Macklin v. Johnson

• Court: District of Columbia Court of Appeals
• Decided: February 10, 2022
• Docket: 18-FM-976 & 18-FM-1153
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-FM-976 & 18-FM-1153

BRIAN D. MACKLIN, APPELLANT,

V.

JANAI T. JOHNSON, APPELLEE.

Appeal from the Superior Court of the District of Columbia (DRB-2488-16)

(Hon. Julie H. Becker, Trial Judge)

(Argued September 29, 2020 Decided February 10, 2022)

Brian D. Macklin, pro se.

Cali Cope-Kasten, with whom Henry J. Brewster was on the brief, for appellee.

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

Opinion of the court by Associate Judge DEAHL.

Dissenting opinion by Senior Judge RUIZ at page 33.

DEAHL, Associate Judge: Brian Macklin and Janai Johnson were married

for thirteen years and have five children together. Following divorce proceedings, 2

the Superior Court of the District of Columbia ordered that the parties share joint

physical and legal custody of their children while granting Ms. Johnson primary

custody and final decision-making authority. It also awarded Ms. Johnson a 40%

equitable interest in the home the family shared for more than a decade, even

though Mr. Macklin purchased it individually three years before the marriage. On

appeal, Mr. Macklin challenges the court’s custody ruling. He also contends the

court erred in granting Ms. Johnson any equitable interest in the home and, in the

alternative, that it erred by failing to deduct the pre-marital equity he had accrued

in the home before apportioning her interest in it.

On the issue of custody, we see no reversible error. While the facts might

have supported a custody arrangement more favorable to Mr. Macklin, the

Superior Court carefully scrutinized the record and drew a reasonable conclusion

after considering the appropriate factors, so we are bound to uphold its ruling. As

to the property distribution, we hold as a matter of first impression that substantial

“homemaker” services are a permissible basis for granting a spouse an equitable

interest in the other’s separately-held real property and detect no error in granting

Ms. Johnson an equitable interest in the family home on that basis. Finally, while

Mr. Macklin is correct that the trial court was obliged to deduct any pre-marital

equity he had in the home before awarding Ms. Johnson an interest in the 3

remainder, the trial court did not contravene that approach. It simply found Mr.

Macklin had no pre-marital equity in the home because all of its appreciation

occurred during the marriage—rather than beforehand, as Mr. Macklin

maintains—and because Mr. Macklin’s outstanding mortgage debt on the home

exceeded its value at the time the parties married. In short, every bit of equity in

the home was marital equity under the trial court’s reasoning. That conclusion is

adequately supported by the record. We thus affirm the trial court’s judgment.

I.

Mr. Macklin purchased his house—later the family home—in February

2002, and he has remained the sole titleholder of the property at all relevant times.

The house is located at 55 Quincy Place NW. Shortly after buying it, Mr. Macklin

undertook substantial renovations to convert it from a multi-unit to a single-family

house. That same year he met Ms. Johnson. At the time, he owned and operated a

valet parking business, while she worked as an administrative assistant and

waitress. After a year or so of dating, in 2003, they had their first of five children,

A.M., and Ms. Johnson moved in with Mr. Macklin shortly thereafter, around

January 2004. They had four more children over the next decade: K.M., R.M.,

C.M., and I.M. The parties married on April 19, 2005. 4

While Ms. Johnson worked four to five years during the marriage, she spent

the bulk of their marriage caring for the children and the household. She would

typically do the cooking, cleaning, and laundry, plus she would transport the

children to and from school. As marriages sometimes go, theirs hit a rough patch

in 2010 and Ms. Johnson began a months-long extramarital affair. She moved out

of the family home for a time, but later moved back in and the parties reconciled

toward the end of 2010. Ms. Johnson began another affair in 2015, and when Mr.

Macklin learned of it, they had an altercation resulting in Mr. Macklin moving out

of the home while Ms. Johnson stayed with the children. 1 Several months later,

Mr. Macklin returned to the home and Ms. Johnson and the children moved out.

1 The trial court recounted evidence that, during the marriage, both “parties were physically violent toward each other on several occasions and that each bears some responsibility for this aspect of their relationship.” Because the court did not materially rely on these incidents in rendering its decision, we do not discuss them at length here. There was also some evidence that Mr. Macklin was physically violent toward the children on occasion, though for the same reason, we do not detail the evidence here. Just one purported incident merits further discussion: The trial court found that on one occasion in or around 2017, Mr. Macklin “threw” his daughter K.M. against a wall. The court credited “to a point” Mr. Macklin’s claim that, rather than throwing her into a wall, he merely grabbed her by the shirt, which caused her to misstep and fall. Still, it found that, whatever happened, Mr. Macklin applied force against his daughter “that was neither reasonable in manner nor moderate in degree.” 5

Both parties filed for divorce in late 2016. Following a six-day bench trial,

the Superior Court granted the parties’ mutual request for an absolute divorce. The

court ordered joint physical and legal custody of the children while granting Ms.

Johnson primary custody and final decision-making authority over them. By the

order’s terms, the children would spend every other weekend with Mr. Macklin—

from Thursday afternoon to Monday morning—with two caveats. A.M. requested

additional time with his father, which the court granted by extending the every-

other-weekend visits to Tuesday morning in his case. K.M., on the other hand, had

a strained relationship with her father and did not want to spend weekends with

him, so the court did not order her to do so. It did, at Mr. Macklin’s request, order

that her visitation “take place in the context of family therapy.”

The court also awarded Ms. Johnson a 40% equitable interest in the home.

In calculating that amount, the court took the home’s market value at the time of

divorce ($784,000) and deducted the existing mortgage on the property ($227,000),

as well as the estimated sales costs (6% of $784,000, or $47,040), arriving at a

“cash-out” value of $509,960. It then awarded Ms. Johnson 40% of this figure, or

$203,984. The Court explained that it credited Ms. Johnson’s expert’s testimony

that “essentially all of the appreciation” in the home “occurred during the

marriage.” That is because the mortgage balance ($227,000) was greater than the 6

price Mr. Macklin had paid for the home in 2002 ($225,000), which—based on the

record—was the apparent value of the home when the parties married. In other

words, all of the equity in the home accrued during the marriage and, in fact, Mr.

Macklin owed about $2,000 more on his mortgage than what the home was worth

at the time the parties married.

Mr. Macklin now brings this timely appeal.

II.

We first examine the child custody ruling. Mr. Macklin argued at trial that

an equally shared schedule would best serve the children’s interest, which is of

paramount concern when fashioning custody arrangements. See D.C. Code § 16-

914(a)(1)(A) (2012 Repl.). But the trial court, while ordering that the parties share

joint legal and physical custody of the children, 2 agreed with Ms. Johnson that the

2 “‘Legal custody’ means legal responsibility for a child. The term ‘legal custody’ includes the right to make decisions regarding that child’s health, education, and general welfare, the right to access the child’s educational, medical, psychological, dental, or other records, and the right to speak with and obtain information regarding the child from school officials, health care providers, counselors, or other persons interacting with the child.” D.C. Code § 16- 914(a)(1)(B)(i). “‘Physical custody’ means a child’s living arrangements. The term ‘physical custody’ includes a child’s residency or visitation schedule.” Id. § 16-914(a)(1)(B)(ii). 7

children were best off with her as the primary physical custodian, granting Mr.

