5th Cir. 2012) (trial court rulings under Fed.
R. Civ. P. 26(a)(2)(B) are reviewed for abuse of discretion). Super. Ct. Dom. Rel.
R. 26(a)(2)(B) is identical to Fed. R. Civ. P. 26(a)(2)(B), so we give weight to cases
interpreting the federal rule. See generally, e.g., Segreti v. DeIuliis, 263 A.3d 441,
444 (D.C. 2021) (when interpreting Superior Court rule, court looks for guidance to
federal cases interpreting “substantially identical” federal rule) (internal quotation
marks omitted).
As previously noted, Super. Ct. Dom. Rel. R. 26(a)(2)(B) generally requires
expert reports to include, among other things: “(i) a complete statement of all
opinions the [expert] will express and the basis and reasons for them; [and] (ii) the
facts or data considered by the [expert] in forming them.” This court does not appear
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to have issued any opinions interpreting either that language or identical language in
Super. Ct. Civ. R. 26(a)(2)(B). We therefore consider pertinent federal authority.
“When interpreting a Superior Court rule, we frequently find guidance in the
advisory committee’s notes to the corresponding federal rule.” C.R. Calderon
Constr., Inc. v. Grunley Constr. Co., 257 A.3d 1046, 1059 (D.C. 2021) (internal
quotation marks omitted). The language at issue was added to Fed. R. Civ. P.
26(a)(2) in 1993. See Fed. R. Civ. P. 26(a)(2) advisory committee’s note to 1993
amendment. The advisory committee explained that the amended rule “imposes an
additional duty to disclose information regarding expert testimony sufficiently in
advance of trial that opposing parties have a reasonable opportunity to prepare for
effective cross examination and perhaps arrange for expert testimony from other
witnesses.” Id. The advisory committee stated that disclosure under the prior rule
had often been “sketchy and vague.” Id. The new rule, in contrast, required “a
detailed and complete report, stating the testimony the witness is expected to present
during direct examination, together with the reasons therefor.” Id. In other words,
the report should “set forth the substance of the direct examination.” Id.In our view, Mr. Rollinger’s report fell well short of the requirements of
Super. Ct. Dom. Rel. R. 26(a)(2)(B). The report has no complete sentences, says
25
nothing explicit about the sources of information Mr. Rollinger relied upon, does not
explain the methods Mr. Rollinger used in making calculations, and contains a
number of unexplained or cryptic terms and categories. Mr. Carome cites no case
holding that a comparable report was adequate, and we are aware of no such case.
To the contrary, comparable reports appear to have consistently been found
inadequate. See, e.g., Martinez v. Sw. Cheese Co., No. CV 12-0660, 2013 WL
12180705, at *2 (D.N.M. Mar. 4, 2013) (finding expert report inadequate because
report contained “several pages of charts and calculations without any context” and
failed to “fully explain[] [the charts’] relevance, their calculations, or their sources”);
Great White Bear, LLC v. Mervyns, LLC, No. 06 CV 13358, 2008 WL 2220662, at
*3 (S.D.N.Y. May 27, 2008) (“A damage figure in an expert report cannot satisfy
[federal] Rule 26(a)(2)(B) simply by stating a conclusory figure and then attaching
documents that purportedly support that figure. Rather, the report must supply actual
calculations with detailed and complete information elucidating how the expert
arrived at the damage figure.”). See generally, e.g., R.C. Olmstead, Inc. v. CU
Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (upholding exclusion of expert
report that failed to adequately explain expert’s “line of reasoning”; “[e]xpert reports
must include how and why the expert reached a particular result, not merely the
expert’s conclusory opinions”) (internal quotation marks omitted).
26
In sum, we conclude that the trial court acted outside its discretion in
concluding that Mr. Rollinger’s report met the requirements of Super. Ct. Dom. Rel.
R. 26(a)(2)(B).
C. Harmlessness
Mr. Carome’s failure to comply with Super. Ct. Dom. Rel. R. 26(a)(2)(B) is
not a basis for relief if that failure was harmless. Super. Ct. Dom. Rel. R. 37(c)(1)
(failure to comply with Super. Ct. Dom. Rel. R. 26(a) precludes admission of
testimony of witness unless failure was “substantially justified or harmless”). See
generally Super. Ct. Dom. Rel. R. 61 (“Unless justice requires otherwise, no error
in admitting . . . evidence . . . is ground for granting a new trial, or for vacating,
modifying or otherwise disturbing a judgment or order. At every stage of the
proceeding, the court must disregard all errors and defects that do not affect any
party’s substantial rights.”); Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546,
567 (D.C. 2001) (error does not affect substantial rights if court can “say[] with fair
assurance” that “judgment was not substantially swayed by the error”) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). The burden of establishing
harmlessness is on the party who failed to comply with the rule. See, e.g., Wilson v.
Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (“[I]t is the obligation
27
of the party facing sanctions for belated disclosure to show that its failure to comply
with [Fed. R. Civ. P. 26(a)] was either justified or harmless . . . .”); Hinton v. United
States, 979 A.2d 663, 686 (D.C. 2009) (en banc) (under Kotteakos test for
harmlessness, burden of showing harmlessness “is on the beneficiary of an error”).
As noted, the trial court ruled on remand that any deficiencies in Mr.
