Dickason v. Dickason , 263 A.2d 640 ( 1970 )

KERN, Associate Judge.

This is an appeal from a judgment of absolute divorce granted appellee-wife upon the uncontested ground of voluntary separation. Appellant argues that he was denied opportunity at trial to present evidence that three pieces of real property recorded in the individual names of the parties were in fact jointly owned by them.

Appellee testified at trial that she owned two of the properties, and that her husband owned the third; and that they had purchased and held all three pieces of realty as tenants by the entirety during their marriage until 1962, when they reconveyed and recorded the realty as individually owned.¹

At the conclusion of appellee’s case appellant’s attorney stated (R. at 37):

Our position, Your Honor, is that they do own these three properties jointly and as tenants by the entirety, and that there were agreements. And our side will bring that forth as to what the agreements were * * *. (Emphasis added.)

Appellant’s attorney made a further proffer of testimony by appellant that appellee and he had agreed to cancel the deeds conveying the jointly-held property to themselves as individuals before such deeds could be recorded and that appellee, without appellant’s knowledge, had not abided by such agreement and proceeded to record the deeds.² (R. at 46-47).

The trial court at this point took the position that it was not interested in hearing any evidence on the issue of ownership of the property beyond what appeared as a matter of record title.³ The reason for the court’s action is unclear. The pre-trial order framing the several issues for determination stated among others:

What are the respective interests of the parties in the jointly owned items of real property [the three parcels] ? The issue has been certified to this court for enclosure in this case by an order of the United States District Court * * *.⁴

(Emphasis added.)

The trial court recognized the pendency of this issue when it stated at the trial’s outset that “the action for divorce itself is uncontested * * * and * * * the contest concerns itself with the property of the parties and the disposition thereof.” R. at 3 (emphasis added). However, the trial court explicitly did not make any findings with respect to actual ownership, but merely confined itself to record title despite appellant’s contention and proffer.

There is, of course, no question that the trial court had authority to hear and determine the issue appellant raised. D.C.Code 1967, § 11-1141 (a) (9) provides that the Domestic Relations Branch has exclusive jurisdiction of

determinations and adjudications of property rights, both real and personal, in any [divorce action], irrespective of any jurisdictional limitation imposed on the Court of General Sessions.

We have held that this Section permits the court hearing a divorce action “to adjudicate the respective rights of the parties in any or all property to which one or the other makes claim.” Posnick v. Posnick, D.C.Mun.App., 160 A.2d 804, 807 (1960) (emphasis added). It was appropriate for the trial court, which was hearing the divorce proceedings, to resolve the issue between the spouses of ownership of property, particularly when the District Court had certified that issue to the trial court.

We do not deny the possibility that appellant’s proof would have failed to establish that the properties were jointly owned as a result of their alleged agreement to cancel the deeds. In addition, since the Statute of Frauds, D.C.Code 1967, § 28-3502 appears to apply to an agreement to rescind transfer of real property as well as an agreement to transfer, the entry of summary judgment for appellee might have been justified if appellant had relied entirely on an oral agreement. Nevertheless, appellant should have had an opportunity at least to present his evidence. We cannot speculate on how the court might have resolved the issue if it had undertaken to do so. See Solway Decorating Co. v. Merando, Inc., D.C.App., 240 A.2d 361, 363 (1968) (Hood, C. J., dissenting), rev’d in part, U.S.App.D.C. (No. 21,869, decided Aug. 9, 1968) (unpublished).

We reverse the judgment and remand this case for a further hearing by the trial court at which appellant will have opportunity to present evidence on the question of the actual title to the three properties in question. If it should find any such properties to be held by the parties jointly, it should make appropriate disposition under D.C.Code 1967, § 16-910.

Reversed and remanded for further proceedings in accordance with this opinion.

1 . Counsel represented to the court that the deeds were executed in June, 1962, but were not recorded until October, 1962.

2 .While appellant’s proffer may have been inartful it was sufficient to inform the trial court, and a reviewing tribunal, of the intended proof and its relevance to the issue to be decided. See, e. g., Marrone v. United States, 355 F.2d 238, 240 (2d Cir. 1966). The dissent concludes that no such agreement existed based upon statements made by appellee and her attorney. However, the record shows that when appellee was asked on cross-examination whether she had “any agreement whatsoever with your husband, either oral or written, concerning these properties”, she answered, “I don’t remember”. When the trial court inquired of her counsel if he had “an agreement of the parties”, because “[t]liis ’is an * * * equity court [and] [w]e want justice to be done in the case”, counsel did not deny there was an agreement but referred only to the deeds of record.

3 . The following colloquy occurred (R. at 48-49) (emphasis added):

THE COURT: This is what I am concerned with — what is of record. It is presently in the name of Mr. Dicka-son, as of record. The property on 19th Street and the property on S Street are in the name of Mrs. Dicka-son, as of record.

MR. MILLER: Yes, sir.-

THE COURT: They are in the sole names of each individual and not held jointly, of record. Is that correct?

MR. MILLER: Yes, sir.

THE COURT: And I will not pursue the issue any further, sir. * * *

4 . The District Court order is not a part of the record before us.