Macklin the limited visitation rights outlined above. Mr. Macklin challenges this

ruling on two grounds. First, he contends that “50/50 custody is presumed in cases

with no abuse,” and that the Superior Court failed to heed that purported

presumption. Second, he asserts that the court abused its discretion in awarding

Ms. Johnson primary physical custody because “the findings of the court do not

match the facts of this case.” We review these arguments in turn and conclude that

neither merits reversal.

A.

Mr. Macklin first alleges the trial court erroneously diverged from a

presumption of equal custody. We review such challenges to a trial court’s

application of legal standards de novo. See In re T.H., 898 A.2d 908, 911 (D.C.

2006). Mr. Macklin’s argument fails because it rests on a misunderstanding of the

controlling law. Equal custody is not the “presumed” arrangement in the District

in the absence of domestic abuse, as Mr. Macklin asserts. Rather, joint custody is

presumptively in the children’s best interests in the absence of one or more intra- 8

family offenses. 3 See D.C. Code § 16-914(a)(2). And, contrary to Mr. Macklin’s

position, joint custody is not synonymous with equal, or “50/50,” custody.

We made this clear in Estopina v. O’Brian, 68 A.3d 790 (D.C. 2013), where

we explained that a “custody arrangement constitutes ‘joint physical custody’ so

long as it involves some sort of shared custody, such as primary physical custody

awarded to one parent and visitation rights to another.” Id. at 792; see also

Hutchins v. Compton, 917 A.2d 680, 682 (D.C. 2007) (“Joint physical custody

may, but need not, be on a 50/50 basis.”) (cleaned up). As in Estopina, the trial

court’s custody order granting the parties shared custody, while awarding one

parent primary physical custody and the other visitation, satisfies § 16-914(a)(2)’s

definition of “joint custody.” The trial court thus did not fail to honor the

presumption in favor of joint custody. That is exactly what it awarded.

B.

Mr. Macklin next argues that the trial court’s custody determination, and its

factual findings, are not supported by the record. We accord “great deference” to a

3 As recounted supra note 1, there was some evidence of intra-family violence, but it did not factor into the trial court’s custody determination. 9

trial court’s child custody determinations, Prost v. Greene, 652 A.2d 621, 626

(D.C. 1995), which reach this court “with a presumption of correctness.” In re

C.T., 724 A.2d 590, 597 (D.C. 1999). We review the trial court’s findings of fact

for clear error, In re A.C.G., 894 A.2d 436, 439 (D.C. 2006), and will “reverse a

trial court’s custody decision only upon a finding of an abuse of discretion,”

Estopina, 68 A.3d at 793. In applying these standards, we first look to whether the

trial court considered “all relevant factors and no improper factor,” and then we

“evaluate whether the decision is supported by substantial reasoning . . . drawn

from a firm factual foundation in the record.” In re A.M., 589 A.2d 1252, 1257-58

(D.C. 1991) (internal quotation marks omitted). That the record might have

supported a different outcome is no basis for upending the trial court’s decision.

Prost, 652 A.2d at 626.

In this matter, the trial court weighed all appropriate factors without

considering any inappropriate one. Indeed, the court carefully walked through all

seventeen factors necessary to determining the children’s best interests under D.C.

Code § 16-914(a)(3). Three factors in particular animated the court’s physical

custody decision:

(A) the wishes of the child as to his or her custodian, where practicable; 10

(B) the wishes of the child’s parent or parents as to the child’s custody; [and]

(C) the interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may emotionally or psychologically affect the child’s best interest.

Id.

Relevant to the first two factors, all three children who testified, as well as

Ms. Johnson, expressed a desire to maintain their existing custody arrangement,

under which Ms. Johnson had primary physical custody of the children while Mr.

Macklin had more limited visitation rights. Ms. Johnson’s “central reason” for

seeking primary physical custody on a permanent basis was “continuity.” “[S]he

testified that she wishes to keep the current custody schedule because she believes

it is working well for the children, and she prefers not to disrupt the routine they

have finally been able to establish.” The trial court agreed: “[G]iven the upheaval

the family has experienced over the past two years,” “stability is an important

consideration.” Mr. Macklin had a different preference, as pertinent to the second

factor, which the trial court acknowledged. But his preference ultimately could not

overcome the other factors favoring the ordered custody arrangement. The third

factor likewise supports the court’s decision. Despite finding that both parents had

generally strong relationships with the children, the court was troubled by its 11

finding that the parties’ daughter K.M. had no desire to see her father or have any

relationship with him.

The facts supporting these findings all have a firm factual foundation in the

record. See In re A.M., 589 A.2d at 1257-58. In fact, Mr. Macklin does not

dispute that the children preferred to maintain the then-existing custody

arrangement. And the court’s chief rationales for awarding Ms. Johnson primary

physical custody—honoring the children’s wishes, and maintaining a stable

environment for them—constitute “substantial reasoning.” See P.F. v. N.C., 953

A.2d 1107, 1117 (D.C. 2008) (courts are “obliged to include” children’s wishes in

their calculus); Estopina, 68 A.3d at 794 (“stability and continuity” are important

considerations in deciding custody petitions involving requests for geographic

relocation).

The court carefully and thoroughly evaluated each of the remaining fourteen

factors set forth in § 16-914(a)(3), and made findings as to each of them, as

required. See Dumas v. Woods, 914 A.2d 676, 679 (D.C. 2007). It deemed four

factors inapplicable or marginally applicable, while signaling that none of the

remaining factors weighed strongly in either party’s favor. 12

Mr. Macklin faults the trial court for relying on Ms. Johnson’s accusations

of domestic abuse in rendering its custody order, as he contends they were

unsubstantiated. We might interpret this argument in either of two ways, but

neither is persuasive. To the extent Mr. Macklin claims the court’s custody ruling

is itself predicated on Ms. Johnson’s allegations of abuse, we disagree. The court

expressly did not rely on these allegations in rendering its custody decision. See

supra note 1. While it mentioned them in its findings, it ultimately could not say

that they supported either party’s claim for custody.

