Cerovic v. Stojkov

• Decision Date: 17 March 2016
• Docket Number: No. 14–FM–100.,14–FM–100.
• Citation: 134 A.3d 766
• Parties: Ivana CEROVIC, Appellant, v. Dusko J. STOJKOV, Appellee.
• Court: D.C. Court of Appeals

134 A.3d 766

Ivana CEROVIC, Appellant,

v.Dusko J. STOJKOV, Appellee.

No. 14–FM–100.

District of Columbia Court of Appeals.

Argued Dec. 10, 2014.

Decided March 17, 2016.

Edward E. Schwab, for appellant.

Christopher M. Locey, Washington, DC, with whom Michael A. Troy was on the brief, for appellee.

Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.

RUIZ

, Senior Judge:

Appellant, Ivana Cerovic, and appellee, Dusko J. Stojkov, were divorced by Decree of Absolute Divorce entered by the Superior Court of the District of Columbia. Cerovic argues on appeal that when making an equitable distribution of property upon dissolution of the marriage, the trial court erred (1) in its determination that the parties had not been married before their wedding ceremony in 2010, by entering into either a "non-marital cohabitation" under Serbian law in 2003 or a common law marriage when they later relocated to the District of Columbia; and (2) in its inclusion of attorney's fees incurred in connection with the divorce proceedings as marital debt. Cerovic also argues that the trial court abused discretion in its equitable distribution of property, denial of her requests for alimony and attorney's fees, and in its imposition of a sanction for failure to present her argument under foreign law in a timely manner. We agree that the trial court committed legal error in its consideration of Cerovic's claim that the parties had been married before their wedding ceremony and in its inclusion of attorney's fees incurred in the divorce proceedings as marital debt. These and other errors require that we remand the case for further proceedings consistent with this opinion that could affect the distribution of property, alimony, the award of attorney's fees, and the sanction.

I. Facts

A. The Parties' Courtship and Marriage

Cerovic and Stojkov are both native Serbians. Stojkov became a naturalized American citizen in 2006 and Cerovic is a Serbian citizen who, at the time of trial, had a pending application for United States citizenship based on her marriage to Stojkov. She has a bachelor's degree and a master's degree in Business Administration. He is a licensed attorney in the United States.

The parties met in Serbia in February or March of 2003. Although the exact date of their first meeting is in dispute, the parties agree that they first spent a significant amount of time together when they met at a restaurant opening they had attended separately; they met there again on April 15, 2003. According to Cerovic, she and Stojkov first had sexual relations on April 17, 2003, at which time they agreed to live together as husband and wife. Stojkov concurred that they quickly entered into a romantic and sexual relationship, but denied that they had an understanding about living together as a married couple. The trial court credited Stojkov's testimony, concluding that Cerovic's claim was "not credible" because she and Stojkov had at that time been alone together only twice. The trial court noted that the parties did not "merge any finances, bills, bank accounts or utilities," and that Cerovic did not have a key to Stojkov's apartment or contribute to his rent. According to Stojkov's brother, whose testimony was credited by the trial court, Cerovic and Stojkov would spend many nights at each other's residences, but each kept his or her own apartment, furnishings, and possessions. Cerovic's grandmother testified that the parties spent all their time together from when they first met in 2003 and that Cerovic moved into Stojkov's apartment, although they would also sometimes spend the night in her apartment. Cerovic told her grandparents that she loved Stojkov and wanted to marry him. To allay the grandparents' concern about the future of their only grandchild, the grandmother testified, Stojkov reassured them that "Ivana is now my wife and as my wife she will be perfectly taken care of."¹ The trial court concluded, as a factual matter, that the parties did not "cohabit" while they resided in Serbia.²

In May of 2003, while on vacation in Portugal, the parties agreed to become engaged before Stojkov was scheduled to leave for the United States. They announced their engagement at a gathering of family and friends in Serbia in June of 2003, at which time Stojkov gave Cerovic a diamond engagement ring. Stojkov's father also presented Cerovic with a gift, according to Serbian custom. The trial court found, as a factual matter, that the parties became engaged in June of 2003.

