Dickason v. Dickason ( 1970 )

QUINN, Judge, Retired

(dissenting).

I not only disagree with the result reached by the majority, but with the method used to reach it. Therefore, I respectfully dissent.

The jurisdiction of the Domestic Relations Branch of the Court of General Sessions to “award and apportion” property¹ is limited to that held in “joint tenancy or tenancy by the entirety.” D.C.Code 1967, § 16-910. Under D.C.Code 1967, § 11-1141(a) (9), this branch of the trial court has jurisdiction to “determine and adjudicate” the property rights of the parties.² Reading the two jurisdictional grants together, the determination and adjudication to be made in this case is whether there is jointly held property. If there is such property, the Domestic Relations Branch may award and apportion it. If there is no jointly"'held property, the court’s jurisdiction in this regard is over. ³

Thus, the function of the trial court in the first instance was to determine whether there was in fact jointly held property. The court, in its findings of fact held: “That at the hearing of this action, there is no jointly held property between the parties of record.” The majority reads “of record” as a determination by the trial court that it had no jurisdiction under § 16-910 of the Code to look beyond record title. This reading goes against the entire concept of judicial review.

The jurisdiction of this court is limited to a determination of whether there was sufficient competent evidence in the record to support the finding of fact.⁴ Error is not presumed; in fact, the opposite presumption is the correct one.⁵ It is not the function of this court to “guess at” the reason a trial court finds a fact. Joint ownership was not found to exist. The review here is: Does the record support the finding ?

The record shows that two of the properties in question were held solely in the name of the appellee and one in the name of appellant. Appellant urges here, as he did below that there was an agreement to transfer these properties to the joint ownership of the two parties. It is obvious from the record that appellant was on a general “fishing expedition” to find the “alleged agreement”. The majority’s statement, in sua sponte raising the Statute of Frauds, that appellant’s proffer did not describe the agreement as being in writing is not borne out by the record. The proffer was that an agreement existed, and that it was in the possession of appellee or her counsel. The court at that juncture requested that any agreement between the parties be produced by appellee or her counsel. The appellee testified under oath that she did not know of such an agreement. Her counsel represented to the court that he had no knowledge of any agreement.

The majority remands this case for a determination whether appellant can show the agreement or other evidence of the agreement’s existence. No showing of the agreement was made by appellant at the original trial. Indeed, no proffer was made of the agreement nor of any “other evidence” of the agreement.⁶ Thus, the proffer was in itself insufficient.⁷ It is not the function of this court to provide a litigant with unlimited chances to prove his case.

The finding of fact as to ownership is sustained by the record, and the case should be affirmed.

1 . Argent v. Argent, 130 U.S.App.D.C. 46, 48, 396 F.2d 695, 697 (1968).

2 . Id. at 697.

3 . The only allegation in the case at bar is one of joint ownership. Thus, the question of any other legal or equitable interest is not before us, nor was it before the trial court. See Mazique v. Mazique, 123 U.S.App.D.C. 48, 51, 356 F.24 801, 804, cert. denied, 384 U.S. 981, 86 S.Ct. 1882, 16 L.Ed.2d 691 (1966); Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 195, 188 F.2d 31, 33 (1951); Richardson v. Richardson, 72 App.D.C. 67, 69, 112 F.2d 19, 21 (1940).

4 . See D.C.Code 1967, § 17-305 (a); Freas v. Gitomer, D.C.App., 256 A.2d 573 (1969); Hart v. Cherner, D.C.Mun.App., 178 A.2d 919 (1962).

5 . Packard v. United States, D.C.Mun.App., 77 A.2d 19, 21 (1950) (and cases cited therein).

6 . Appellant in asserting the existence of an agreement urged that appellee in four previous and the one pending domestic relations actions alleged in her pleadings the joint ownership of the properties. The record shows this assertion to be without merit. The only allegation made by the appellee in this case was that the properties had been purchased jointly. All of the evidence showed that the properties were not now so owned.

7 .Pitts v. United States, D.C.Mun.App., 95 A.2d 588, 590 (1953). See Wilson v. United States, D.C.App., 261 A.2d 513 (decided January 28, 1970) (and cases cited therein).