We might alternatively construe Mr. Macklin’s argument to be that the trial

court erred by essentially extending a temporary custody order Ms. Johnson

secured through false accusations, in Mr. Macklin’s telling. For several reasons,

that argument fails as well. The temporary custody order, entered December 15,

2016, makes no mention of any allegation of abuse, and the record from that

proceeding is not part of the record on appeal. See D.C. App. R. 10(b)(2) (“If the

appellant intends to urge on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant must include in the record

a transcript of all evidence relevant to that finding or conclusion.”) (citation

omitted). More fundamentally, Mr. Macklin failed to identify any legal error that

the trial court committed by extending the temporary custody arrangement, and we 13

perceive none. The court acted within its discretion to conclude that the existing

arrangement was in the children’s best interests irrespective of the rationale

underlying the prior temporary custody order.

Mr. Macklin further charges that the trial court failed to consider evidence

involving Ms. Johnson’s marijuana use and extramarital affairs, but this point is

equally unavailing. The court acknowledged Ms. Johnson’s personal failings and

found that they contributed to the deterioration of the parties’ marriage. Though

Mr. Macklin testified that the affairs diverted her from her parenting

responsibilities, the trial court apparently determined they did not justify a different

custody arrangement from the one ordered. We do not think it abused its

discretion by doing so. See Johnson v. Washington, 756 A.2d 411, 418 (D.C.

2000) (“Child custody cases present complex factual situations, and we necessarily

rely on the trial court’s careful balancing of the various factors that may impact the

child.”).

In sum, our review of the record reveals no “clearly erroneous findings of

fact,” and we conclude that the court’s ultimate custody decision is supported by a

careful analysis of the seventeen statutory factors. We acknowledge that some

judges might have weighed the relevant facts and factors differently, but our role is 14

not to reweigh the evidence. See Dorsett v. Dorsett, 281 A.2d 290, 292 (D.C.

1971) (“We cannot say that in this instance the trial judge abused his discretion,

even though other evidence in the record might have led us to uphold a decision

going the opposite way.”). We are satisfied that the trial court did not abuse its

discretion in granting Ms. Johnson primary physical custody of the parties’ five

children.

Finally, we turn to the trial court’s legal custody decision granting Ms.

Johnson final decision-making authority over matters on which the parties could

not agree. While the court rejected Ms. Johnson’s request for sole legal custody, it

determined that one parent must have final authority, in light of the parties’ “very

limited capacity to reach joint decisions about the children’s welfare.” Without

assigning blame for this inability to reach joint decisions, the court found Ms.

Johnson the “more practical choice given that the children will be with her the

majority of the time.” Importantly, in making custody rulings, § 16-914(a) directs

the court to consider “the capacity of the parents to communicate and reach shared

decisions affecting the child’s welfare.” D.C. § 16-914(a)(3)(6). The court did not

abuse its discretion by considering this factor and granting Ms. Johnson final

decision-making authority based on sheer practicality. We accordingly affirm the

trial court’s physical and legal custody determinations. 15

III.

We next examine the Superior Court’s distribution of equity in the family

home Mr. Macklin purchased individually prior to the marriage. Mr. Macklin

challenges the order on three bases. He first suggests that non-financial

homemaker contributions are not an appropriate basis to award an equitable

interest in separately-held property. Next, he argues that even if homemaker

services might be a basis for awarding the non-titled spouse an equitable interest in

separately-owned property, the trial court’s finding that Ms. Johnson rendered

substantial services in that respect was unsupported by the record. Finally, he

argues that even if he is wrong on the first two points, the court erroneously failed

to deduct his pre-marital equity in the home before computing Ms. Johnson’s

interest in it, which had the effect of inflating her award at his expense. We

address these arguments in turn.

In distributing property upon divorce, the District of Columbia Marriage and

Divorce Act requires the trial court to first “assign to each party his or her sole

separate property acquired prior to the marriage.” D.C. Code § 16-910(a). The

court must then “value and distribute all other property and debt accumulated 16

during the marriage . . . in a manner that is equitable, just, and reasonable.” Id. §

16-910(b). Mr. Macklin argues that the trial court contravened the Marriage and

Divorce Act by granting Ms. Johnson an interest in his separately-owned home. In

other words, he contends the trial court committed legal error when it failed to

assign him his “sole or separate property acquired prior to the marriage,” and

mistakenly treated his home as marital property subject to division between the

parties.

The premise of Mr. Macklin’s argument is mistaken. The trial court did not

treat the family home as marital property, but instead correctly determined that the

house qualifies as Mr. Macklin’s “sole separate property” under § 16-910(a), so

that he alone had an ownership interest in it. See Ealey v. Ealey, 596 A.2d 43, 47

(D.C. 1991) (real property “acquired prior to the marriage remains the separate and

sole property of the acquiring spouse” even where “the non-purchasing spouse has

contributed marital funds to pay off the mortgage”). Rather than granting Ms.

Johnson an ownership interest in the house under § 16-910(a), the court invoked its

general equity power to grant her an equitable interest in the property. See Bansda

v. Wheeler, 995 A.2d 189, 199-200 (D.C. 2010). An equitable interest “encumbers

the property, but it does not give the [non-purchasing spouse] any ownership or

possessory interest.” Yeldell v. Yeldell, 551 A.2d 832, 836 (D.C. 1988) (collecting 17

cases). Ms. Johnson does not have any say in what Mr. Macklin does with the

property or in how he disposes of it (aside from enforcing her lien); nor does she

have any claim to any part of the property’s future appreciation. Those are rights

that remain with the property’s sole owner, Mr. Macklin, as the statute demands.

The distinction is critical. Our cases have long recognized courts’ equitable

power to encumber non-marital property in this manner. In Brice v. Brice, 411

A.2d 340 (D.C. 1980), we acknowledged that our courts are permitted to confer an

equitable interest in one spouse in property owned by the other upon dissolution of

the marriage, where “‘some right or element of ownership, legal or equitable,’

could be found in the spouse who did not hold title.” Id. at 343 (quoting Wheeler

v. Wheeler, 188 F.2d 31, 33 (D.C. Cir. 1951)). We further noted that by enacting

the Marriage and Divorce Act, the D.C. Council evinced no intent to “abolish or

restrict this long-standing approach.” Brice, 411 A.2d at 343. Indeed, the

Marriage and Divorce Act largely codified existing case law, which served to

liberalize divorce law in the District. See generally Samuel Green & John V.

Long, The Real and Illusory Changes of the 1977 Marriage and Divorce Act, 27

CATH. U. L. REV. 469 (1978). Thus, following that Act’s passage, courts in our

jurisdiction continue to have “broad discretion” to grant non-purchasing spouses an

equitable interest in separately-owned property. Brice, 411 A.2d at 343. 18

Eight years later in Yeldell, we went a step further. There, we affirmed the

trial court’s decision to grant one spouse an equitable interest in the other’s house

on account of the former’s $50,000 in contributions toward the mortgage on the

property, twice the value of the latter’s down payment. 551 A.2d at 833-34. To be

sure, we made clear that D.C. Code § 16-910 forecloses a court from assigning a

non-purchasing spouse an ownership interest in sole and separate property

acquired prior to the marriage. Id. at 835. Yet we held that a trial court could

grant a non-purchasing spouse an equitable interest in the property as a result of

their substantial financial contributions toward the property during the marriage.

