“Child custody cases present complex factual situations, and we necessarily rely on the trial court’s careful balancing of the various factors that may impact the child.”
How later courts described this case
- “Child custody cases present complex factual situations, and we necessarily rely on the trial court’s careful balancing of the various factors that may impact the child.”
- affirming award of husband’s separate property to wife where wife lived in property for twenty years, maintained and preserved it, rendered homemaker services, and cared for adult child with a disability
- “stability and continuity” are important considerations in deciding custody petitions involving requests for geographic relocation
- “[W]e have not squarely decided 19 whether such intangible contributions alone can create an equitable interest in real property.”
Written by the judges who cited it.
The opinion
Notice: This opinion is subject to formal revision before publication in the
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Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-FM-976 & 18-FM-1153
BRIAN D. MACKLIN, APPELLANT,
V.
JANAI T. JOHNSON, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DRB-2488-16)
(Hon. Julie H. Becker, Trial Judge)
(Argued September 29, 2020 Decided February 10, 2022)
Brian D. Macklin, pro se.
Cali Cope-Kasten, with whom Henry J. Brewster was on the brief, for
appellee.
Before GLICKMAN and DEAHL, Associate Judges, and RUIZ, Senior Judge.
Opinion of the court by Associate Judge DEAHL.
Dissenting opinion by Senior Judge RUIZ at page 33.
DEAHL, Associate Judge: Brian Macklin and Janai Johnson were married
for thirteen years and have five children together. Following divorce proceedings,
2
the Superior Court of the District of Columbia ordered that the parties share joint
physical and legal custody of their children while granting Ms. Johnson primary
custody and final decision-making authority. It also awarded Ms. Johnson a 40%
equitable interest in the home the family shared for more than a decade, even
though Mr. Macklin purchased it individually three years before the marriage. On
appeal, Mr. Macklin challenges the court’s custody ruling. He also contends the
court erred in granting Ms. Johnson any equitable interest in the home and, in the
alternative, that it erred by failing to deduct the pre-marital equity he had accrued
in the home before apportioning her interest in it.
On the issue of custody, we see no reversible error. While the facts might
have supported a custody arrangement more favorable to Mr. Macklin, the
Superior Court carefully scrutinized the record and drew a reasonable conclusion
after considering the appropriate factors, so we are bound to uphold its ruling. As
to the property distribution, we hold as a matter of first impression that substantial
“homemaker” services are a permissible basis for granting a spouse an equitable
interest in the other’s separately-held real property and detect no error in granting
Ms. Johnson an equitable interest in the family home on that basis. Finally, while
Mr. Macklin is correct that the trial court was obliged to deduct any pre-marital
equity he had in the home before awarding Ms. Johnson an interest in the
3
remainder, the trial court did not contravene that approach. It simply found Mr.
Macklin had no pre-marital equity in the home because all of its appreciation
occurred during the marriage—rather than beforehand, as Mr. Macklin
maintains—and because Mr. Macklin’s outstanding mortgage debt on the home
exceeded its value at the time the parties married. In short, every bit of equity in
the home was marital equity under the trial court’s reasoning. That conclusion is
adequately supported by the record. We thus affirm the trial court’s judgment.
I.
Mr. Macklin purchased his house—later the family home—in February
2002, and he has remained the sole titleholder of the property at all relevant times.
The house is located at 55 Quincy Place NW. Shortly after buying it, Mr. Macklin
undertook substantial renovations to convert it from a multi-unit to a single-family
house. That same year he met Ms. Johnson. At the time, he owned and operated a
valet parking business, while she worked as an administrative assistant and
waitress. After a year or so of dating, in 2003, they had their first of five children,
A.M., and Ms. Johnson moved in with Mr. Macklin shortly thereafter, around
January 2004. They had four more children over the next decade: K.M., R.M.,
C.M., and I.M. The parties married on April 19, 2005.
4
While Ms. Johnson worked four to five years during the marriage, she spent
the bulk of their marriage caring for the children and the household. She would
typically do the cooking, cleaning, and laundry, plus she would transport the
children to and from school. As marriages sometimes go, theirs hit a rough patch
in 2010 and Ms. Johnson began a months-long extramarital affair. She moved out
of the family home for a time, but later moved back in and the parties reconciled
toward the end of 2010. Ms. Johnson began another affair in 2015, and when Mr.
Macklin learned of it, they had an altercation resulting in Mr. Macklin moving out
of the home while Ms. Johnson stayed with the children. 1 Several months later,
Mr. Macklin returned to the home and Ms. Johnson and the children moved out.
1
The trial court recounted evidence that, during the marriage, both “parties
were physically violent toward each other on several occasions and that each bears
some responsibility for this aspect of their relationship.” Because the court did not
materially rely on these incidents in rendering its decision, we do not discuss them
at length here. There was also some evidence that Mr. Macklin was physically
violent toward the children on occasion, though for the same reason, we do not
detail the evidence here. Just one purported incident merits further discussion:
The trial court found that on one occasion in or around 2017, Mr. Macklin “threw”
his daughter K.M. against a wall. The court credited “to a point” Mr. Macklin’s
claim that, rather than throwing her into a wall, he merely grabbed her by the shirt,
which caused her to misstep and fall. Still, it found that, whatever happened, Mr.
Macklin applied force against his daughter “that was neither reasonable in manner
nor moderate in degree.”
5
Both parties filed for divorce in late 2016. Following a six-day bench trial,
the Superior Court granted the parties’ mutual request for an absolute divorce. The
court ordered joint physical and legal custody of the children while granting Ms.
Johnson primary custody and final decision-making authority over them. By the
order’s terms, the children would spend every other weekend with Mr. Macklin—
from Thursday afternoon to Monday morning—with two caveats. A.M. requested
additional time with his father, which the court granted by extending the every-
other-weekend visits to Tuesday morning in his case. K.M., on the other hand, had
a strained relationship with her father and did not want to spend weekends with
him, so the court did not order her to do so. It did, at Mr. Macklin’s request, order
that her visitation “take place in the context of family therapy.”
The court also awarded Ms. Johnson a 40% equitable interest in the home.
In calculating that amount, the court took the home’s market value at the time of
divorce ($784,000) and deducted the existing mortgage on the property ($227,000),
as well as the estimated sales costs (6% of $784,000, or $47,040), arriving at a
“cash-out” value of $509,960. It then awarded Ms. Johnson 40% of this figure, or
$203,984. The Court explained that it credited Ms. Johnson’s expert’s testimony
that “essentially all of the appreciation” in the home “occurred during the
marriage.” That is because the mortgage balance ($227,000) was greater than the
6
price Mr. Macklin had paid for the home in 2002 ($225,000), which—based on the
record—was the apparent value of the home when the parties married. In other
words, all of the equity in the home accrued during the marriage and, in fact, Mr.
Macklin owed about $2,000 more on his mortgage than what the home was worth
at the time the parties married.
Mr. Macklin now brings this timely appeal.
II.
