Crane v. Crane

WAGNER, Associate Judge,

concurring in part and dissenting in part:

I join in the decision of the court dismissing appellant’s appeal from the trial court’s order of December 3, 1990, for lack of jurisdiction. To the extent that appellant challenges in this appeal the underlying pendente lite support award entered by the trial court on November 5, 1986, I also agree with the majority that review by this court is barred by issue preclusion principles.1 However, appellant also argues that any calculation of sums he may owe appel-lee under the parties’ Separation Agreement (“the Agreement”)2 must include as a credit sums accrued or paid under the pen-dente lite order. Appellant contends that the judgment of divorce, which this court affirmed,3 includes language recognizing his entitlement to such credits against the unpaid quarterly installments due under the Agreement.4 In my opinion, these issues concerning the validity of the court’s finding of arrearages due under the Agreement in light of its terms and the provisions of the divorce decree have not been litigated previously and could not have been raised earlier. The trial court did not enter an order calculating the amount due appellee under the Agreement until February 25, 1991, see ante at 11 n. 14, long after disposition of the prior appeal. Therefore, I cannot agree with the majority that res judicata principles preclude appellant from seeking review of the trial court’s resolution of enforcement issues under the prior judgment and the parties’ Agreement. See Rhema Christian Center v. District of Columbia Board of Zoning Adjustment, 515 A.2d 189, 190-93 (D.C.1986).

However, I concur in the dismissal of the issue relating to appellant’s entitlement to credits by the trial court because: (1) the order of December 3, 1990, from which the present appeal is taken, does not address or decide what amounts appellant owes appel-lee under the Agreement or whether appellant is entitled to credits for sums accrued or paid under the pendente lite order; (2) appellant did not note an appeal from the order of the trial court entered on February 25, 1991, which set the amount appel*943lant owes appellee and must pay her to purge himself of contempt, see D.C.App.R. 4(a); and (3) the record is inadequate to resolve the issue even if it were properly before us, and it is not. See Cobb v. Standard Drug Co., 453 A.2d 110, 112 (D.C.1982).

. See Kleinbart v. United States, 604 A.2d 861, 865 (D.C.1992); see also Lehrman v. Gulf Oil Corp., 500 F.2d 659, 662-63 (5th Cir.1974).

. The Agreement provides that "[t]he husband and wife each waive any and all rights he or she might now have or hereafter have to separate support and maintenance, spousal support, both periodic or lump sum, or alimony, or other applicable right to support." When a separation agreement, which is fair and reasonable, is intended by the parties as a final disposition of property rights or adult support obligations, the parties will be bound by it. Swift v. Swift, 566 A.2d 1045, 1046 (D.C.1989).

. See Crane v. Crane, Nos. 87-217 & 87-1403 (D.C. October 16, 1989).

. There appears in the divorce decree the following statement upon which appellant relies:

Credits, if any, for pendente lite payments or attachments cannot be computed on the present record.

Appellant argues that affirmance of the final judgment left intact all provisions of the divorce judgment, including the foregoing language. Appellee argued in her brief in the prior case that the appeal from the pendente lite order should be dismissed because appellant did not argue it in his brief. In his reply brief in the earlier case, appellant maintained that the divorce judgment rendered the alimony issue moot because the court offset his compelled payments of alimony against the sums due under the Agreement.