Id.; see also Bansda, 995 A.2d at 199 (providing that a non-titled spouse can

establish an equitable interest in the titled spouse’s property by proving

“substantial contributions to the home”); Abulqasim v. Mahmoud, 49 A.3d 828,

838-39 (D.C. 2012) (“sole and separate ownership” does not preclude a court from

encumbering a property with an equitable lien in the other spouse’s favor).

Mr. Macklin further suggests that, even if monetary contributions are a basis

to award a spouse an equitable interest in the other’s separately-held property,

homemaker services—childrearing, cooking, cleaning, daily chores, etc.—are not.

Our precedents have not resolved this issue. Ealey, 596 A.2d at 48; see also Araya

v. Keleta, 31 A.3d 78, 80 n.2 (D.C. 2011) (“[W]e have not squarely decided 19

whether such intangible contributions alone can create an equitable interest in real

property.”). Today, we hold as a matter of first impression that substantial

homemaker services can indeed entitle a spouse to an equitable interest in real

property purchased by the other spouse before the marriage and used as the family

home.

We have hinted at this conclusion in prior cases, albeit always in dicta.

Araya v. Keleta, 65 A.3d 40, 52 n.18 (D.C. 2013) (“Araya II”) (noting that earlier

cases suggest that “homemaker contributions . . . may suffice . . . [to] entitle a

spouse to an equitable interest in the other spouse’s separate property”) (internal

quotations and citation omitted); Yeldell, 551 A.2d at 836 (suggesting that “a

husband whose wife did not work would generally not recover all of his

contributions because the wife would be entitled to some credit for her

homemaking services”) (footnote omitted); Ealey, 596 A.2d at 50 (affirming that

“[t]wenty-three years of homemaker services may well entitle a spouse to an

equitable interest under some circumstances”). In Darling v. Darling, 444 A.2d 20

(D.C. 1982), we acknowledged that a spouse’s “substantial and extensive” non-

financial contributions to another’s separately-held business, “all without pay,”

could give rise to “an equitable interest in the business.” Id. at 24-25. That case

concerned a wife who had remodeled and decorated her husband’s business, 20

managed it when he was on travel, maintained the mailing list, performed

numerous administrative duties, and helped her husband prepare for sales events.

Id. at 25.

These cases balked at any rigid distinctions between a spouse’s financial

contributions to an enterprise, on the one hand, and their uncompensated yet

valuable contributions to the same enterprise, on the other. As the trial court

correctly recognized, “one spouse’s work in caring for the home and children”

enables the other “to earn money to support the family,” including the money

necessary to pay any existing mortgage on the property. We have expressly

acknowledged as much in the context of dividing marital property. Araya II, 65

A.3d at 53 (finding that “the wife contributed substantially to the marriage by

bearing and raising the children and freeing the husband to build his practice and

pursue his business ventures”). Absent these domestic services, the titled spouse

would have had less time and/or income to maintain the property, whereas the non-

titled spouse would have had more of an opportunity to acquire income to

contribute financially. In fact, § 16-910(b)(7) expressly directs the trial court to

consider “each party’s contribution as a homemaker or otherwise to the family

unit” when distributing marital property. There is no good reason to treat one

spouse’s homemaking contributions as having a beneficial impact on marital 21

property housing a family, but not on separate property doing the same.

Homemaker services are, therefore, pertinent when considering whether to award

an equitable interest in separately-held property as well. 4

Most courts to have considered this issue have reached similar conclusions.

See, e.g., Hanaway v. Hanaway, 527 N.W.2d 792, 800 (Mich. Ct. App. 1995)

(homemaking and childrearing qualify as contributions to the “acquisition,

improvement, or accumulation” of separate property under Michigan’s statute

governing property distribution upon divorce); Marks v. Marks, 432 S.W.3d 698,

702 (Ark. Ct. App. 2014) (affirming award of husband’s separate property to wife

where wife lived in property for twenty years, maintained and preserved it,

rendered homemaker services, and cared for adult child with a disability); Beightol

v. Beightol, 367 S.E.2d 347, 349-50 (N.C. Ct. App. 1988) (homemaking activities

by a non-titled spouse which increased the value of the titled spouse’s property can

entitle the former to an equitable interest in the property); Roel v. Roel, 406

N.W.2d 619, 622 (Minn. Ct. App. 1987) (unfair hardship justified awarding wife

4 Section 16-910(b)(7) lists twelve relevant, though non-exhaustive, factors that a trial court might consider when divvying up marital property. While those factors do not affect § 16-910(a)’s command that each party shall be assigned “his or her sole and separate property,” each of them may inform whether and to what extent a spouse is entitled to an equitable interest in such separately-held property. 22

an equitable interest in husband’s non-marital property where wife “spent most of

thirty-year marriage raising the parties’ three children,” lacked employment

experience, and suffered from serious health issues).

At least one jurisdiction has reached the opposite conclusion, albeit for

reasons we find unpersuasive. Utah courts, applying a statute providing for the

equitable division of separate property upon divorce, have rejected the position that

“household or family responsibilities” may provide a “standalone basis for

awarding” a non-titled spouse an equitable interest in the other’s property. Lindsey

v. Lindsey, 392 P.3d 968, 976 (Utah Ct. App. 2017); accord Jensen v. Jensen, 203

P.3d 1020 (Utah Ct. App. 2009). Lindsey reasoned that “the give-and-take often

inherent in marital relationships is generally not a sufficient basis for judicially

rewriting title to property” because “[t]he presumption that parties retain their

separate property at divorce would be rendered largely irrelevant if rebutted by any

spousal effort that freed the other spouse to work on his or her separate property.”

392 P.3d at 977. One might attempt to distinguish Lindsey from this case on the

basis that it concerned one spouse’s claim to an equitable share in the other’s

business, which is arguably more attenuated from homemaker services than an

equitable interest in the family home, as here. But we do not rest on that

distinction because Lindsey’s reasoning seems to apply just as readily to precluding 23

a spouse from claiming an equitable interest in a separately-held home based on

homemaker services. So we take its rationale head on, and do not agree that our

holding today will render the statutory directive that parties retain their separate

property at divorce “largely irrelevant.”

The directive retains its force because, as we have previously held, neither

“minimal” contributions to the home, Brice, 411 A.2d at 343-44, nor “sporadic”

services over an “undetermined period,” Mumma v. Mumma, 280 A.2d 73, 76

(D.C. 1971), will give rise to an equitable interest in separately-owned property in

the non-titled spouse. Rather, only substantial homemaking contributions can give

rise to an equitable interest in the other’s separate property. Cf. Bansda, 995 A.2d

at 199. There is thus no basis to think that, following today’s decision, courts will

begin “rewriting title to property” on account of “any spousal effort,” as Lindsey

dismissively put it. 392 P.3d at 970.