We first examine the child custody ruling. Mr. Macklin argued at trial that
an equally shared schedule would best serve the children’s interest, which is of
paramount concern when fashioning custody arrangements. See D.C. Code § 16-
914(a)(1)(A) (2012 Repl.). But the trial court, while ordering that the parties share
joint legal and physical custody of the children, 2 agreed with Ms. Johnson that the
2
“‘Legal custody’ means legal responsibility for a child. The term ‘legal
custody’ includes the right to make decisions regarding that child’s health,
education, and general welfare, the right to access the child’s educational, medical,
psychological, dental, or other records, and the right to speak with and obtain
information regarding the child from school officials, health care providers,
counselors, or other persons interacting with the child.” D.C. Code § 16-
914(a)(1)(B)(i). “‘Physical custody’ means a child’s living arrangements. The
term ‘physical custody’ includes a child’s residency or visitation schedule.” Id.
§ 16-914(a)(1)(B)(ii).
7
children were best off with her as the primary physical custodian, granting Mr.
Macklin the limited visitation rights outlined above. Mr. Macklin challenges this
ruling on two grounds. First, he contends that “50/50 custody is presumed in cases
with no abuse,” and that the Superior Court failed to heed that purported
presumption. Second, he asserts that the court abused its discretion in awarding
Ms. Johnson primary physical custody because “the findings of the court do not
match the facts of this case.” We review these arguments in turn and conclude that
neither merits reversal.
A.
Mr. Macklin first alleges the trial court erroneously diverged from a
presumption of equal custody. We review such challenges to a trial court’s
application of legal standards de novo. See In re T.H., 898 A.2d 908, 911 (D.C.
2006). Mr. Macklin’s argument fails because it rests on a misunderstanding of the
controlling law. Equal custody is not the “presumed” arrangement in the District
in the absence of domestic abuse, as Mr. Macklin asserts. Rather, joint custody is
presumptively in the children’s best interests in the absence of one or more intra-
8
family offenses. 3 See D.C. Code § 16-914(a)(2). And, contrary to Mr. Macklin’s
position, joint custody is not synonymous with equal, or “50/50,” custody.
We made this clear in Estopina v. O’Brian, 68 A.3d 790 (D.C. 2013), where
we explained that a “custody arrangement constitutes ‘joint physical custody’ so
long as it involves some sort of shared custody, such as primary physical custody
awarded to one parent and visitation rights to another.” Id. at 792; see also
Hutchins v. Compton, 917 A.2d 680, 682 (D.C. 2007) (“Joint physical custody
may, but need not, be on a 50/50 basis.”) (cleaned up). As in Estopina, the trial
court’s custody order granting the parties shared custody, while awarding one
parent primary physical custody and the other visitation, satisfies § 16-914(a)(2)’s
definition of “joint custody.” The trial court thus did not fail to honor the
presumption in favor of joint custody. That is exactly what it awarded.
B.
Mr. Macklin next argues that the trial court’s custody determination, and its
factual findings, are not supported by the record. We accord “great deference” to a
3
As recounted supra note 1, there was some evidence of intra-family
violence, but it did not factor into the trial court’s custody determination.
9
trial court’s child custody determinations, Prost v. Greene, 652 A.2d 621, 626
(D.C. 1995), which reach this court “with a presumption of correctness.” In re
C.T., 724 A.2d 590, 597 (D.C. 1999). We review the trial court’s findings of fact
for clear error, In re A.C.G., 894 A.2d 436, 439 (D.C. 2006), and will “reverse a
trial court’s custody decision only upon a finding of an abuse of discretion,”
Estopina, 68 A.3d at 793. In applying these standards, we first look to whether the
trial court considered “all relevant factors and no improper factor,” and then we
“evaluate whether the decision is supported by substantial reasoning . . . drawn
from a firm factual foundation in the record.” In re A.M., 589 A.2d 1252, 1257-58
(D.C. 1991) (internal quotation marks omitted). That the record might have
supported a different outcome is no basis for upending the trial court’s decision.
Prost, 652 A.2d at 626.
In this matter, the trial court weighed all appropriate factors without
considering any inappropriate one. Indeed, the court carefully walked through all
seventeen factors necessary to determining the children’s best interests under D.C.
Code § 16-914(a)(3). Three factors in particular animated the court’s physical
custody decision:
(A) the wishes of the child as to his or her custodian,
where practicable;
10
(B) the wishes of the child’s parent or parents as to the
child’s custody; [and]
(C) the interaction and interrelationship of the child with
his or her parent or parents, his or her siblings, and any
other person who may emotionally or psychologically
affect the child’s best interest.
Id.
Relevant to the first two factors, all three children who testified, as well as
Ms. Johnson, expressed a desire to maintain their existing custody arrangement,
under which Ms. Johnson had primary physical custody of the children while Mr.
Macklin had more limited visitation rights. Ms. Johnson’s “central reason” for
seeking primary physical custody on a permanent basis was “continuity.” “[S]he
testified that she wishes to keep the current custody schedule because she believes
it is working well for the children, and she prefers not to disrupt the routine they
have finally been able to establish.” The trial court agreed: “[G]iven the upheaval
the family has experienced over the past two years,” “stability is an important
consideration.” Mr. Macklin had a different preference, as pertinent to the second
factor, which the trial court acknowledged. But his preference ultimately could not
overcome the other factors favoring the ordered custody arrangement. The third
factor likewise supports the court’s decision. Despite finding that both parents had
generally strong relationships with the children, the court was troubled by its
11
finding that the parties’ daughter K.M. had no desire to see her father or have any
relationship with him.
The facts supporting these findings all have a firm factual foundation in the
record. See In re A.M., 589 A.2d at 1257-58. In fact, Mr. Macklin does not
dispute that the children preferred to maintain the then-existing custody
arrangement. And the court’s chief rationales for awarding Ms. Johnson primary
physical custody—honoring the children’s wishes, and maintaining a stable
environment for them—constitute “substantial reasoning.” See P.F. v. N.C., 953
A.2d 1107, 1117 (D.C. 2008) (courts are “obliged to include” children’s wishes in
their calculus); Estopina, 68 A.3d at 794 (“stability and continuity” are important
considerations in deciding custody petitions involving requests for geographic
relocation).
The court carefully and thoroughly evaluated each of the remaining fourteen
factors set forth in § 16-914(a)(3), and made findings as to each of them, as
required. See Dumas v. Woods, 914 A.2d 676, 679 (D.C. 2007). It deemed four
factors inapplicable or marginally applicable, while signaling that none of the
remaining factors weighed strongly in either party’s favor.
12
Mr. Macklin faults the trial court for relying on Ms. Johnson’s accusations
of domestic abuse in rendering its custody order, as he contends they were
unsubstantiated. We might interpret this argument in either of two ways, but
neither is persuasive. To the extent Mr. Macklin claims the court’s custody ruling
is itself predicated on Ms. Johnson’s allegations of abuse, we disagree. The court
expressly did not rely on these allegations in rendering its custody decision. See
supra note 1. While it mentioned them in its findings, it ultimately could not say
that they supported either party’s claim for custody.