In early July 2003 Stojkov returned, alone, to the United States for work. At the time he was employed full-time as an attorney at Ernst & Young and owned an apartment at 2320 Wisconsin Avenue, Northwest, in the District of Columbia, which he had purchased in December of 2001. Cerovic was employed full-time in Serbia, but she took a leave of absence from her employment and followed Stojkov to the United States in August 2003 on a tourist visa. The two lived together in the Wisconsin Avenue apartment for the duration of Cerovic's stay in the United States, until she had to return to Serbia in July of the following year when her tourist visa expired. She cooked meals and cleaned the apartment. As she was unable to be employed on her tourist visa, she volunteered for the Serbian Unity Congress. She also supervised renovations to the Wisconsin Avenue apartment, for which Stojkov paid.

Cerovic applied for an H1–B visa (for skilled workers) to be eligible for employment in the United States. Her application was denied in September of 2004, and she appealed. In October of 2004, three months after Cerovic had returned to Serbia and was waiting for her visa situation to be resolved, Stojkov executed a contract to purchase a house at 3507 T Street, Northwest, on which he closed in November of 2004. Stojkov testified that he did not consult Cerovic about the purchase and did not list her on the title or mortgage, but said that he purchased the house with the expectation that he and Cerovic would live there together. Cerovic testified that she communicated with Stojkov "all the time" while she was in Serbia and was initially against purchasing the T Street house. Stojkov sold the Wisconsin Avenue apartment in December 2004. Cerovic did not contribute funds to purchase the Wisconsin Avenue apartment, the T Street house, or an apartment that Stojkov later purchased in Novi Sad, Serbia in August of 2006.

Cerovic's visa application was granted in January of 2005, and she promptly returned to the United States where she joined the Serbian Unity Congress as an employee. The T Street house Stojkov had purchased for them to live in was undergoing renovations, so the parties resided at a friend's apartment from February to July of 2005. They moved into the T Street house together in July of 2005 and it was their home until their separation in November of 2010, although Stojkov lived in Vienna for work from the end of 2007 until mid–2009. Cerovic testified that she remained in the United States so as not to jeopardize her visa status and that she and Stojkov visited each other regularly during that time. Cerovic testified that she purchased food for the household, and paid various household expenses and the insurance for Stojkov's vehicle. Additional renovations to the T Street house were made in 2006 and 2010; Cerovic coordinated the selection of the contractors for the project, which Stojkov financed.

The trial court was presented with evidence that the parties considered themselves to be married during the years they lived together in the District of Columbia (2003–04 and 2005–10). A menu from a restaurant (The Inn at Little Washington in Virginia) dated April 15, 2005, wished the parties "Happy Anniversary." The trial court credited Stojkov's testimony, however, that he misled the restaurant by lying about the anniversary in order to get a table on short notice, and noted that there was no evidence of other anniversary celebrations or cards during the seven-year period Cerovic claimed they had deemed themselves to be married. Similarly, in 2008, while Stojkov was working in Vienna, he sent an email to his bank saying he had neglected to add his "wife, Ivana Cerovic" to his new bank account. The trial court again credited Stojkov's testimony that he also lied to the bank about Cerovic being his wife, this time so that he could add her to his account remotely, while he was out of the country. During the same period, Cerovic wrote several emails to Stojkov in which she referred to herself as his wife or that she signed "Wife" or "Wifey." However, there is evidence of only a single response from Stojkov to the emails, in which he referred to Cerovic as "my happiness," rather than his wife. Cerovic's childhood friend testified that Stojkov addressed Cerovic using the Serbian word "z?ena/o," which means both "wife" and "woman." In a letter to his father, Stojkov referred to Cerovic as "snajki," which can mean both "daughter-in-law" and "lass" or "girl."

There was also evidence that the parties did not consider themselves to be married. Friends testified that they did not hold themselves out as a married couple; a neighbor testified that nothing either of them said or did indicated that they were married as opposed to living together in a romantic relationship; and a friend testified that they never referred to each other as "husband" or "wife" and did not wear wedding rings. The trial court took note that Cerovic and Stojkov did not maintain a joint bank account³ or a joint budget, did not assume a common name, owned real property separately, did not have joint debts, and paid bills in their own names without contribution from the other. Additionally, while Stojkov was employed with Patton Boggs, LLP, from 2004 to 2008, he identified himself as single, without any dependents, on personnel records and yearly health insurance enrollment forms, and Stojkov listed Cerovic as his "fiancée" on an insurance...