If that was indeed the concern animating Lindsey, then it brought a bludgeon

to do a scalpel’s work: that minimal homemaker contributions should not give rise

to an equitable interest in the other spouse’s separately-owned property is no

reason to preclude substantial contributions from doing so. Likewise, that

allocating domestic responsibilities is an inherent feature of marriage is no reason 24

to disregard the value of those responsibilities. A spouse’s non-monetary

contributions at home often free up the other to make the money necessary to pay a

mortgage on separately-owned property, and save the couple from the substantial

costs of paying for childcare and home upkeep. To blink these realities would do

violence to our consistent recognition that fairness sometimes demands that one

spouse receive an equitable interest in the other’s separate property. See, e.g.,

Darling, 444 A.2d at 24-25. In assessing one spouse’s equitable interest in the

other’s separately-owned property upon divorce, substantial homemaking

contributions may (and should) be taken into consideration.

Our dissenting colleague disagrees with our conclusion, though she agrees

with its core premises. Namely, she agrees that D.C. Code § 16-910 and our

precedents permit one spouse’s non-monetary contributions to give rise to an

equitable interest in the other’s separately held property. We have already

explained why that is so, and while our dissenting colleague at times seems to

voice some statutory and precedent-based concerns with that conclusion, she

ultimately reaches it herself. The only point of disagreement is that, in the

dissent’s view, a non-monetary contribution can give rise to an equitable interest in

separately held property only when it is a “direct contribution” to “the property”

itself. Post at 38 (citation omitted). We think that is an artificial constraint and the 25

dissent does not offer a persuasive rationale for it. 5 A homemaker’s contributions

to the home are no less worthy of recognition than a carpenter’s, and the dissent

does not explain how it makes sense to permit the latter’s contributions to give rise

to an equitable interest in a spouse’s separately owned home but not the former’s.

The dissent retorts that “the issue in this case is not whether a homemaker’s

contributions are valuable and should be recognized, but how.” Post at 39. Not

quite. The issue is very much whether a homemaker’s contributions are valuable

and should be recognized, and the dissent’s answer is a clear “no” in this case and

a broad sweep of cases like it. 6 Had roles been reversed, and Mr. Macklin been a

stay-at-home dad while Ms. Johnson made the money to pay off the mortgage

encumbering the house, then the dissent would recognize her equitable interest in 5 One rationale the dissent offers in defense of it is the need for an “adequate limiting principle,” as she does not think the requirement that the contributions be substantial is sufficient for that purpose. But that was not the only limiting principle guiding the trial court’s award, as it further limited Ms. Johnson’s award to a share of the equity that accrued in the home during the marriage, leaving Mr. Macklin’s pre-marital equity untouched. See infra Part III.C. We think that is also a sensible limiting principle. 6 These are not particularly novel facts. It is not anomalous for a couple’s assets to be tied up in home equity that accrues over the course of their marriage, despite the home being titled in only one spouse. To permit the non-titled spouse to share in the post-marriage equity only when her contributions fit within certain rigid categories—e.g., financial, masonry, woodwork—is not just an artificial and harsh rule, but one with a broader sweep than the dissent seems willing to acknowledge. 26

the property because her contributions would have come in the form of monetary

payments that the dissent deems cognizable. The dissent simply does not extend

the same recognition to a homemaker’s contributions.

Mr. Macklin next argues that even if substantial homemaker services might

give rise to an equitable interest in the other spouse’s separately held property, the

trial court erred in finding that Ms. Johnson made such substantial contributions to

the home and family. For this argument he relies on two of our precedents where

we agreed with the trial court’s conclusion that a spouse’s contributions were not

substantial. Bansda, 995 A.2d at 200; Brice, 411 A.2d at 343-44. In Bansda, we

saw “no basis for rejecting” the trial court’s conclusion that “there was no evidence

of homemaker contributions” by the non-titled spouse. 995 A.2d at 200. And in

Brice we likewise found the trial court’s description of such services as “minimal”

was “supported by the evidence.” 411 A.2d at 344. Here, the trial court reached

the opposite conclusion. It found Ms. Johnson’s contributions were “substantial”

in light of both her monetary contributions to the house while employed and her

role as a full-time mother, “sav[ing] the family a significant amount in child care 27

costs,” during the remaining years of the marriage. 7 While Mr. Macklin challenges

this finding as unsupported by the record, we do not share that assessment.

The record shows that Ms. Johnson was employed for roughly four or five

years of the parties’ marriage, and during that time, she deposited her full

paychecks into the parties’ joint checking account, from which the family paid all

of its bills, including the mortgage on the home. And while the court deemed her

monetary contributions minimal compared to Mr. Macklin’s, it found that when

she was not working, Ms. Johnson contributed substantially to the family because

“she was caring for the children and the household full-time.” Her responsibilities

included caring for the parties’ five children, cooking for the family, doing chores

and laundry, and transporting the children to and from school. The trial court

noted that by Ms. Johnson’s expert’s estimate, her household services saved the

couple about $48,000 a year in childcare expenses for their five children. Such a

contribution can hardly be described as minimal.

7 Ms. Johnson requested a 50% share of the house’s value, and the court agreed with her self-description as an “equal partner [throughout] the parties’ marriage.” Yet it granted her only a 40% interest in the home because (1) evidence showed that Mr. Macklin renovated the home when he first moved in, which increased its value, and (2) when Ms. Johnson moved out of the house in 2017, following the several-month period in which Mr. Macklin did not reside there, she left it with “moldy food, debris throughout, and a rat problem.” 28

Mr. Macklin’s trial counsel even acknowledged that Ms. Johnson was due

some equitable interest in the home in light of her minimal financial contributions.

When asked whether Ms. Johnson had an equitable interest in the home, Mr.

Macklin’s counsel replied, “Absolutely.” Counsel contested only the extent of the

interest to which Ms. Johnson was entitled, positing that she was due something

between “zero and maybe 20[%]” of the home’s value.

Mr. Macklin does not now resurrect the argument by contending Ms.

Johnson was entitled to some non-zero figure less than a 40% interest. He instead

challenges the Superior Court’s calculation of the dollar amount that reflects the

40% interest awarded to Ms. Johnson. More specifically, he contends that if Ms.

Johnson was indeed entitled to a 40% interest in the family home, the trial court

should have discounted the pre-marital equity that had accrued in the home before

awarding Ms. Johnson her 40% interest in it. We now turn to that argument.

C.

Mr. Macklin’s final challenge is to the Superior Court’s calculation of Ms.

Johnson’s equitable interest in the house. To make that calculation, the court took

the home’s market value at the time of divorce ($784,000) and deducted Mr.