We might alternatively construe Mr. Macklin’s argument to be that the trial
court erred by essentially extending a temporary custody order Ms. Johnson
secured through false accusations, in Mr. Macklin’s telling. For several reasons,
that argument fails as well. The temporary custody order, entered December 15,
2016, makes no mention of any allegation of abuse, and the record from that
proceeding is not part of the record on appeal. See D.C. App. R. 10(b)(2) (“If the
appellant intends to urge on appeal that a finding or conclusion is unsupported by
the evidence or is contrary to the evidence, the appellant must include in the record
a transcript of all evidence relevant to that finding or conclusion.”) (citation
omitted). More fundamentally, Mr. Macklin failed to identify any legal error that
the trial court committed by extending the temporary custody arrangement, and we
13
perceive none. The court acted within its discretion to conclude that the existing
arrangement was in the children’s best interests irrespective of the rationale
underlying the prior temporary custody order.
Mr. Macklin further charges that the trial court failed to consider evidence
involving Ms. Johnson’s marijuana use and extramarital affairs, but this point is
equally unavailing. The court acknowledged Ms. Johnson’s personal failings and
found that they contributed to the deterioration of the parties’ marriage. Though
Mr. Macklin testified that the affairs diverted her from her parenting
responsibilities, the trial court apparently determined they did not justify a different
custody arrangement from the one ordered. We do not think it abused its
discretion by doing so. See Johnson v. Washington, 756 A.2d 411, 418 (D.C.
2000) (“Child custody cases present complex factual situations, and we necessarily
rely on the trial court’s careful balancing of the various factors that may impact the
child.”).
In sum, our review of the record reveals no “clearly erroneous findings of
fact,” and we conclude that the court’s ultimate custody decision is supported by a
careful analysis of the seventeen statutory factors. We acknowledge that some
judges might have weighed the relevant facts and factors differently, but our role is
14
not to reweigh the evidence. See Dorsett v. Dorsett, 281 A.2d 290, 292 (D.C.
1971) (“We cannot say that in this instance the trial judge abused his discretion,
even though other evidence in the record might have led us to uphold a decision
going the opposite way.”). We are satisfied that the trial court did not abuse its
discretion in granting Ms. Johnson primary physical custody of the parties’ five
children.
Finally, we turn to the trial court’s legal custody decision granting Ms.
Johnson final decision-making authority over matters on which the parties could
not agree. While the court rejected Ms. Johnson’s request for sole legal custody, it
determined that one parent must have final authority, in light of the parties’ “very
limited capacity to reach joint decisions about the children’s welfare.” Without
assigning blame for this inability to reach joint decisions, the court found Ms.
Johnson the “more practical choice given that the children will be with her the
majority of the time.” Importantly, in making custody rulings, § 16-914(a) directs
the court to consider “the capacity of the parents to communicate and reach shared
decisions affecting the child’s welfare.” D.C. § 16-914(a)(3)(6). The court did not
abuse its discretion by considering this factor and granting Ms. Johnson final
decision-making authority based on sheer practicality. We accordingly affirm the
trial court’s physical and legal custody determinations.
15
III.
We next examine the Superior Court’s distribution of equity in the family
home Mr. Macklin purchased individually prior to the marriage. Mr. Macklin
challenges the order on three bases. He first suggests that non-financial
homemaker contributions are not an appropriate basis to award an equitable
interest in separately-held property. Next, he argues that even if homemaker
services might be a basis for awarding the non-titled spouse an equitable interest in
separately-owned property, the trial court’s finding that Ms. Johnson rendered
substantial services in that respect was unsupported by the record. Finally, he
argues that even if he is wrong on the first two points, the court erroneously failed
to deduct his pre-marital equity in the home before computing Ms. Johnson’s
interest in it, which had the effect of inflating her award at his expense. We
address these arguments in turn.
A.
In distributing property upon divorce, the District of Columbia Marriage and
Divorce Act requires the trial court to first “assign to each party his or her sole
separate property acquired prior to the marriage.” D.C. Code § 16-910(a). The
court must then “value and distribute all other property and debt accumulated
16
during the marriage . . . in a manner that is equitable, just, and reasonable.” Id. §
16-910(b). Mr. Macklin argues that the trial court contravened the Marriage and
Divorce Act by granting Ms. Johnson an interest in his separately-owned home. In
other words, he contends the trial court committed legal error when it failed to
assign him his “sole or separate property acquired prior to the marriage,” and
mistakenly treated his home as marital property subject to division between the
parties.
The premise of Mr. Macklin’s argument is mistaken. The trial court did not
treat the family home as marital property, but instead correctly determined that the
house qualifies as Mr. Macklin’s “sole separate property” under § 16-910(a), so
that he alone had an ownership interest in it. See Ealey v. Ealey, 596 A.2d 43, 47
(D.C. 1991) (real property “acquired prior to the marriage remains the separate and
sole property of the acquiring spouse” even where “the non-purchasing spouse has
contributed marital funds to pay off the mortgage”). Rather than granting Ms.
Johnson an ownership interest in the house under § 16-910(a), the court invoked its
general equity power to grant her an equitable interest in the property. See Bansda
v. Wheeler, 995 A.2d 189, 199-200 (D.C. 2010). An equitable interest “encumbers
the property, but it does not give the [non-purchasing spouse] any ownership or
possessory interest.” Yeldell v. Yeldell, 551 A.2d 832, 836 (D.C. 1988) (collecting
17
cases). Ms. Johnson does not have any say in what Mr. Macklin does with the
property or in how he disposes of it (aside from enforcing her lien); nor does she
have any claim to any part of the property’s future appreciation. Those are rights
that remain with the property’s sole owner, Mr. Macklin, as the statute demands.
The distinction is critical. Our cases have long recognized courts’ equitable
power to encumber non-marital property in this manner. In Brice v. Brice, 411
A.2d 340 (D.C. 1980), we acknowledged that our courts are permitted to confer an
equitable interest in one spouse in property owned by the other upon dissolution of
the marriage, where “‘some right or element of ownership, legal or equitable,’
could be found in the spouse who did not hold title.” Id. at 343 (quoting Wheeler
v. Wheeler, 188 F.2d 31, 33 (D.C. Cir. 1951)). We further noted that by enacting
the Marriage and Divorce Act, the D.C. Council evinced no intent to “abolish or
restrict this long-standing approach.” Brice, 411 A.2d at 343. Indeed, the
Marriage and Divorce Act largely codified existing case law, which served to
liberalize divorce law in the District. See generally Samuel Green & John V.
Long, The Real and Illusory Changes of the 1977 Marriage and Divorce Act, 27
CATH. U. L. REV. 469 (1978). Thus, following that Act’s passage, courts in our
jurisdiction continue to have “broad discretion” to grant non-purchasing spouses an
equitable interest in separately-owned property. Brice, 411 A.2d at 343.
