Hackes v. Hackes

• Decision Date: 17 June 1982
• Docket Number: No. 80-87.,80-87.
• Citation: 446 A.2d 396
• Parties: Mary Ellen HACKES, Appellant, v. Peter F. HACKES, Appellee.
• Court: D.C. Court of Appeals

Page 396

446 A.2d 396

Mary Ellen HACKES, Appellant, v. Peter F. HACKES, Appellee.

No. 80-87.

District of Columbia Court of Appeals.

Argued March 3, 1982.

Decided June 17, 1982.

Rolland G. Lamensdorf, Washington, D. C., for appellant.

Elizabeth Guhring, Washington, D. C., with whom Pamela Forbes Dulles, Washington, D. C., was on briefs, for appellee.

Before KELLY, NEBEKER and MACK, Associate Judges.

KELLY, Associate Judge:

In this divorce action there are appeals from two orders of the trial court. The first, issued on December 18, 1979, granted appellee, inter alia, an absolute divorce, and in accordance with the parties' recommendation, ordered them to equitably divide the household contents and their personal effects without the court's intervention.

After briefs appealing portions of that order were filed, appellee moved in this court for an order permitting him to enter 5045 Klingle Street, N.W., the marital home of the parties, for the purpose of taking an inventory and appraisal of its contents. This request was pursuant to the trial court's order acknowledging an agreement between the parties that they would try to divide the personal property by themselves. In response to appellee's motion, we remanded, ordering the trial court to handle the distribution. On July 24, 1981, after further hearings, the trial court issued an order dividing the personal property of the parties. This is the second order on appeal.

The issues on appeal from the first order are whether the trial court erred in (1) determining that D.C.Code 1981, § 16-910(b) governed the distribution of the real and personal property located at 5045 Klingle Street; (2) failing to include or consider appellee's pension and retirement benefits in distributing the property; (3) failing to dismiss appellee's counterclaim and supplemental counterclaim due to his invocation of the Fifth Amendment privilege against self-incrimination on the issue of adultery; and (4) failing to hold appellee in contempt of court for non-compliance with the court's pendente lite support order. Those on appeal of the second order are whether the court erred in (1) interpreting this court's remand order, (2) determining that the household furniture and furnishings were subject to distribution by the trial court, and (3) distributing the contents of 5045 Klingle Street in accordance with D.C.Code 1981, § 16-910(b). We consider the issues seriatim, and affirm.

I

Appellant posited at trial that the house at 5045 Klingle Street was subject to distribution by the court under D.C.Code 1981, § 16-910(b), which provides for the distribution of all "other property." On appeal, she contends that the house was not subject to distribution by the trial court because it was her sole and separate property either under a post-nuptial agreement between herself and the appellee or by gift from the appellee. Under D.C.Code 1981, § 16-910, sole and separate property acquired during the marriage by gift must be assigned to the donee; property acquired by a post-nuptial agreement passes under the terms of the agreement. Neither is subject to discretionary distribution by the trial court.¹

Parties may not assert one theory at trial and another theory on appeal. Miller v. Avirom, 127 U.S.App.D.C. 367, 384 F.2d 319 (1967). Accordingly, appellant is estopped from reversing her contentions and arguing on appeal of the December 18, 1979 order that the house was not subject to distribution by the trial court under D.C.Code 1981, § 16-910(b). We note that the trial court did not distribute the contents of the house under its first order pursuant to the parties' representations that they would try to divide their personal property themselves. The effect of the alleged post-nuptial agreement on the house contents is discussed infra.²

Appellant's second claim of error, that the trial court failed to include or consider appellee's retirement and pension benefits in distributing the property, must fail because appellant did not request the trial court to divide these benefits. The court noted this fact in its supplemental findings of fact, finding that "no request was made at trial for a division of defendant's pension rights. Plaintiff's attorney urged at trial only that the Court consider its existence as one factor to be taken into account in ruling upon the disposition to be made of the real property acquired by the parties during the marriage."³ Although appellee's counterclaim requested a division of the "personal property accumulated by the parties during their marriage," this request was not specific enough to put the trial court on notice that appellant wanted a distribution of appellee's retirement and pension benefits. This conclusion is even more compelling in light of the parties' representation to the court that they would divide their personal property between themselves without the court's aid.

