Jordan v. Jordan

SULLIVAN, Associate Judge,

concurring in part and dissenting in part:

I concur in that part of the court’s opinion which holds that the trial court did not err in awarding to appellee a one-half interest in the marital home and a one-half interest in certificates of stock in United Telecommunications, Inc., Washington Gas Light Co., Potomac Electric Power Co., Sears, Roebuck and Co., Colgate-Palmolive Co., First Western Financial Corp., and He-chinger Co. Appellant testified that he purchased stock in those companies during the course of the parties’ marriage. Accordingly, the court properly distributed that stock as marital property pursuant to D.C.Code § 16-910(b) (1989). I respectfully dissent, however, from that part of the court’s opinion which holds that the trial court’s award to appellee of a one-half interest in stock in Occidental Petroleum Corporation (Occidental) and Greyhound Lines, Inc. (Greyhound) was not clearly erroneous. Because I am of the opinion that the trial court’s findings supporting its award of Occidental and Greyhound stock are not sufficient to allow meaningful appellate review, I would remand the case to the trial court with instructions to make express findings of fact and conclusions of law with respect to its award of stock in those companies. See Pimble v. Pimble, 521 A.2d 1173, 1175 (D.C.1987).

I.

Appellant’s uncontroverted testimony at trial was that at the time of his marriage to appellee, he owned 200 shares of Occidental stock and 100 shares of Greyhound stock and, that at the time of the separation of the parties, he owned 572 shares of Occidental stock and 300 shares of Greyhound stock. At the conclusion of the trial, the court ruled orally that “the bulk of the stock [was] acquired during the marriage,” (emphasis added), thereby recognizing explicitly that evidence adduced at trial proved that some shares of the Occidental and Greyhound stock had been acquired prior to the marriage. Therein lies the problem, in view of the failure of the court to otherwise address that evidence in its findings of fact and conclusions of law.

In its written Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce, the court’s only finding of fact with respect to any stock was as follows:

7. Mrs. Jordan did not participate with Mr. Jordan in making investment decisions in the stock market. Although Mr. Jordan wanted her to research stocks and help choose those stocks worthy of investment, she did not find it interesting, and left it all to Mr. Jordan who did find it interesting.

That written finding of fact was followed by the court’s written conclusion of law which contradicts the oral ruling previously made1. The written ruling states:

4. There is no evidence to suggest that the stock may have been acquired before *1241the marriage during the first ten (10) years of Mr. Jordan’s employment life. To the contrary, it appears that the stocks were acquired during the marriage.... Therefore, the stocks to which Mr. Jordan testified [presumably Occidental and Greyhound] are also marital property. (Emphasis added).

At no point in its written findings did the court either refer to its prior oral findings of fact or incorporate the oral findings into the written findings and judgment.

Although there was no record evidence establishing that immediately before the divorce appellant still owned any of the Occidental and Greyhound stock purchased before the marriage,2 I disagree with my colleagues’ decision that the trial court did not clearly err in finding that all stocks appellant owned at the end of the marriage were marital property. It cannot be disputed that appellant offered uncontroverted evidence during the trial that he was the sole owner of a specified number of shares of stock in both Occidental and Greyhound prior to the marriage and at the time of the divorce. Indeed, the trial court, in making its oral finding that the bulk of the stock was acquired during the marriage, recognized explicitly that evidence had been adduced to prove that some of the shares of Occidental and Greyhound stock had been acquired prior to the marriage. Thus, it was incumbent upon the court to weigh appellant’s evidence and to clearly resolve the issue of whether appellant had sustained his burden of proof that the Occidental and Greyhound stock he owned at the time of the divorce, or some shares of that stock, was the same stock that he owned prior to the marriage and, accordingly, was not marital property. It may well be that after appropriate consideration of all of the evidence, including appellant’s uncontro-verted testimony, a trial court could properly conclude that appellant had failed to sustain his burden of proof on this issue. For the trial court to distribute the shares of stock in Occidental and Greyhound, however, without having considered and weighed, with explication, relevant testimony of appellant, deprives us of an opportunity to conduct a meaningful review. Accordingly, I would remand this case for appropriate findings of fact and conclusions of law on this issue in accordance with Super.Ct.Dom.Rel.R. 52. See Pimble v. Pimble, supra, 521 A.2d at 1175; United States v. Hollis, supra, 424 F.2d at 192.

. Where, as here, the trial court makes conflicting findings, an appellate court will not choose those findings it deems preferable, but must remand to the trial court to clarify its findings. See United States v. Hollis, 424 F.2d 188, 192 (4th Cir.1970). Thus, I disagree with the majority’s decision to review the written findings only. See ante at 1239 n. 4.

. Nonetheless, uncontroverted, competent, and credible oral testimony should enable a party to sustain a burden of proof. See Dmitrieff v. Campbell, 234 A.2d 808, 810 (D.C.1967) (citing Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 218, 51 S.Ct. 453, 456, 75 L.Ed. 983 (1931)). In this regard, the trial court never found that appellant was not a credible witness.