18
Eight years later in Yeldell, we went a step further. There, we affirmed the
trial court’s decision to grant one spouse an equitable interest in the other’s house
on account of the former’s $50,000 in contributions toward the mortgage on the
property, twice the value of the latter’s down payment. 551 A.2d at 833-34. To be
sure, we made clear that D.C. Code § 16-910 forecloses a court from assigning a
non-purchasing spouse an ownership interest in sole and separate property
acquired prior to the marriage. Id. at 835. Yet we held that a trial court could
grant a non-purchasing spouse an equitable interest in the property as a result of
their substantial financial contributions toward the property during the marriage.
Id.; see also Bansda, 995 A.2d at 199 (providing that a non-titled spouse can
establish an equitable interest in the titled spouse’s property by proving
“substantial contributions to the home”); Abulqasim v. Mahmoud, 49 A.3d 828,
838-39 (D.C. 2012) (“sole and separate ownership” does not preclude a court from
encumbering a property with an equitable lien in the other spouse’s favor).
Mr. Macklin further suggests that, even if monetary contributions are a basis
to award a spouse an equitable interest in the other’s separately-held property,
homemaker services—childrearing, cooking, cleaning, daily chores, etc.—are not.
Our precedents have not resolved this issue. Ealey, 596 A.2d at 48; see also Araya
v. Keleta, 31 A.3d 78, 80 n.2 (D.C. 2011) (“[W]e have not squarely decided
19
whether such intangible contributions alone can create an equitable interest in real
property.”). Today, we hold as a matter of first impression that substantial
homemaker services can indeed entitle a spouse to an equitable interest in real
property purchased by the other spouse before the marriage and used as the family
home.
We have hinted at this conclusion in prior cases, albeit always in dicta.
Araya v. Keleta, 65 A.3d 40, 52 n.18 (D.C. 2013) (“Araya II”) (noting that earlier
cases suggest that “homemaker contributions . . . may suffice . . . [to] entitle a
spouse to an equitable interest in the other spouse’s separate property”) (internal
quotations and citation omitted); Yeldell, 551 A.2d at 836 (suggesting that “a
husband whose wife did not work would generally not recover all of his
contributions because the wife would be entitled to some credit for her
homemaking services”) (footnote omitted); Ealey, 596 A.2d at 50 (affirming that
“[t]wenty-three years of homemaker services may well entitle a spouse to an
equitable interest under some circumstances”). In Darling v. Darling, 444 A.2d 20
(D.C. 1982), we acknowledged that a spouse’s “substantial and extensive” non-
financial contributions to another’s separately-held business, “all without pay,”
could give rise to “an equitable interest in the business.” Id. at 24-25. That case
concerned a wife who had remodeled and decorated her husband’s business,
20
managed it when he was on travel, maintained the mailing list, performed
numerous administrative duties, and helped her husband prepare for sales events.
Id. at 25.
These cases balked at any rigid distinctions between a spouse’s financial
contributions to an enterprise, on the one hand, and their uncompensated yet
valuable contributions to the same enterprise, on the other. As the trial court
correctly recognized, “one spouse’s work in caring for the home and children”
enables the other “to earn money to support the family,” including the money
necessary to pay any existing mortgage on the property. We have expressly
acknowledged as much in the context of dividing marital property. Araya II, 65
A.3d at 53 (finding that “the wife contributed substantially to the marriage by
bearing and raising the children and freeing the husband to build his practice and
pursue his business ventures”). Absent these domestic services, the titled spouse
would have had less time and/or income to maintain the property, whereas the non-
titled spouse would have had more of an opportunity to acquire income to
contribute financially. In fact, § 16-910(b)(7) expressly directs the trial court to
consider “each party’s contribution as a homemaker or otherwise to the family
unit” when distributing marital property. There is no good reason to treat one
spouse’s homemaking contributions as having a beneficial impact on marital
21
property housing a family, but not on separate property doing the same.
Homemaker services are, therefore, pertinent when considering whether to award
an equitable interest in separately-held property as well. 4
Most courts to have considered this issue have reached similar conclusions.
See, e.g., Hanaway v. Hanaway, 527 N.W.2d 792, 800 (Mich. Ct. App. 1995)
(homemaking and childrearing qualify as contributions to the “acquisition,
improvement, or accumulation” of separate property under Michigan’s statute
governing property distribution upon divorce); Marks v. Marks, 432 S.W.3d 698,
702 (Ark. Ct. App. 2014) (affirming award of husband’s separate property to wife
where wife lived in property for twenty years, maintained and preserved it,
rendered homemaker services, and cared for adult child with a disability); Beightol
v. Beightol, 367 S.E.2d 347, 349-50 (N.C. Ct. App. 1988) (homemaking activities
by a non-titled spouse which increased the value of the titled spouse’s property can
entitle the former to an equitable interest in the property); Roel v. Roel, 406
N.W.2d 619, 622 (Minn. Ct. App. 1987) (unfair hardship justified awarding wife
4
Section 16-910(b)(7) lists twelve relevant, though non-exhaustive, factors
that a trial court might consider when divvying up marital property. While those
factors do not affect § 16-910(a)’s command that each party shall be assigned “his
or her sole and separate property,” each of them may inform whether and to what
extent a spouse is entitled to an equitable interest in such separately-held property.
22
an equitable interest in husband’s non-marital property where wife “spent most of
thirty-year marriage raising the parties’ three children,” lacked employment
experience, and suffered from serious health issues).
At least one jurisdiction has reached the opposite conclusion, albeit for
reasons we find unpersuasive. Utah courts, applying a statute providing for the
equitable division of separate property upon divorce, have rejected the position that
“household or family responsibilities” may provide a “standalone basis for
awarding” a non-titled spouse an equitable interest in the other’s property. Lindsey
v. Lindsey, 392 P.3d 968, 976 (Utah Ct. App. 2017); accord Jensen v. Jensen, 203
P.3d 1020 (Utah Ct. App. 2009). Lindsey reasoned that “the give-and-take often
inherent in marital relationships is generally not a sufficient basis for judicially
rewriting title to property” because “[t]he presumption that parties retain their
separate property at divorce would be rendered largely irrelevant if rebutted by any
spousal effort that freed the other spouse to work on his or her separate property.”
392 P.3d at 977. One might attempt to distinguish Lindsey from this case on the
basis that it concerned one spouse’s claim to an equitable share in the other’s
business, which is arguably more attenuated from homemaker services than an
equitable interest in the family home, as here. But we do not rest on that
distinction because Lindsey’s reasoning seems to apply just as readily to precluding
23
a spouse from claiming an equitable interest in a separately-held home based on
homemaker services. So we take its rationale head on, and do not agree that our
holding today will render the statutory directive that parties retain their separate
property at divorce “largely irrelevant.”