Macklin’s mortgage balance on the property ($227,000), as well as the estimated 29

sales costs (6% of $784,000, or $47,040), arriving at a “cash-out” value of

$509,960. It then awarded Ms. Johnson 40% of this figure, or $203,984.

Mr. Macklin contends the court inflated Ms. Johnson’s equity in the property

by failing to deduct the pre-marital equity he had in the home when the parties

married in 2005. In his telling, all of the home’s appreciation—i.e., the $559,000

difference between the 2002 purchase price ($225,000) and the market value at the

time of divorce ($784,000)—accrued before the parties married. In fact, he claims

the home was “far more valuable” when the parties married in 2005 than when

they finalized their divorce in 2019. Ms. Johnson counters that Mr. Macklin

forfeited this argument by failing to raise it at trial, and she further argues that he

failed to offer evidence sufficient to support his view that the home had

appreciated to any degree between the purchase date and the date the parties

married. We agree with Ms. Johnson on both points.

We acknowledge, as Mr. Macklin asserts, that a non-titled spouse’s

equitable interest in the other’s property should be measured by the “reasonable

value” of the spouse’s contributions “during the marriage.” Yeldell, 551 A.2d at

835. However, Mr. Macklin did not complain in the trial court—through a motion

for reconsideration or otherwise—that its calculation failed to account for the pre- 30

marital equity he had accrued in his home, and his “failure to raise this point at

trial” generally “prevents its consideration on appeal.” Gavin v. Wash. Post Emps.

Fed. Credit Union, 397 A.2d 968, 973 n.9 (D.C. 1979).

But even if Mr. Macklin had timely raised the issue, the trial court

effectively addressed it when it concluded that he had no pre-marital equity in the

home because he had not paid down his mortgage balance (it exceeded the home’s

purchase price) and because essentially all of the home’s appreciation occurred

during the marriage, not beforehand, as Mr. Macklin now contends. The only

concrete evidence of the home’s appreciation offered at trial came from Ms.

Johnson’s expert, who indicated that virtually all appreciation accrued during the

marriage. Mr. Macklin presented no expert evidence to the contrary, and the court

did not err in relying on Ms. Johnson’s expert. 8 Mr. Macklin similarly offered no

evidence at trial (nor does he argue here) that any equity accrued to him before the

8 For the first time on appeal, Mr. Macklin argues that one of Ms. Johnson’s expert’s own demonstrative exhibits, displaying economic trends in the D.C. housing market, supports his claim that much of the home’s appreciation accrued before the marriage. That exhibit was never entered into evidence, however, so it is arguably not before us. See Brooks v. Rosebar, 210 A.3d 747, 750 (D.C. 2019). And even assuming otherwise, the data Mr. Macklin describes speaks “generally to the D.C. [housing] market”; it does not purport to reflect trends in Mr. Macklin’s neighborhood, much less the value of the family home over time. Critically, Mr. Macklin did not once suggest at trial that the data supported the inference he now presses. 31

marriage through a down payment or payment of the mortgage’s principal; given

that Mr. Macklin’s mortgage balance of $227,000 at the time of divorce was

greater than the purchase price of $225,000, the trial court had little reason to

suspect he had accrued any pre-marital equity through such payments. We thus

cannot fault the Superior Court for declining to deduct pre-marital equity that it

had good reason to think did not exist.

There remains a question lurking in the record as to why the trial court

deducted Mr. Macklin’s mortgage debt, as opposed to the home’s value at the time

the parties married, before apportioning Ms. Johnson her percentage of its value. 9

But the issue is of no moment in this case because the two numbers are nearly

identical and no party complains about the minor discrepancy that resulted from

deducting the mortgage balance rather than the home’s pre-marital value ($227,000

and $225,000, respectively). In fact, the trial court’s decision to deduct the greater

figure worked to Mr. Macklin’s advantage by awarding Ms. Johnson $800 less

than the amount to which she otherwise would have been entitled (40% of the

9 To illustrate the pitfalls of simply deducting the mortgage debt, consider a scenario where Mr. Macklin had no mortgage debt coming into the marriage. If that were the case, and the trial court had deducted nothing from the home’s value at the time of divorce (because it was unencumbered by debt), Mr. Macklin could rightly complain that the trial court failed to deduct the $225,000 of pre-marital equity he had in the home. 32

$2,000 difference). And, at bottom, the trial court had a firm basis for concluding

that Mr. Macklin had no pre-marital equity in the home, or—put slightly

differently—that the home’s value at the time of their marriage was entirely offset

by the mortgage debt he separately carried on the property.

We add one final caveat to the above analysis. Contrary to how we have

described its findings above, the trial court seemed to acknowledge that the house

had appreciated by some amount before the parties’ marriage, owing to Mr.

Macklin’s substantial renovation work on the home. But given Mr. Macklin’s

failure to quantify the monetary value of those renovations, we find the trial court’s

crude accounting for those improvements to be quite reasonable: It reduced Ms.

Johnson’s share of equity in the home from 50% to 40%—reducing her equitable

interest by more than $50,000—in large part to account for Mr. Macklin’s pre-

marital renovation work. Supra note 4.

IV.

The judgment of the Superior Court is affirmed.

So ordered. 34

The statutory scheme is very different with respect to “all other property” —

property acquired during the marriage regardless of title (excepting separate

property acquired during the marriage by “gift, bequest, devise or descent”). With

respect to what is usually referred to as “marital property” the trial court has broad

discretion to “value and distribute” the property (and debt) “in a manner that is

equitable, just, and reasonable, after considering all relevant factors . . . .” D.C.

Code § 16-910(b). The statute contains a non-exhaustive list of twelve factors,

including the relative financial condition and prospects of the parties. The statute

specifically lists as factors “each party’s contribution as a homemaker or otherwise

to the family unit” and “each party’s contribution to the acquisition, preservation,

appreciation, dissipation, or depreciation in value of the assets which are subject to

distribution . . . .” D.C. Code §16-910(b)(7) & (10).

This appeal concerns separate real property, a house on Quincy Street, N.W.

appellant acquired three years prior to the marriage. After he bought it, appellant

made substantial renovations to the property to convert it from a multi-unit

building to a single family dwelling. The family lived in the house.

