Zoob v. Jordan, 01-FM-1336.

• Decision Date: 05 February 2004
• Docket Number: No. 01-FM-1336.,01-FM-1336.
• Parties: Marina ZOOB, Appellant, v. Xavier JORDAN, Appellee.
• Court: D.C. Court of Appeals

841 A.2d 761

Marina ZOOB, Appellant, v. Xavier JORDAN, Appellee.

No. 01-FM-1336.

District of Columbia Court of Appeals.

Argued November 12, 2003.

Decided February 5, 2004.

Armin U. Kuder, Washington, for appellant.

Before FARRELL and WASHINGTON, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

Marina Zoob appeals from a Domestic Relations Branch order covering divorce, custody, visitation, spousal support, attorney's fees, and property distribution. Only the property is at issue here. Appellant Zoob argues that her former husband, appellee Xavier Jordan, successfully completed a gift transferring to her half-interests in each of two cooperative apartments and in an associated parking space.¹ The trial court found that Jordan had manifested the requisite intent to make the transfers, and no one disputes that Zoob had accepted them if made. But the court also found that because Zoob's name did not appear on either apartment's "title," Jordan had failed to effect the transfer and that the apartments accordingly remained his alone. We conclude, to the contrary, that Jordan's efforts to transfer half-interests in the two apartments to Zoob were effective to accomplish their delivery to her as a gift. But we also conclude that his actions were not sufficient to effect delivery of her claimed interest in the parking space. We thus reverse in part and affirm in part.

I.

The parties were married in England on August 16, 1996, and had one child, Ines. They separated in the Spring of 1998 and, in the following October, entered into a voluntary agreement that purported to be a final settlement of all property claims and was incorporated in an order of the High Court of Justice in London. The trial court concluded that this U.K. settlement agreement disposed of the marital property, a ruling that the parties do not contest. Our analysis, therefore, proceeds from the premise that Zoob and Jordan were no longer married, and thus that their dispute over property is not governed by domestic relations law.

Pursuant to the settlement agreement and court order, Jordan paid certain expenses relating to their daughter Ines's education and support. The agreement and order also required Jordan to pay Zoob the equivalent of $290,000 on or before January 1999, subject to accomplishment of certain other conditions (including an order granting an absolute divorce). No judgment of absolute divorce was ever entered in England, however, and in early 1999 the parties began to consider reconciliation. Jordan paid Zoob the $290,000 in April 1999, and after Jordan received an offer for work in Washington, D.C., the two traveled there together in June to look for a place to live. They selected the "Mendota" cooperative apartment building at 2022 20th Street, N.W. Sometime later, while vacationing in Spain with Zoob, Jordan briefly traveled to the District of Columbia and purchased apartment 31 in the Mendota. Soon thereafter, in September, Zoob and her daughter from a previous marriage, as well as Ines and Jordan, moved to the District. Three months later, while Zoob was traveling in England, Jordan bought apartment 32 in the same building.

Joyce Rhodes, an employee of the Edmund Flynn Co., which prepares and maintains ownership and transfer documents for the Mendota cooperative, testified at trial about the process of buying an apartment at the Mendota. First, buyer and seller sign a "cooperative unit sales contract." Next, the buyer must be approved by the cooperative association board. The buyer then attends settlement and closes on the apartment. Finally, the buyer signs a "co-operative apartment ownership contract," which the cooperative board president then signs on behalf of the board. That contract is retained by the buyer (or by the buyer's lender in case of a mortgage) and serves as the buyer's evidence of the "right of perpetual use and enjoyment" of the designated apartment subject to various obligations (such as monthly assessments) specified in the contract. It is the functional equivalent in a cooperative regime of "title" or "deed" to the property.

Both ownership contracts for apartments 31 and 32 were signed by Jordan alone. However, one of the closing documents, the "Statement of Ownership" for apartment 32—best described as a cover sheet, with a copy of the ownership contract attached, used to register ownership on the cooperative association books—had the following handwritten notation at the bottom: "Note: To be amended later to reflect joint ownership by Xavier Jordan and Marina Zoob (wife)." Furthermore, Jordan submitted e-mail and telephone requests to the Mendota Cooperative Association in mid-December 1999, asking that Zoob's name be added to the "deeds" (meaning the ownership contracts) for both apartments 31 and 32. Zoob's name accordingly was typed onto the ownership contract for each apartment and, thereafter, each contract was signed on behalf of "The Mendota Apts. Inc." by its president, Scott Weiner.