The directive retains its force because, as we have previously held, neither
“minimal” contributions to the home, Brice, 411 A.2d at 343-44, nor “sporadic”
services over an “undetermined period,” Mumma v. Mumma, 280 A.2d 73, 76
(D.C. 1971), will give rise to an equitable interest in separately-owned property in
the non-titled spouse. Rather, only substantial homemaking contributions can give
rise to an equitable interest in the other’s separate property. Cf. Bansda, 995 A.2d
at 199. There is thus no basis to think that, following today’s decision, courts will
begin “rewriting title to property” on account of “any spousal effort,” as Lindsey
dismissively put it. 392 P.3d at 970.
If that was indeed the concern animating Lindsey, then it brought a bludgeon
to do a scalpel’s work: that minimal homemaker contributions should not give rise
to an equitable interest in the other spouse’s separately-owned property is no
reason to preclude substantial contributions from doing so. Likewise, that
allocating domestic responsibilities is an inherent feature of marriage is no reason
24
to disregard the value of those responsibilities. A spouse’s non-monetary
contributions at home often free up the other to make the money necessary to pay a
mortgage on separately-owned property, and save the couple from the substantial
costs of paying for childcare and home upkeep. To blink these realities would do
violence to our consistent recognition that fairness sometimes demands that one
spouse receive an equitable interest in the other’s separate property. See, e.g.,
Darling, 444 A.2d at 24-25. In assessing one spouse’s equitable interest in the
other’s separately-owned property upon divorce, substantial homemaking
contributions may (and should) be taken into consideration.
Our dissenting colleague disagrees with our conclusion, though she agrees
with its core premises. Namely, she agrees that D.C. Code § 16-910 and our
precedents permit one spouse’s non-monetary contributions to give rise to an
equitable interest in the other’s separately held property. We have already
explained why that is so, and while our dissenting colleague at times seems to
voice some statutory and precedent-based concerns with that conclusion, she
ultimately reaches it herself. The only point of disagreement is that, in the
dissent’s view, a non-monetary contribution can give rise to an equitable interest in
separately held property only when it is a “direct contribution” to “the property”
itself. Post at 38 (citation omitted). We think that is an artificial constraint and the
25
dissent does not offer a persuasive rationale for it. 5 A homemaker’s contributions
to the home are no less worthy of recognition than a carpenter’s, and the dissent
does not explain how it makes sense to permit the latter’s contributions to give rise
to an equitable interest in a spouse’s separately owned home but not the former’s.
The dissent retorts that “the issue in this case is not whether a homemaker’s
contributions are valuable and should be recognized, but how.” Post at 39. Not
quite. The issue is very much whether a homemaker’s contributions are valuable
and should be recognized, and the dissent’s answer is a clear “no” in this case and
a broad sweep of cases like it. 6 Had roles been reversed, and Mr. Macklin been a
stay-at-home dad while Ms. Johnson made the money to pay off the mortgage
encumbering the house, then the dissent would recognize her equitable interest in
5
One rationale the dissent offers in defense of it is the need for an
“adequate limiting principle,” as she does not think the requirement that the
contributions be substantial is sufficient for that purpose. But that was not the only
limiting principle guiding the trial court’s award, as it further limited Ms.
Johnson’s award to a share of the equity that accrued in the home during the
marriage, leaving Mr. Macklin’s pre-marital equity untouched. See infra Part
III.C. We think that is also a sensible limiting principle.
6
These are not particularly novel facts. It is not anomalous for a couple’s
assets to be tied up in home equity that accrues over the course of their marriage,
despite the home being titled in only one spouse. To permit the non-titled spouse
to share in the post-marriage equity only when her contributions fit within certain
rigid categories—e.g., financial, masonry, woodwork—is not just an artificial and
harsh rule, but one with a broader sweep than the dissent seems willing to
acknowledge.
26
the property because her contributions would have come in the form of monetary
payments that the dissent deems cognizable. The dissent simply does not extend
the same recognition to a homemaker’s contributions.
B.
Mr. Macklin next argues that even if substantial homemaker services might
give rise to an equitable interest in the other spouse’s separately held property, the
trial court erred in finding that Ms. Johnson made such substantial contributions to
the home and family. For this argument he relies on two of our precedents where
we agreed with the trial court’s conclusion that a spouse’s contributions were not
substantial. Bansda, 995 A.2d at 200; Brice, 411 A.2d at 343-44. In Bansda, we
saw “no basis for rejecting” the trial court’s conclusion that “there was no evidence
of homemaker contributions” by the non-titled spouse. 995 A.2d at 200. And in
Brice we likewise found the trial court’s description of such services as “minimal”
was “supported by the evidence.” 411 A.2d at 344. Here, the trial court reached
the opposite conclusion. It found Ms. Johnson’s contributions were “substantial”
in light of both her monetary contributions to the house while employed and her
role as a full-time mother, “sav[ing] the family a significant amount in child care
27
costs,” during the remaining years of the marriage. 7 While Mr. Macklin challenges
this finding as unsupported by the record, we do not share that assessment.
The record shows that Ms. Johnson was employed for roughly four or five
years of the parties’ marriage, and during that time, she deposited her full
paychecks into the parties’ joint checking account, from which the family paid all
of its bills, including the mortgage on the home. And while the court deemed her
monetary contributions minimal compared to Mr. Macklin’s, it found that when
she was not working, Ms. Johnson contributed substantially to the family because
“she was caring for the children and the household full-time.” Her responsibilities
included caring for the parties’ five children, cooking for the family, doing chores
and laundry, and transporting the children to and from school. The trial court
noted that by Ms. Johnson’s expert’s estimate, her household services saved the
couple about $48,000 a year in childcare expenses for their five children. Such a
contribution can hardly be described as minimal.
7
Ms. Johnson requested a 50% share of the house’s value, and the court
agreed with her self-description as an “equal partner [throughout] the parties’
marriage.” Yet it granted her only a 40% interest in the home because (1) evidence
showed that Mr. Macklin renovated the home when he first moved in, which
increased its value, and (2) when Ms. Johnson moved out of the house in 2017,
following the several-month period in which Mr. Macklin did not reside there, she
left it with “moldy food, debris throughout, and a rat problem.”
28
Mr. Macklin’s trial counsel even acknowledged that Ms. Johnson was due
some equitable interest in the home in light of her minimal financial contributions.
When asked whether Ms. Johnson had an equitable interest in the home, Mr.
Macklin’s counsel replied, “Absolutely.” Counsel contested only the extent of the
interest to which Ms. Johnson was entitled, positing that she was due something
between “zero and maybe 20[%]” of the home’s value.
Mr. Macklin does not now resurrect the argument by contending Ms.
Johnson was entitled to some non-zero figure less than a 40% interest. He instead
challenges the Superior Court’s calculation of the dollar amount that reflects the
40% interest awarded to Ms. Johnson. More specifically, he contends that if Ms.
Johnson was indeed entitled to a 40% interest in the family home, the trial court
should have discounted the pre-marital equity that had accrued in the home before
awarding Ms. Johnson her 40% interest in it. We now turn to that argument.
C.
Mr. Macklin’s final challenge is to the Superior Court’s calculation of Ms.