Rollinger’s report were harmless. It is not entirely clear whether our review of that
ruling is de novo or deferential. Compare Davis v. United States, 564 A.2d 31, 42
(D.C. 1989) (en banc) (in context of constitutional error, court concludes that
appellate court “owe[s] no deference to the trial court’s views concerning
harmlessness”), with Prisco v. Stroup, 947 A.2d 455, 462 (D.C. 2008) (court of
appeals reviews for abuse of discretion trial court’s determination whether to impose
sanction under Super. Ct. Dom. Rel. R. 37(c)), and Bresler v. Wilmington Tr. Co.,
855 F.3d 178, 190 (4th Cir. 2017) (explaining that, under Fed. R. Civ. P. 37(c)(1),
“[d]istrict courts are accorded broad discretion in determining whether a party’s
nondisclosure or untimely disclosure of evidence is substantially justified or
harmless”) (internal quotation marks omitted). The parties do not explicitly address
that question, and we need not decide it. Rather, even assuming favorably to Ms.
Carome that our review is de novo, we conclude that the trial court’s error was
harmless.
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Our reasoning differs from that of the trial court. In our view, the critical
points are that Ms. Carome had a full opportunity to cross-examine Mr. Rollinger,
the trial recessed for approximately two months, and Ms. Carome then had another
full opportunity to cross-examine Mr. Rollinger. Granting a continuance can be an
appropriate response to a party’s failure to provide required pretrial discovery. See,
e.g., Weiner v. Kneller, 557 A.2d 1306, 1310 n.5 (D.C. 1989) (“Exclusion of
evidence is a severe sanction. Under [Super. Ct. Civ. R.] 37 the Superior Court may
avail itself of a lesser sanction, such as a continuance, to allow the surprised party to
examine the record, possibly resume discovery, and prepare some response to the
unexpected testimony.”) (citation omitted); cf. Workman v. United States, 255 A.3d
971, 976 (D.C. 2021) (under Super. Ct. Crim. R. 16, “remedies for [a] discovery
violation include [the] granting of [a] continuance”). In arguing that she was
prejudiced by the inadequacies of Mr. Rollinger’s report, Ms. Carome lists various
actions she could have taken if the report had been adequate, including possibly
moving to exclude Mr. Rollinger’s report and testimony as unreliable, trying to track
down original documentation of transactions, and presenting evidence of
contributions she made to the marriage. Ms. Carome did ultimately move to strike
Mr. Rollinger’s report and testimony as “subjective, unreliable[,] and riddled with
errors.” Ms. Carome has not, however, renewed that challenge in this court, instead
focusing solely on her discovery claim. We see no prejudice to Ms. Carome’s ability
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to challenge the substance of Mr. Rollinger’s testimony and report. As to Ms.
Carome’s two other assertions of prejudice, the two-month break in the trial was
seemingly ample to permit Ms. Carome to take whatever steps she wished to take to
further investigate and respond to Mr. Rollinger’s report and testimony. Cf. Weiner,
557 A.2d at 1310 n.5 (explaining that continuance can be sufficient remedy to
address discovery violation).
We therefore conclude that the trial court’s error was not unfairly prejudicial
to Ms. Carome, because in the circumstances of this case Ms. Carome had a full
opportunity to address Mr. Rollinger’s report and testimony.
VI. Proof of Actual Damages
Mr. Carome argues that Ms. Carome failed to prove that she suffered actual
damages as a result of Mr. Carome’s breach of the premarital agreement. We are
unpersuaded by that argument.
To remedy a breach of contract, the trial court generally may award the non-
breaching party expectation damages: the amount that would place the non-
breaching party in the position the non-breaching party would have had if the
30
breaching party had fulfilled its obligations under the contract. Caesar v.
Westchester Corp., 280 A.3d 176, 191 (D.C. 2022). Under the premarital agreement
in this case, Ms. Carome was entitled to half of the assets contained in the joint
account upon separation. Agreement § 5.2(A). The trial court thus arguably could
have awarded Ms. Carome damages in an amount equal to half of the amount that
Mr. Carome should have contributed to the joint account. The trial court did not
take that approach, however, instead decreasing the amount of Ms. Carome’s
damages to reflect payments that the trial court determined Mr. Carome had made
toward “necessary joint expenses and for Ms. Carome’s benefit.” Ms. Carome has
not challenged that ruling in this court, and we therefore have no reason to consider
whether Ms. Carome actually was entitled to more extensive damages than she was
awarded.
For his part, Mr. Carome does not present a specific challenge to the trial
court’s calculation of the amount of the offset to reflect payments Mr. Carome made
for Ms. Carome’s benefit. Instead, Mr. Carome argues that Ms. Carome should have
been required to prove specific additional concrete injuries she suffered as a result
of Mr. Carome’s breach. We see no basis for that argument. See, e.g., Caesar, 280
A.3d at 191 (actual costs suffered by non-breaching party “of no consequence”
where non-breaching party was properly awarded expectation damages).
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In sum, (1) we affirm the trial court’s ruling that Mr. Carome’s obligation to
contribute to the joint account ended on the date of separation; (2) we reverse the
trial court’s ruling that Mr. Carome was entitled to deduct payments made to the
defined-benefit plan in years when Mr. Carome did not contribute to the joint
account; (3) we affirm the trial court’s ruling that Mr. Carome’s earnings under the
agreement included a prorated share of Mr. Carome’s 2017 law-firm compensation;
(4) we hold that the trial court acted outside its discretion in concluding that Mr.
Rollinger’s report complied with the requirements of Super. Ct. Dom. Rel. R.
26(a)(2)(B); (5) we hold that that error was harmless; and (6) we uphold the trial
court’s ruling that Ms. Carome was not required to prove actual costs she suffered
as a result of Mr. Carome’s breach of the agreement, beyond the loss of the financial
contributions Mr. Carome was required to make under the agreement. We therefore
vacate the judgment and remand the case to the trial court for further proceedings.
So ordered.