Mumma v. Mumma, 5574.

• Decision Date: 02 August 1971
• Docket Number: No. 5574.,5574.
• Citation: 280 A.2d 73
• Parties: Albert G. MUMMA, Jr., Appellant, v. Jean M. MUMMA, Appellee.
• Court: D.C. Court of Appeals

Page 73

280 A.2d 73

Albert G. MUMMA, Jr., Appellant, v. Jean M. MUMMA, Appellee.

No. 5574.

District of Columbia Court of Appeals.

Argued April 13, 1971.

Decided August 2, 1971.

Philip Shinberg, Washington, D. C., for appellant.

Elizabeth Guhring, Washington, D. C., for appellee.

Before GALLAGHER, REILLY and YEAGLEY, Associate Judges.

PER CURIAM:

This is an appeal from certain supplementary provisions contained in a judgment granting a wife an absolute divorce. The husband in this appeal does not challenge the divorce decree itself but assigns as error, portions of the judgment relating to (a) division of holdings in real property, (b) the amount of alimony and child support, (c) payment of fees to the wife's attorney, and (d) a restriction on the husband's visitational rights to his children.

The parties to this litigation were married in 1952 and the issue of the marriage consists of three children, all minors. During their married life the family was supported by the husband's earnings as an architect, but it was not until 1963 that he began to practice his profession independently in an office he opened in Georgetown. At about this period the husband purchased a house for the family residence on nearby 35th Street, and subsequently, a small building on Wisconsin Avenue with space for an architect's office and a three room apartment. There is a first mortgage on both properties. Title to both places was in the name of husband and wife as tenants by the entirety, although interest and amortization payments to the mortgagees were provided by the husband. Prior to the divorce proceedings, the husband had also become the owner of two unimproved parcels of land in Langley, Virginia. Title to these lots was in the husband's name alone.

In January of 1968, the couple separated. This parting was the result of a violent altercation in the late evening between wife and husband, culminating in police intervention. The husband was taken to a precinct station — at the wife's request — where he was detained overnight, and on the next day, determined not to return to the marital abode. On that same day, unknown to him, the wife retained an attorney.

In the following month the husband met a lady employed as a writer by a government agency. Shortly thereafter they decided to live together and at the time of the hearing in the court below, were occupying the apartment in the building where the husband has his office. This relationship, which the husband did not deny, was the basis for the wife's obtaining a divorce on the ground of adultery, although, as the trial judge pointed out, she was also entitled to a decree — as two years had elapsed since cohabitation — on the basis of desertion or voluntary separation.

Besides awarding custody of the children, alimony, child support allowance, and specified legal expenses to the wife, the trial judge also made a division of real property. The court awarded the office building to the husband and the 35th Street house and its contents to the wife, the tenancy by the entirety in each property having been dissolved by entry of the divorce decree pursuant to the provisions of D.C. Code 1967, § 16-910. With respect to the land in Langley, Virginia, the court ordered the wife to be given an equal share, despite the fact that title to such property was held only by the husband and that the wife had advanced no money for its purchase.

The husband's first objection to the court's decree with respect to the real estate is to the disposition of the Georgetown properties, his contention being that the equity in the marital abode was substantially more valuable than his corresponding investment in the Wisconsin Avenue building.¹ He argues that this feature of the award was inequitable under the statute providing for dissolution of a joint tenancy or tenancy by the entirety upon a final decree of absolute divorce, and authorizing court apportionment "in a manner that seems to him equitable, just, and reasonable". D.C.Code 1967, § 16-910. It is well established, however, that this section of the code vests the trial judge with considerable discretion. Slaughter v. Slaughter, 83 U.S.App.D.C. 301, 171 F.2d 129 (1948), and does not require fiscal equality, Oxley v. Oxley, 81 U.S.App.D.C. 346, 159 F.2d 10 (1946); Richardson v. Richardson, 72 App.D.C. 67, 112 F.2d 19 (1940). Accordingly, there are no grounds for overruling this portion of the decree.

The objection to the disposition of the Virginia property is well taken, however. It appears on the face of the statute that only jointly held property may be apportioned pursuant thereto, and that has been the interpretation adopted by the courts. Hunt v. Hunt, D.C.App., 208 A.2d 731 (1965); Mazique v. Mazique, D.C.App., 206 A.2d 577 (1965), aff'd on other grounds, 123 U.S.App.D.C. 48, 356 F.2d 801, cert. denied, 384 U.S. 981, 86 S.Ct. 1882, 16 L.Ed.2d 691 (1966); Posnick v. Posnick, D.C.Mun.App., 160 A.2d 804 (1960); Tendrich v. Tendrich, 90 U.S.App. D.C. 61, 193 F.2d 368 (1951); Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 188 F.2d 31 (1951); Reilly v. Reilly, 86 U.S.App. D.C. 345, 182 F.2d 108, cert. denied, 340 U.S. 865, 71 S.Ct. 90, 95 L.Ed. 632 (1950).

Any judicial authority to award property not jointly held has been found rather in the general equity power. In Wheeler, supra, a suit for absolute divorce, where the court below had awarded the wife a portion of the husband's solely owned property, the court, after rejecting the contention that such property could be awarded under a previous version of D.C. Code 1967, § 16-910, set out the standard applicable to this case:

If the wife were found to have some interest, some claim of right, whether legal or equitable, in the property involved, the answer would be at hand: it is settled that in a divorce proceeding the court may adjudicate the property rights of the spouses, and award the wife property which belongs to her. Reilly v. Reilly, 86 U.S.App.D.C. 345, 182 F.2d 108. It is not clear whether the instant case was decided on such a basis. We cannot tell from the findings made by the District Court whether it predicated the award upon a determination that the wife had a legal or equitable interest in the property, or whether it merely decided that because of the contributions she had made toward the maintenance of the household she should be given a share of the property. If the court acted upon the latter premise, the award does not fall within the ambit of the Reilly decision, and the question remains whether the court exceeded its authority. Wheeler, supra, 188 F.2d at 32.

The courts have been hesitant...