Johnson’s equitable interest in the house. To make that calculation, the court took
the home’s market value at the time of divorce ($784,000) and deducted Mr.
Macklin’s mortgage balance on the property ($227,000), as well as the estimated
29
sales costs (6% of $784,000, or $47,040), arriving at a “cash-out” value of
$509,960. It then awarded Ms. Johnson 40% of this figure, or $203,984.
Mr. Macklin contends the court inflated Ms. Johnson’s equity in the property
by failing to deduct the pre-marital equity he had in the home when the parties
married in 2005. In his telling, all of the home’s appreciation—i.e., the $559,000
difference between the 2002 purchase price ($225,000) and the market value at the
time of divorce ($784,000)—accrued before the parties married. In fact, he claims
the home was “far more valuable” when the parties married in 2005 than when
they finalized their divorce in 2019. Ms. Johnson counters that Mr. Macklin
forfeited this argument by failing to raise it at trial, and she further argues that he
failed to offer evidence sufficient to support his view that the home had
appreciated to any degree between the purchase date and the date the parties
married. We agree with Ms. Johnson on both points.
We acknowledge, as Mr. Macklin asserts, that a non-titled spouse’s
equitable interest in the other’s property should be measured by the “reasonable
value” of the spouse’s contributions “during the marriage.” Yeldell, 551 A.2d at
835. However, Mr. Macklin did not complain in the trial court—through a motion
for reconsideration or otherwise—that its calculation failed to account for the pre-
30
marital equity he had accrued in his home, and his “failure to raise this point at
trial” generally “prevents its consideration on appeal.” Gavin v. Wash. Post Emps.
Fed. Credit Union, 397 A.2d 968, 973 n.9 (D.C. 1979).
But even if Mr. Macklin had timely raised the issue, the trial court
effectively addressed it when it concluded that he had no pre-marital equity in the
home because he had not paid down his mortgage balance (it exceeded the home’s
purchase price) and because essentially all of the home’s appreciation occurred
during the marriage, not beforehand, as Mr. Macklin now contends. The only
concrete evidence of the home’s appreciation offered at trial came from Ms.
Johnson’s expert, who indicated that virtually all appreciation accrued during the
marriage. Mr. Macklin presented no expert evidence to the contrary, and the court
did not err in relying on Ms. Johnson’s expert. 8 Mr. Macklin similarly offered no
evidence at trial (nor does he argue here) that any equity accrued to him before the
8
For the first time on appeal, Mr. Macklin argues that one of Ms. Johnson’s
expert’s own demonstrative exhibits, displaying economic trends in the D.C.
housing market, supports his claim that much of the home’s appreciation accrued
before the marriage. That exhibit was never entered into evidence, however, so it
is arguably not before us. See Brooks v. Rosebar, 210 A.3d 747, 750 (D.C. 2019).
And even assuming otherwise, the data Mr. Macklin describes speaks “generally to
the D.C. [housing] market”; it does not purport to reflect trends in Mr. Macklin’s
neighborhood, much less the value of the family home over time. Critically, Mr.
Macklin did not once suggest at trial that the data supported the inference he now
presses.
31
marriage through a down payment or payment of the mortgage’s principal; given
that Mr. Macklin’s mortgage balance of $227,000 at the time of divorce was
greater than the purchase price of $225,000, the trial court had little reason to
suspect he had accrued any pre-marital equity through such payments. We thus
cannot fault the Superior Court for declining to deduct pre-marital equity that it
had good reason to think did not exist.
There remains a question lurking in the record as to why the trial court
deducted Mr. Macklin’s mortgage debt, as opposed to the home’s value at the time
the parties married, before apportioning Ms. Johnson her percentage of its value. 9
But the issue is of no moment in this case because the two numbers are nearly
identical and no party complains about the minor discrepancy that resulted from
deducting the mortgage balance rather than the home’s pre-marital value ($227,000
and $225,000, respectively). In fact, the trial court’s decision to deduct the greater
figure worked to Mr. Macklin’s advantage by awarding Ms. Johnson $800 less
than the amount to which she otherwise would have been entitled (40% of the
9
To illustrate the pitfalls of simply deducting the mortgage debt, consider a
scenario where Mr. Macklin had no mortgage debt coming into the marriage. If
that were the case, and the trial court had deducted nothing from the home’s value
at the time of divorce (because it was unencumbered by debt), Mr. Macklin could
rightly complain that the trial court failed to deduct the $225,000 of pre-marital
equity he had in the home.
32
$2,000 difference). And, at bottom, the trial court had a firm basis for concluding
that Mr. Macklin had no pre-marital equity in the home, or—put slightly
differently—that the home’s value at the time of their marriage was entirely offset
by the mortgage debt he separately carried on the property.
We add one final caveat to the above analysis. Contrary to how we have
described its findings above, the trial court seemed to acknowledge that the house
had appreciated by some amount before the parties’ marriage, owing to Mr.
Macklin’s substantial renovation work on the home. But given Mr. Macklin’s
failure to quantify the monetary value of those renovations, we find the trial court’s
crude accounting for those improvements to be quite reasonable: It reduced Ms.
Johnson’s share of equity in the home from 50% to 40%—reducing her equitable
interest by more than $50,000—in large part to account for Mr. Macklin’s pre-
marital renovation work. Supra note 4.
IV.
The judgment of the Superior Court is affirmed.
So ordered.
34
The statutory scheme is very different with respect to “all other property” —
property acquired during the marriage regardless of title (excepting separate
property acquired during the marriage by “gift, bequest, devise or descent”). With
respect to what is usually referred to as “marital property” the trial court has broad
discretion to “value and distribute” the property (and debt) “in a manner that is
equitable, just, and reasonable, after considering all relevant factors . . . .” D.C.
Code § 16-910(b). The statute contains a non-exhaustive list of twelve factors,
including the relative financial condition and prospects of the parties. The statute
specifically lists as factors “each party’s contribution as a homemaker or otherwise
to the family unit” and “each party’s contribution to the acquisition, preservation,
appreciation, dissipation, or depreciation in value of the assets which are subject to
distribution . . . .” D.C. Code §16-910(b)(7) & (10).
This appeal concerns separate real property, a house on Quincy Street, N.W.
appellant acquired three years prior to the marriage. After he bought it, appellant
made substantial renovations to the property to convert it from a multi-unit
building to a single family dwelling. The family lived in the house.
Although the trial court formally recognized that the property belonged to
appellant, it imposed an equitable lien on the property amounting to 40% of his
35
equity in the house, encumbering almost half the value of appellant’s interest in his
separate property. The trial court did so after taking into account the two factors
listed above which the statute provides for consideration in the distribution of
marital property: contribution as a homemaker to the family unit and contribution
to the dissipation of the property (in this case, appellee’s neglect of the house after
appellant had moved out). In effectively treating appellant’s separate property as if
it were marital property, the trial court committed legal error. 4
The majority attempts to get around this statutory obstacle by citing cases in
which this court has recognized the trial court’s “general equity power” to
encumber separate property with a lien while preserving ownership and possession
in the owner spouse. However, the instances where this court has mentioned the
4
The majority comments that the statutory mandate was preserved because
title to the property remained with appellant and appellee “does not have any say in
what [appellant] does with the property or in how he disposes of it (aside from
enforcing her lien).” Ante at 17. The trial court is prohibited from granting an
ownership interest as is made clear by the statute and our precedent. See Yeldell v.