Although the trial court formally recognized that the property belonged to

appellant, it imposed an equitable lien on the property amounting to 40% of his 35

equity in the house, encumbering almost half the value of appellant’s interest in his

separate property. The trial court did so after taking into account the two factors

listed above which the statute provides for consideration in the distribution of

marital property: contribution as a homemaker to the family unit and contribution

to the dissipation of the property (in this case, appellee’s neglect of the house after

appellant had moved out). In effectively treating appellant’s separate property as if

it were marital property, the trial court committed legal error. 4

The majority attempts to get around this statutory obstacle by citing cases in

which this court has recognized the trial court’s “general equity power” to

encumber separate property with a lien while preserving ownership and possession

in the owner spouse. However, the instances where this court has mentioned the

4 The majority comments that the statutory mandate was preserved because title to the property remained with appellant and appellee “does not have any say in what [appellant] does with the property or in how he disposes of it (aside from enforcing her lien).” Ante at 17. The trial court is prohibited from granting an ownership interest as is made clear by the statute and our precedent. See Yeldell v. Yeldell, 551 A.2d 832, 836-37 (D.C. 1988). That the trial court adhered to that injunction by preserving appellant’s legal title does not mean what the trial court did does not have real world consequences that affect the owner’s use and enjoyment of the property. Imposition of an equitable lien is not simply recognition of a debt. The lien is itself an enforceable property right, recordable in public land records. It could stand in the way of the owner’s freedom to alter the property or refinance the mortgage. Depending on what other encumbrances exist or contractual undertakings that relied on appellant’s ownership of the property, the lien could accelerate contractual obligations or constitute an act of default. 36

trial court’s authority to impose an equitable lien on separate property — mostly

in dicta — hew closely to the statutory scheme by focusing on the non-owning

spouse’s contributions to the property itself. That was not the case here, where the

trial court and the majority are focused on the appellee’s homemaker services that

contributed to the family.

The cases cited by the majority do not sustain the broad proposition relied

upon by the trial court in this case, that one spouse’s contributions in the form of

homemaker services during the marriage generally can form the basis for an

equitable lien on separate property. As the majority recognizes, that issue has not

been decided in any of this court’s cases that it cites: Brice, Yeldell, Bansda, Ealey.

Those cases dealt with monetary payments made by one spouse that directly

enhanced the property or preserved ownership of the separate property itself.

There is no precedent for the majority’s opinion because this case departs from our

prior decisions concerning equitable liens on separate property in that the

contributions were not monetary and were not directed to the acquisition or

enhancement of the separate property itself. 5

5 As the trial court recognized, but the majority appears to overlook, Darling v. Darling, 444 A.2d 20 (D.C. 1982), was a very different case. There the separate property at issue was a business owned by the husband before the 37

The reason given by the majority for burdening appellant’s separate property

with an equitable lien unwisely breaks new ground untethered to the statutory

scheme that makes a clear distinction between separate and marital property.

Appellee’s contribution as a homemaker was not directed to the separate property

itself — real property in the form of a house — but to managing the household.

Contributing to the acquisition and improvement of the Quincy Street house, a

physical structure, and contributing by caring for children and managing the home

are not the same thing. Yet the majority treats them as if they were.

The majority deals primarily with justifying the lien based on the in-kind

contribution of homemaking services but does not come to grips with the critical

fact that the appellee’s contribution as homemaker was not “a substantial

contribution to the acquisition (or increase in value) of the property . . . .” Ealey v.

marriage. The wife made significant non-monetary contributions by improving and managing the business during the marriage and the question presented was whether those contributions transformed the business from separate property to marital property subject to equitable distribution under the statute. Id. at 24. The court held they did. Id. The case did not involve imposition of an equitable lien on separate property. What is instructive is that, as in the one case cited — Yeldell — where this court upheld imposition of an equitable lien, the court in Darling was also focused on the non-owning spouse’s contributions that preserved or enhanced the value of the separate property itself, in that case, a business. There is nothing comparable here. 38

Ealey, 596 A.2d 43, 48 (D.C. 1991) (emphasis added); see Yeldell v. Yeldell, 551

A.2d 832, 835 (D.C. 1988) (while the trial court could not award husband half of

legal title in house that wife owned separately prior to marriage, an equitable lien

could be imposed in recognition of “the reasonable value, as of the date of the

divorce, of his [monetary] contributions to the property during the marriage”

(emphasis added)). In this case, there is no comparable direct contribution by

appellee — monetary or in kind — to the house that was appellant’s separate

property. The majority conflates contributions to “the home” with contributions to

the Quincy Street house. A comment in the majority opinion illustrates the point.

It argues that “a homemaker’s contributions to the home are no less worthy of

recognition than a carpenter’s.” Ante at 25. But the issue in this case is not

whether a homemaker’s contributions are valuable and should be recognized, but

how. The statute recognizes homemaker services by providing such contributions

“to the family unit” are to be taken into account in distributing marital property.

D.C. Code § 16-910(b)(7). The critical distinction between a spouse’s contribution

as a carpenter and as homemaker is that the former enhances the value of the

separate property itself whereas homemaking creates value for “the family unit”

that the statute designates for recognition in an equitable distribution of marital 39

property. The separate property is a house on Quincy Street, a piece of real estate,

not the family. 6

The majority attempts to close this gap by a circuitous route, adopting the

trial court’s statement that the appellee’s “work in caring for the home and

children” enabled appellant “to earn money to pay the mortgage and otherwise

maintain his separate property.” Without further analysis, this generic statement is

economically incoherent; without findings based on evidence it cannot be

sustained. Moreover, the statement implies that appellant enriched himself

unfairly from appellee’s labor at home because it enabled him to pay the house

mortgage from his earnings and keep the separate property for himself. But that is

not so. Both parties benefitted. Appellant made his Quincy Street house available

for the family’s use. By paying the mortgage on the property appellant saved the

family’s finances the cost of paying rent — not unlike how the appellee’s

contributions as a homemaker saved child care costs. The money that appellant

earned also went to support the family’s needs for food, clothing, medical and

other expenses. Moreover, the premise that appellee’s work at home indirectly

6 To the extent the trial court made any finding with respect to appellee’s contributions to the house’s value, it was to note her neglect of the property once appellant moved out — to the point of reducing her equitable interest by 20%, from half to 40%. 40

helped to pay the mortgage collapses if one imagines a slightly different, but not

uncommon, scenario. Appellant could have kept his house on Quincy Street as an

investment property and rented it out, using the rent collected to pay for the

mortgage, taxes, etc. In short, without careful consideration of the parties’

contributions and underlying finances in context there is no logic or evidentiary

basis to conclude, as the trial court and the majority do, that appellee’s

contributions as a homemaker made servicing the mortgage on the Quincy Street

property possible and did so to such an extent that she was entitled to 40% of

appellant’s equity. The relevant question is whether a spouse contributed to the

acquisition or enhancement of the separate property and in what amount. 7

There was no such careful parsing in this case. Rather, the essence of the

court’s reasoning for imposing the lien was generic, that appellee was “an equal

partner in the parties’ marriage” and “the efforts of both spouses were necessary to

7 The majority expresses dismay that “had roles been reversed,” with appellant a stay-at-home Dad, and appellee working outside the home and paying the mortgage, she would be entitled to an equitable lien on the house. That result is dictated by Yeldell. In that case the husband paid the mortgage on a house the wife acquired prior to the marriage and owned as her separate property. 551 A.2d at 833. The wife also worked outside the home and contributed to improvements to the house and paid utility and other household expenses. Id. We upheld the grant of an equitable lien to the husband based on a calculation of the mortgage payments he made. Id. 41

the family’s functioning over the years.” That might well be true but largely

beside the point because the issue was not contribution to the family’s functioning

during the marriage — that is compensable in the distribution of marital property

