Elwell v. Elwell

• Decision Date: 08 May 2008
• Docket Number: No. 06-FM-956.,No. 06-FM-955.,No. 06-FM-954.,06-FM-954.,06-FM-955.,06-FM-956.
• Citation: 947 A.2d 1136
• Parties: Robert G. ELWELL, Appellant, v. Carole E. ELWELL, Appellee.
• Court: D.C. Court of Appeals

947 A.2d 1136

Robert G. ELWELL, Appellant, v. Carole E. ELWELL, Appellee.

No. 06-FM-954.

No. 06-FM-955.

No. 06-FM-956.

District of Columbia Court of Appeals.

Argued April 15, 2008.

Decided May 8, 2008.

Alan B. Soschin, Washington, DC, for appellant.

Carole E. Elwell, pro se.^*

Before FISHER and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

NEBEKER, Senior Judge:

Appellant Robert G. Elwell appeals from a final order of the trial court denying his complaint to terminate or reduce spousal support. On appeal, he contends that the trial court erred in concluding that the parties' settlement agreement did not include a term requiring the renegotiation of alimony upon appellant's retirement. We agree and reverse.

I.

In 1992, appellant filed for divorce. At a hearing before Judge Harold L. Cushenberry, Jr., on May 4, 1994, the parties entered into an oral separation agreement concerning everything except the division of personal property. Counsel for appellant read the terms of the agreement into the record, including a provision for alimony.¹ After the terms were stated, the trial judge began to examine the parties in order to determine if they agreed. Both parties said that they agreed to be bound by the separation agreement. Counsel for appellant interrupted this examination, explaining that he had inadvertently omitted a term. Then, he and counsel for appellee explained what was missing:

[Appellant's Counsel]: Your Honor, I omitted something.

The Court: Did you? What did you omit?

[Appellant's Counsel]: And, I need to make sure that I didn't omit anything else with respect to the alimony. The alimony, of course, is payable —

[Appellee's Counsel]: Until death or remarriage.

[Appellant's Counsel]: Until death or remarriage.

The Court: Right.

[Appellant's Counsel]: To be renegotiated on retirement based upon the incomes at that time. But, in no event would Mr. Elwell retire before the age of sixty-five.

The Court: Okay. With that addendum, both parties are in agreement?

Mrs. Elwell: Say that once more.

[Appellant's Counsel]: The spousal support is payable until your remarriage or death, or until Mr. Elwell retires. In no event, before the age of sixty-five on the retirement. At retirement, spousal support would be negotiated — renegotiated based upon the incomes of the parties at that time.

Mrs. Elwell: That's two years from now. Three years from now. I forgotten how old you are.

Mr. Elwell: What?

The Court: She forgot how old you were.

Mr. Elwell: I will be sixty-two this Saturday.

Mrs. Elwell: So, three more years until we negotiate?

The Court: That's right. Only if he retires.

[Appellant's Counsel]: Only if he retires.

[Appellee's Counsel]: Only if he retires.

The Court: If he continues to work —

[Appellee's Counsel]: Otherwise, we come to court.

The Court: That's right.

Although the parties agreed to reduce this oral separation agreement to writing and sign it, this was never done, but the Superior Court is a court of record since 1970. See D.C.Code § 11-901 (2001). Thus, what was stated for the record is the operative equivalent of a written and signed agreement. See Braxton v. United States, 395 A.2d 759, 767 (D.C.1978). This oral separation agreement has been found to be valid four times: by Judge Reggie B. Walton (Oct. 23, 1995), Judge Frederick D. Dorsey (Nov. 15, 1996), Judge Stephanie Duncan-Peters (Oct. 30, 1997), and Judge Judith N. Macaluso (Feb. 23, 2006). The subsequent transcription of the agreement from the court reporter's records suffices for purpose of enforcement.

After a trial, Judge Duncan-Peters issued a Judgment of Absolute Divorce on October 30, 1997, which divided the parties' personal property. In her Findings of Fact, Judge Duncan-Peters stated that the parties had previously entered into an oral separation agreement and recited its terms from the transcript of the 1994 hearing. However, this recitation did not include the additional term providing for the renegotiation of alimony upon Mr. Elwell's retirement. After the recitation of the separation agreement's terms, alimony was mentioned in only one other sentence in the trial court's 36-page opinion. There, the court explained that alimony was not at issue at that stage of the parties' lengthy divorce proceedings: "The alimony issue was resolved through the parties' private agreement. . . ."