Yeldell, 551 A.2d 832, 836-37 (D.C. 1988). That the trial court adhered to that
injunction by preserving appellant’s legal title does not mean what the trial court
did does not have real world consequences that affect the owner’s use and
enjoyment of the property. Imposition of an equitable lien is not simply
recognition of a debt. The lien is itself an enforceable property right, recordable in
public land records. It could stand in the way of the owner’s freedom to alter the
property or refinance the mortgage. Depending on what other encumbrances exist
or contractual undertakings that relied on appellant’s ownership of the property,
the lien could accelerate contractual obligations or constitute an act of default.
36
trial court’s authority to impose an equitable lien on separate property — mostly
in dicta — hew closely to the statutory scheme by focusing on the non-owning
spouse’s contributions to the property itself. That was not the case here, where the
trial court and the majority are focused on the appellee’s homemaker services that
contributed to the family.
The cases cited by the majority do not sustain the broad proposition relied
upon by the trial court in this case, that one spouse’s contributions in the form of
homemaker services during the marriage generally can form the basis for an
equitable lien on separate property. As the majority recognizes, that issue has not
been decided in any of this court’s cases that it cites: Brice, Yeldell, Bansda, Ealey.
Those cases dealt with monetary payments made by one spouse that directly
enhanced the property or preserved ownership of the separate property itself.
There is no precedent for the majority’s opinion because this case departs from our
prior decisions concerning equitable liens on separate property in that the
contributions were not monetary and were not directed to the acquisition or
enhancement of the separate property itself. 5
5
As the trial court recognized, but the majority appears to overlook,
Darling v. Darling, 444 A.2d 20 (D.C. 1982), was a very different case. There the
separate property at issue was a business owned by the husband before the
37
The reason given by the majority for burdening appellant’s separate property
with an equitable lien unwisely breaks new ground untethered to the statutory
scheme that makes a clear distinction between separate and marital property.
Appellee’s contribution as a homemaker was not directed to the separate property
itself — real property in the form of a house — but to managing the household.
Contributing to the acquisition and improvement of the Quincy Street house, a
physical structure, and contributing by caring for children and managing the home
are not the same thing. Yet the majority treats them as if they were.
The majority deals primarily with justifying the lien based on the in-kind
contribution of homemaking services but does not come to grips with the critical
fact that the appellee’s contribution as homemaker was not “a substantial
contribution to the acquisition (or increase in value) of the property . . . .” Ealey v.
marriage. The wife made significant non-monetary contributions by improving
and managing the business during the marriage and the question presented was
whether those contributions transformed the business from separate property to
marital property subject to equitable distribution under the statute. Id. at 24. The
court held they did. Id. The case did not involve imposition of an equitable lien on
separate property. What is instructive is that, as in the one case cited — Yeldell —
where this court upheld imposition of an equitable lien, the court in Darling was
also focused on the non-owning spouse’s contributions that preserved or enhanced
the value of the separate property itself, in that case, a business. There is nothing
comparable here.
38
Ealey, 596 A.2d 43, 48 (D.C. 1991) (emphasis added); see Yeldell v. Yeldell, 551
A.2d 832, 835 (D.C. 1988) (while the trial court could not award husband half of
legal title in house that wife owned separately prior to marriage, an equitable lien
could be imposed in recognition of “the reasonable value, as of the date of the
divorce, of his [monetary] contributions to the property during the marriage”
(emphasis added)). In this case, there is no comparable direct contribution by
appellee — monetary or in kind — to the house that was appellant’s separate
property. The majority conflates contributions to “the home” with contributions to
the Quincy Street house. A comment in the majority opinion illustrates the point.
It argues that “a homemaker’s contributions to the home are no less worthy of
recognition than a carpenter’s.” Ante at 25. But the issue in this case is not
whether a homemaker’s contributions are valuable and should be recognized, but
how. The statute recognizes homemaker services by providing such contributions
“to the family unit” are to be taken into account in distributing marital property.
D.C. Code § 16-910(b)(7). The critical distinction between a spouse’s contribution
as a carpenter and as homemaker is that the former enhances the value of the
separate property itself whereas homemaking creates value for “the family unit”
that the statute designates for recognition in an equitable distribution of marital
39
property. The separate property is a house on Quincy Street, a piece of real estate,
not the family. 6
The majority attempts to close this gap by a circuitous route, adopting the
trial court’s statement that the appellee’s “work in caring for the home and
children” enabled appellant “to earn money to pay the mortgage and otherwise
maintain his separate property.” Without further analysis, this generic statement is
economically incoherent; without findings based on evidence it cannot be
sustained. Moreover, the statement implies that appellant enriched himself
unfairly from appellee’s labor at home because it enabled him to pay the house
mortgage from his earnings and keep the separate property for himself. But that is
not so. Both parties benefitted. Appellant made his Quincy Street house available
for the family’s use. By paying the mortgage on the property appellant saved the
family’s finances the cost of paying rent — not unlike how the appellee’s
contributions as a homemaker saved child care costs. The money that appellant
earned also went to support the family’s needs for food, clothing, medical and
other expenses. Moreover, the premise that appellee’s work at home indirectly
6
To the extent the trial court made any finding with respect to appellee’s
contributions to the house’s value, it was to note her neglect of the property once
appellant moved out — to the point of reducing her equitable interest by 20%,
from half to 40%.
40
helped to pay the mortgage collapses if one imagines a slightly different, but not
uncommon, scenario. Appellant could have kept his house on Quincy Street as an
investment property and rented it out, using the rent collected to pay for the
mortgage, taxes, etc. In short, without careful consideration of the parties’
contributions and underlying finances in context there is no logic or evidentiary
basis to conclude, as the trial court and the majority do, that appellee’s
contributions as a homemaker made servicing the mortgage on the Quincy Street
property possible and did so to such an extent that she was entitled to 40% of
appellant’s equity. The relevant question is whether a spouse contributed to the
acquisition or enhancement of the separate property and in what amount. 7
There was no such careful parsing in this case. Rather, the essence of the
court’s reasoning for imposing the lien was generic, that appellee was “an equal
partner in the parties’ marriage” and “the efforts of both spouses were necessary to
7
The majority expresses dismay that “had roles been reversed,” with
appellant a stay-at-home Dad, and appellee working outside the home and paying
the mortgage, she would be entitled to an equitable lien on the house. That result
is dictated by Yeldell. In that case the husband paid the mortgage on a house the
wife acquired prior to the marriage and owned as her separate property. 551 A.2d
at 833. The wife also worked outside the home and contributed to improvements
to the house and paid utility and other household expenses. Id. We upheld the
grant of an equitable lien to the husband based on a calculation of the mortgage
payments he made. Id.