Despite appellant's contentions to the contrary, we also conclude that the trial court considered all of the factors enumerated in D.C.Code 1981, § 16-910(b), including appellant's poor health and lack of substantial employment experience, and both parties' future earning power. The court acted within its discretion and made an equitable, just and reasonable distribution of the marital property.

Third, appellant asserts that appellee's counterclaim and supplemental counterclaim should not have been considered by the trial court because appellee invoked the Fifth Amendment in answer to questions (in his deposition and at trial) concerning his alleged adultery. Because adultery constitutes criminal conduct in the District,⁴ it was proper for appellee to invoke his privilege in response to questions on that topic. Sanders v. Sanders, 105 Wash.D.L.Rep. 943 (May 31, 1977); see Mahne v. Mahne, 66 N.J. 53, 55, 328 A.2d 225, 226 (1974). However, when a civil litigant invokes the Fifth Amendment to prevent discovery, he is subject to non-criminal sanctions. See id. at 56, 328 A.2d at 226; Levin v. Levin, 129 N.J.Super. 142, 322 A.2d 486 (1974). The trial court has a broad choice of sanctions to impose when dealing with the good faith exercise of privilege in civil litigation. Mahne v. Mahne, supra, 66 N.J. at 61, 328 A.2d at 229.

In sanctioning invocation of the privilege against self-incrimination, the trial court strives to strike a proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege, id., shielding witnesses from incriminating effects of their testimony. Id. at 58, 328 A.2d at 227. When a plaintiff invokes the privilege, he risks having his suit dismissed. Id. See Sanders v. Sanders, supra. This harsh penalty is designed to prevent a plaintiff from bringing a defendant involuntarily into court and then undermining his defense or counterclaim. Id. See Mahne v. Mahne, supra at 59, 328 A.2d at 228. It is generally considered inequitable to put the defendant, an unwilling litigant, in the position of having to choose between, on the one hand, asserting the privilege and having his counterclaim dismissed or, on the other hand, waiving the privilege and maintaining his counterclaim. See Sanders v. Sanders, supra; Mahne v. Mahne, supra at 60, 328 A.2d 228. Thus, contrary to appellant's contention, a trial judge is not required to strike a defendant's affirmative counterclaim when he invokes the privilege, although lesser sanctions may be invoked. Id.

In Mahne, supra, the plaintiff alleged adultery, and the defendant counterclaimed asserting cruelty. When the defendant invoked the Fifth Amendment on the adultery claim, the court held that the sanction of striking the defendant's counterclaim was unwarranted since the alleged adultery had no bearing on the cruelty claim.⁵ In the case at bar, appellee invoked the Fifth Amendment solely on questions concerning the issue of adultery raised in appellant's complaint. In his counterclaim, appellee requested a divorce on the ground of living separate and apart for more than one year and a division of property. As in Mahne, appellee's counterclaim had no bearing on the alleged adultery. We conclude that the trial court was within its discretion in declining to sanction the appellee for his invocation of the privilege.

Appellant's final contention on appeal of the divorce order is that the trial court erroneously refused to hold appellee in contempt of court for failure to obey an order requiring appellee to pay alimony pendente lite of $2,500 per month, real estate taxes on 5045 Klingle Street, N.W., and medical bills, costs, and insurance premiums for appellant. The parties stipulated that on the hearing date, October 15, 1979, appellee was $1,000 in arrears under the order and that appellee had not yet paid $904.87 in real estate taxes due on September 17, 1979.

Persons subject to a court order to pay alimony pendente lite may be held in contempt of court and are subject to attachment, garnishment and/or imprisonment for non-compliance. D.C.Code 1981, § 16-911. When a motion for contempt is filed, the movant must first prove non-compliance with the order. Bolden v. Bolden, D.C. App., 376 A.2d 430, 433 (1977). In the instant case, appellant satisfied that burden with the above stipulations. To imprison for contempt, the movant must also prove the alleged contemnor's ability to pay. Id. at 433, citing Lundregan v. Lundregan, 102 U.S.App.D.C. 259, 252 F.2d 823 (1958).

The alleged contemnor can avoid sanctions for noncompliance by a showing of inability to perform or substantial performance. Id. at 432. Here, appellee introduced evidence showing that his income fell because his employer required him to reduce the number of outside speaking engagements he could accept. He also proved that he had added expenses due to his daughter's wedding. This evidence tends to prove justification for noncompliance with the order. Moreover, appellee showed substantial compliance with the court ...