On January 31, 2005, appellant's 23-year tenure working for his employer ended after his employment contract expired and was not renewed. Appellant, who is in his late 70's, was unable to find another job and receives two small retirement pensions. Five days after his employment concluded, appellant filed a complaint to terminate or reduce spousal support. The trial court considered the issue of whether the alimony renegotiation term was a part of the parties' 1994 separation agreement. At an evidentiary hearing, Judge Macaluso examined appellee about this term:

Q: . . . Did you agree that the alimony provisions would be renegotiated after Mr. Elwell retired?

A: I'm not sure if I did agree, actually, did I on the transcript?

Q: Well, I don't know. It's ambiguous. That's why I'm asking you. Did you agree or not?

A: I think I probably did, because I wanted to get out of there, but could I see the transcript myself?

Q: Yeah, sure.

A: It says what I said.

Although appellee conceded that she likely did agree to the alimony renegotiation term, the trial court held that this term was not a part of the 1994 separation agreement. In her February 23, 2006, order, Judge Macaluso explained that Judge Duncan-Peters made a factual finding that the alimony renegotiation term was not a part of the 1994 separation agreement. Judge Macaluso concluded that the "May 4, 1994, transcript reveals that neither Ms. Elwell nor Mr. Elwell testified that they intended to be bound by a provision for renegotiation of the alimony amount." The court further stated that the parties' later conduct demonstrated that the additional term was not a part of the agreement. Ultimately, the trial court concluded that "Judge Duncan-Peters's construction of the alimony provisions is binding between the parties under principles of res judicata and collateral estoppel."

II.

Appellant first contends that the trial court erred in holding that his claim is barred by the doctrines of res judicata, claims preclusion, and collateral estoppel, issue preclusion. He argues that the trial court erroneously concluded that Judge Duncan-Peters had decided previously in 1997 that the additional alimony renegotiation term was not a part of the separation agreement. We review application of these doctrines de novo. See AMEC Civil LLC v. Mitsubishi Int'l Corp., 940 A.2d 131, 133 (D.C.2007).

The principle of res judicata "precludes relitigation of the same claim between the same parties." Borger Mgmt., Inc. v. Sindram, 886 A.2d 52, 59 (D.C.2005) (citation omitted). We consider "(1) whether the claim was adjudicated finally in the first action; (2) whether the present claim is the same as the claim which was raised or which might have been raised in the prior proceeding; and (3) whether the party against whom the plea is asserted was a party or in privity with a party in the prior case." Patton v. Klein, 746 A.2d 866, 870 (D.C.1999) (quoting Washington Med. Ctr., Inc. v. Holle, 573 A.2d 1269, 1283 (D.C.1990)). Here, appellant's present claim is different than what was considered and adjudged in Judge Duncan-Peters' order. There, the court noted that "[t]he alimony issue was resolved through the parties' private agreement. . . ." There is no indication that appellant claimed in that matter that his alimony payments should be reduced pursuant to the additional alimony renegotiation term. This is to be expected because appellant was still gainfully employed at the time of that proceeding. Therefore, the condition precedent to exercising the additional alimony retirement term had not been satisfied and this issue might not have even been ripe for adjudication at that time. See Metro. Baptist Church v. District of Columbia Dep't of Consumer & Regulatory Affairs, 718 A.2d 119, 130 (D.C.1998). Thus, we conclude that res judicata does not bar appellant's claim.

Similarly, appellant's claim is not precluded by the doctrine of collateral estoppel, which prohibits "the relitigation of factual or legal issues decided in a previous proceeding and essential to the prior judgment." Borger, supra, 886 A.2d at 59. "In order for collateral estoppel to apply '(1) the issue must be actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.'" Patton, supra, 746 A.2d at 871 (quoting Washington Med. Ctr., supra, 573 A.2d at 1283) (citations and modifications omitted). Here, however, there is no indication that Judge Duncan-Peters was presented with the issue of whether this additional alimony renegotiation term was a part of the separation agreement. The purpose of the court's order was to divide the parties' personal property and alimony was not at issue at that stage of the proceedings.² The recitation of the oral separation agreement was likely included for the convenience of the readers and the litigants. There is simply no indication Judge Duncan-Peters adjudged on the merits that this renegotiation term was not a part of the separation agreement. "When `a prior judgment [does] not indicate clearly what issues were resolved . . . the result is that the opaque judgment fails to preclude relitigation.'" Major v. Inner City Prop. Mgmt., 653 A.2d 379, 382 (D.C.1995) (quoting C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4420, at 184 (1981)). Although Judge Duncan-Peters thoroughly addressed the issues before her, her opinion shows that this issue was...