41
the family’s functioning over the years.” That might well be true but largely
beside the point because the issue was not contribution to the family’s functioning
during the marriage — that is compensable in the distribution of marital property
— but appellee’s contribution to the separate property. The court began its
assessment of the lien in favor of appellee at half the value of appellant’s equity in
the house, and justified its decision to award 40% to appellee in light of appellant’s
investment in improving the property and appellee’s dissipation of its value due to
her neglect of the house during the seven months that she lived there alone with the
children. This is classic reasoning for distribution of marital property, starting at a
50-50 division, and making adjustments from that base. Indeed, the trial court
used virtually the same language in imposing the lien on the separate property as it
did in distributing the marital property. Compare Court Order at 24-25 (imposing
equitable lien: appellee “was an equal partner in the parties’ marriage . . . the
efforts of both spouses were necessary to the family’s functioning over the years”)
and 31 (distributing marital property: appellee “was an equal partner to her
husband throughout the parties’ marriage. . . . Court cannot find that these
[homemaker] contributions should be valued differently”).
It is telling that in denying appellee’s request for alimony, the trial court’s
order noted that it had awarded “over $250,000 in marital assets” and relied on
42
Sudderth v. Sudderth, 984 A.2d 1262, 1266 (D.C. 2009), for the proposition that “it
is within the trial court’s discretion to award marital property in lieu of
alimony.” But of the $254,424 awarded to appellee, 80% ($203,984) was
not marital property but attributable to the lien on appellant’s separate property.
And Sudderth was inapposite because it dealt with marital, not separate,
property. See id. The reasoning and the language of the trial court’s order show
that the two categories of property the statute takes pains to
distinguish were substantially indistinguishable in the trial court’s mind.
The majority opinion similarly functionally erases the distinction between
marital property and separate property when it declares, ante at 21, “[t]here is no
good reason to treat one spouse’s homemaking contributions as having a beneficial
impact on marital property housing a family, but not on separate property doing the
same.” The unambiguous statutory scheme that draws a bright line between
separate and marital property and expressly provides that homemaker contributions
are to be taken into account in distributing marital property is a very good reason to
treat them differently. 8 The majority’s observation that “it is not anomalous for a
8
The trial court’s reasoning grounded on the parties being equal partners in
a joint enterprise of marriage sketches the outline of what could be an agreement
between the parties — the antenuptial or postnuptial agreement contemplated in
43
couple’s assets to be tied up in home equity that accrues over the course of their
marriage, despite the home being titled in only one spouse,” ante at n.6, also belies
the statutory line between separate and marital property. The statute expressly
provides that increase in the value of separate property remains separate. D.C.
Code § 16-910(a) (separate property includes “any increase thereof[] or property
acquired in exchange therefor”). Thus, the increase in the equity of the property
during the marriage remained appellant’s separate property. Nor is it a matter of
title, as marital property remains marital “regardless of whether title is held
individually or by the parties in a form of joint tenancy or tenancy by the
entireties. . . .” D.C. Code § 16-910(b).
The majority opinion has opened the door to the imposition of liens on
separate property based on homemaker contributions without an adequate limiting
principle or guidance to the trial court. It says there is no reason to be concerned
because to give rise to an equitable interest, the homemaker’s contribution must be
“substantial.” But what does that mean? Does “substantial” refer to whether the
homemaker services are full- or part-time? The length of time during which they
the statute, see supra note 2. But the existence of such an agreement was not
argued and the trial court made no such finding.
44
are provided? Their quality? Whether the homemaking spouse had more
remunerative options available? And once it is determined that a spouse made a
“substantial” contribution to the family as a homemaker, does it now automatically
follow that in the District of Columbia an equitable interest is created in the other
spouse’s separate property? What guides that determination?
It is no answer to say that homemaker services are “valuable.” Ante at 25.
Even assuming homemaker services can form the basis for an equitable lien on
separate property, that generalization does not “determine the reasonable value, as
of the date of the divorce, of [the non-owner spouse’s] contributions to
the property during the marriage.” Yeldell, 551 A.2d at 835. Valuations are
necessary to determine whether the spouse should be granted an equitable
interest in the spouse’s separate property and, if so, in what amount. See Ealey,
596 A.2d at 48-50 (assuming, without deciding, that homemaker services can
be considered in imposing an equitable lien on separate real property and noting
that “the trial judge should generally place a monetary value on the non-
monetary contributions, particularly when requested to do so and a formula is
proposed”).9
9
Appellee presented evidence that her work at home had a value of $47,800
in after-tax income, but the trial court did not accept her “precise quantification.”
Instead, the court found generally that appellee’s work at home saved the family “a
45
There is an aphorism that bad facts make bad law. This case presented with
bad facts and the trial court was faced with a tough situation. One unalterable fact
was that there was not much in the way of marital property for distribution to the
parties. 10 Moreover, the trial court determined that appellee had not made out a
case for alimony. The appellee’s income was limited: child support from
appellant, her relatively small earnings as an artist and public assistance. It seems
apparent that the trial court attempted to remedy the appellee’s straitened financial
resources by reaching for appellant’s Quincy Street property because it was the
only asset with significant value. That would have been authorized if the house
had been marital property; the trial court enjoys broad discretion in distributing
marital property taking into account a number of factors. Here, the house was not
available for distribution. An equitable lien on separate property is not a
convenient all-purpose judicial tool on hand to effect a work-around the statutory
scheme enacted by the legislature that draws a bright line between separate and
significant amount” in child care costs and that this effort is “no less important
than the other parent’s income-producing work.”
10
Only 20% of the amount awarded to appellee was attributable to marital
property. The trial court awarded appellee half the value ($50,440) of two
properties appellant purchased during the marriage that were marital property.
46
marital property and carefully delineates the court’s authority in dealing with each.
The trial court’s scope of action in the exercise of its “general equity power” is not
unbounded and must be respectful of the applicable statute and our cases. In my
view, the trial court’s order imposing a lien on the house owned by appellant
exceeded both.
The majority makes a policy determination that is for the legislature, not the
courts, particularly as it pertains to an area of law in which the legislature has
spoken by establishing a detailed scheme for how separately owned assets and
marital property are to be assigned and distributed at the end of a marriage. If the
court is to take the lead and for the first time hold that homemaker services can be
the basis for an equitable interest in separate property it should provide clear rules
for how it should be done, specifically, that homemaker services must be shown to
have contributed to the acquisition or improvement of the separate property and
given a reasonable valuation. Neither was done in this case with any specificity or
evidentiary basis. At a minimum the case should be remanded for further
proceedings. “Given this uncertain record, the trial court on remand should
explain fully how it calculates the value of the [appellee’s] contributions. If the
court believes that it does not have enough information on which to base a
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decision, it may in its discretion receive additional testimony.” Yeldell, 551 A.2d
at 836.