— but appellee’s contribution to the separate property. The court began its

assessment of the lien in favor of appellee at half the value of appellant’s equity in

the house, and justified its decision to award 40% to appellee in light of appellant’s

investment in improving the property and appellee’s dissipation of its value due to

her neglect of the house during the seven months that she lived there alone with the

children. This is classic reasoning for distribution of marital property, starting at a

50-50 division, and making adjustments from that base. Indeed, the trial court

used virtually the same language in imposing the lien on the separate property as it

did in distributing the marital property. Compare Court Order at 24-25 (imposing

equitable lien: appellee “was an equal partner in the parties’ marriage . . . the

efforts of both spouses were necessary to the family’s functioning over the years”)

and 31 (distributing marital property: appellee “was an equal partner to her

husband throughout the parties’ marriage. . . . Court cannot find that these

[homemaker] contributions should be valued differently”).

It is telling that in denying appellee’s request for alimony, the trial court’s

order noted that it had awarded “over $250,000 in marital assets” and relied on 42

Sudderth v. Sudderth, 984 A.2d 1262, 1266 (D.C. 2009), for the proposition that “it

is within the trial court’s discretion to award marital property in lieu of alimony.”

But of the $254,424 awarded to appellee, 80% ($203,984) were not marital

property but attributable to the lien on appellant’s separate property. And Sudderth

was inapposite because it dealt with marital, not separate, property. See id. The

reasoning and the language of the trial court’s order show that the two categories

of property the statute takes pains to distinguish were substantially

indistinguishable in the trial court’s mind.

The majority opinion similarly functionally erases the distinction between

marital property and separate property when it declares, ante at 21, “[t]here is no

good reason to treat one spouse’s homemaking contributions as having a beneficial

impact on marital property housing a family, but not on separate property doing the

same.” The unambiguous statutory scheme that draws a bright line between

separate and marital property and expressly provides that homemaker contributions

are to be taken into account in distributing marital property is a very good reason to

treat them differently. 8 The majority’s observation that “it is not anomalous for a

8 The trial court’s reasoning grounded on the parties being equal partners in a joint enterprise of marriage sketches the outline of what could be an agreement between the parties — the antenuptial or postnuptial agreement contemplated in 43

couple’s assets to be tied up in home equity that accrues over the course of their

marriage, despite the home being titled in only one spouse,” ante at n.6, also belies

the statutory line between separate and marital property. The statute expressly

provides that increase in the value of separate property remains separate. D.C.

Code § 16-910(a) (separate property includes “any increase thereof[] or property

acquired in exchange therefor”). Thus, the increase in the equity of the property

during the marriage remained appellant’s separate property. Nor is it a matter of

title, as marital property remains marital “regardless of whether title is held

individually or by the parties in a form of joint tenancy or tenancy by the

entireties. . . .” D.C. Code § 16-910(b).

The majority opinion has opened the door to the imposition of liens on

separate property based on homemaker contributions without an adequate limiting

principle or guidance to the trial court. It says there is no reason to be concerned

because to give rise to an equitable interest, the homemaker’s contribution must be

“substantial.” But what does that mean? Does “substantial” refer to whether the

homemaker services are full- or part-time? The length of time during which they

the statute, see supra note 2. But the existence of such an agreement was not argued and the trial court made no such finding. 44

are provided? Their quality? Whether the homemaking spouse had more

remunerative options available? And once it is determined that a spouse made a

“substantial” contribution to the family as a homemaker, does it now automatically

follow that in the District of Columbia an equitable interest is created in the other

spouse’s separate property? What guides that determination?

It is no answer to say that homemaker services are “valuable.” Ante at 25.

Even assuming homemaker services can form the basis for an equitable lien on

separate property, that generalization does not “determine the reasonable value, as

of the date of the divorce, of [the non-owner spouse’s] contributions to the

property during the marriage.” Yeldell, 551 A.2d at 835. Valuations is necessary

to determine whether the spouse should be granted an equitable interest in the

spouse’s separate property and, if so, in what amount. See Ealey, 596 A.2d at 48-

50 (assuming, without deciding, that homemaker services can be considered in

imposing an equitable lien on separate real property and noting that “the trial judge

should generally place a monetary value on the non-monetary contributions,

particularly when requested to do so and a formula is proposed”). 9

9 Appellee presented evidence that her work at home had a value of $47,800 in after-tax income, but the trial court did not accept her “precise quantification.” Instead, the court found generally that appellee’s work at home saved the family “a 45

There is an aphorism that bad facts make bad law. This case presented with

bad facts and the trial court was faced with a tough situation. One unalterable fact

was that there was not much in the way of marital property for distribution to the

parties. 10 Moreover, the trial court determined that appellee had not made out a

case for alimony. The appellee’s income was limited: child support from

appellant, her relatively small earnings as an artist and public assistance. It seems

apparent that the trial court attempted to remedy the appellee’s straitened financial

resources by reaching for appellant’s Quincy Street property because it was the

only asset with significant value. That would have been authorized if the house

had been marital property; the trial court enjoys broad discretion in distributing

marital property taking into account a number of factors. Here, the house was not

available for distribution. An equitable lien on separate property is not a

convenient all-purpose judicial tool on hand to effect a work-around the statutory

scheme enacted by the legislature that draws a bright line between separate and

significant amount” in child care costs and that this effort is “no less important than the other parent’s income-producing work.” 10 Only 20% of the amount awarded to appellee was attributable to marital property. The trial court awarded appellee half the value ($50,440) of two properties appellant purchased during the marriage that were marital property. 46

marital property and carefully delineates the court’s authority in dealing with each.

The trial court’s scope of action in the exercise of its “general equity power” is not

unbounded and must be respectful of the applicable statute and our cases. In my

view, the trial court’s order imposing a lien on the house owned by appellant

exceeded both.

The majority makes a policy determination that is for the legislature, not the

courts, particularly as it pertains to an area of law in which the legislature has

spoken by establishing a detailed scheme for how separately owned assets and

marital property are to be assigned and distributed at the end of a marriage. If the

court is to take the lead and for the first time hold that homemaker services can be

the basis for an equitable interest in separate property it should provide clear rules

for how it should be done, specifically, that homemaker services must be shown to

have contributed to the acquisition or improvement of the separate property and

given a reasonable valuation. Neither was done in this case with any specificity or

evidentiary basis. At a minimum the case should be remanded for further

proceedings. “Given this uncertain record, the trial court on remand should

explain fully how it calculates the value of the [appellee’s] contributions. If the

court believes that it does not have enough information on which to base a 47

decision, it may in its discretion receive additional testimony.” Yeldell, 551 A.2d

at 836.