In 2000, relations again soured between the parties. In July of that year, Zoob obtained a temporary protection order against Jordan, who proceeded to obtain the same against Zoob. The two cases were consolidated and the court entered a consent temporary protection order. During the proceedings, Zoob lived in apartment 31 and Jordan in apartment 32. On November 9, 2000, Zoob filed a complaint for divorce alleging voluntary and mutual separation of the parties. She also claimed that he reconciliation with Jordan had abrogated the British order, effectively restoring her claim to marital property under District of Columbia law. The trial court issued Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce on June 11, 2001. The court amended that order with an order docketed on September 21, 2001, from which this appeal is taken.

II.

In its ruling, the trial court upheld the British order and concluded that "any property acquired by the parties subsequent to the issuance of the British Consent Order that is not covered by that order is the sole property of the party who acquired it."² The court credited Zoob's contention that the parties had agreed to purchase apartment 31 jointly, as evidenced by the fact that they both had looked at the property as well as the fact that Zoob had relinquished her residence in London. The court concluded nonetheless that because Jordan had paid for the apartments with his own personal funds— one with his own cash held free and clear, the other with borrowed funds secured by a mortgage solely in his name—he was the sole owner of each. Jordan was ordered to reimburse Zoob $12,446.66 for expenditures she had made to renovate apartment 31, and Zoob was given thirty days to vacate.

On September 21, 2001, after each party had filed a motion contesting the other's claimed interests in the two apartments (and in a parking space for apartment 31), the trial court ruled for Jordan. The trial court agreed with Zoob that the documents of record evidenced Jordan's intent to make Zoob a joint owner of each apartment, but the trial court further concluded that despite this intention Jordan had failed to effect a transfer because he had not placed Zoob's name on the ownership documents. In short, because "the properties were never actually titled to her," there was no evidence of joint acquisition or ownership.³

III.

In resolving an appeal from a non-jury trial, we "may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (2001). "This means that a trial court's findings of fact will not be disturbed unless they are clearly erroneous." Cahn v. Antioch Univ., 482 A.2d 120, 128 (D.C.1984) (citation omitted). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court is left with a "definite and firm conviction" that a mistake has been made. Spargnapani v. Wright, 110 A.2d 82, 85 (D.C.1954) (citation omitted).

Zoob contends that she is entitled to a fifty percent joint ownership interest in each of the apartments. In her post-trial Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce, Zoob asserts that she had acquired that interest in each "by gift or transfer," and that "she has an equitable interest based on the parties' agreement, Mr. Jordan's expressed intent, and her exclusive use" of apartment 31. The trial court, in its September 2001, amended ruling, failed to address directly the question whether ownership interests in the apartments had been given or otherwise transferred to Zoob; the trial court merely stated that "the trial record does not support the plaintiff's position" and agreed with arguments advanced in Jordan's opposition. For its part, Jordan's opposition supplied three arguments against Zoob's position: that the "totality of the evidence" does not reflect that Zoob obtained an ownership interest by way of gift or transfer; that Zoob's testimony to the effect that Jordan's failure to give her gifts contributed to the failure to the marriage is inconsistent with alleging that Jordan had conveyed a gift of property; and that "neither Ms. Zoob's belief, nor Mr. Jordan's intention (which he subsequently changed), abrogate the parties' settlement agreement, nor give Ms. Zoob any legal or equitable claim" to the properties. While we agree (because Zoob does not contest on appeal) that the parties' British settlement agreement precludes consideration of the apartments as marital property, we must conclude that the trial court's dispositive ruling—that Jordan failed to convey any ownership interest to Zoob because "the properties were never actually titled to her"—is wrong as a matter of law.

Preliminarily we note that although Zoob, in the trial court, claimed ownership by "gift" or other "tra...