Tarik A. Abulqasim
I. Statement of Facts
On July 14, 1993, Mahmoud and Abulqasim were married in Khartoum, Sudan, under Sharia law. Approximately one month later, they relocated to the United States, married each other again in the District of Columbia, and moved into a house owned by Abulqasim’s brother located at 5160 H Street, S.E. Over the next eleven years, Mahmoud and Abulqasim had four children together and raised them at the H Street house. They purchased the house in May 1999.
In 2004, Abulqasim told Mahmoud that he would be moving their family to the Sudan to attain greater financial stability by starting a business there. Although Mahmoud thought life in D.C. was “hard” and too expensive, she did not initially agree with Abulqasim’s decision because she believed the Sudanese economy and schooling system were “different” than in the United States; however, eventually Mahmoud consented to moving the family to the Sudan because she thought it was her duty to follow her husband.
After Abulqasim returned to the District of Columbia, the parties spoke twice on the phone during the first week and had “normal” conversations; the following week, however, Mahmoud tried to contact Abulqasim approximately “fifteen times” but did not receive a response. Mahmoud was concerned about Abulqasim and asked her mother, who was living in D.C., to contact him on her behalf. Mahmoud’s mother informed her that she had recently seen Abulqasim at the Sudanese Embassy in D.C., and without his knowledge, had observed him inquiring with a consular officer for information on how to divorce his wife. Mahmoud also asked one of her sisters, Hala, if she was aware of any information regarding Abulqasim. Hala directed Mahmoud to contact their other sister, Hagir,
On January 18, 2005, Mahmoud returned to the District of Columbia with her children, having borrowed $6000 from a friend to pay for their airline tickets. The next day, Mahmoud telephoned Abulqasim, who told her that he did “not have any interest [in] talking to [her],” and that she could not use their children as an “excuse” to pursue him. Mahmoud and the children moved back into the H Street house; about a week later, when Abulqasim learned of this, he arranged to have all of the house’s utilities turned off. Mahmoud and her children stayed with her mother for three to four weeks until Mahmoud was able to transfer the H Street house’s utilities account to her own name. Mah-moud attempted to use her bank card to access her joint account with Abulqasim, but found it had “a zero balance,” even though she thought there had been “at least $40-$50,000” in the account.
On January 14, 2005, Abulqasim had begun transferring money out of the parties’ joint investment and checking accounts into a new checking account in Abulqasim’s name alone. In all, Abulqas-im deposited and transferred more than $166,000 into his personal Citibank account in 2005,
In January of 2005, the same month that Mahmoud and the children returned to D.C., Abulqasim traveled to the Sudan to try to obtain a divorce there from Mah-moud. On January 29, 2005, Abulqasim acquired a document, written in Arabic and issued by a “Khartoum Sharia court,” that purported to grant him a divorce from Mahmoud.
On June 2, 2005, Abulqasim filed a complaint in Superior Court seeking recognition of the Sharia Sudanese divorce or, in the alternative, an order from Superior Court granting him an absolute divorce from Mahmoud, sole custody of the parties’ minor children, and distribution of their marital property. On June 30, 2005, Mahmoud filed a response to the complaint, and a counterclaim for an absolute divorce from Abulqasim, sole custody of the children, child support, and an equitable distribution of property. Mahmoud filed an amended answer and counterclaim on July 20, 2005, and Abulqasim filed a response on July 26, 2005.
At the close of a three-day trial, the court concluded “in gross that ... Mah-moud’s testimony is credible and I credit [it] and ... Abul[ ][q]asim’s testimony is not credible and I d[id] not credit it on virtually every point of dispute, certainly on all the essential points of dispute.” On January 31, 2008, the trial court denied recognition of the Sudanese divorce on due process grounds, see note 6, supra, granted the parties an absolute divorce, awarded sole custody of the children to Mah-moud with visitation rights to Abulqasim, and ordered child support payments by Abulqasim in the amount of $367 per month beginning on October 1, 2006, and distribution of property to Mahmoud.
A. Subject Matter Jurisdiction.
Abulqasim contends that the trial court lacked subject matter jurisdiction to decide the parties’ divorce action because neither party had been a bona fide resident of D.C. for at least six months prior to the filing of the complaint for divorce, as required by D.C.Code § 16-902 (2001). Appellant argues that he and Mahmoud lost their status as D.C. domiciliaries when they moved to the Sudan in September of 2004 with the intent to remain there indefinitely, and that even if Mahmoud’s return to the District of Columbia on January 18, 2005, reestablished her residence here, it was not a full six months before he filed the complaint on June 2nd. Mahmoud contends that both she and Abulqasim remained legally domiciled in D.C. throughout their marriage and separation.
Although the issue of subject matter jurisdiction is a question of law we review de novo, see American Univ. in Dubai v. District of Columbia Educ. Licensure Comm’n,
Each of the parties’ complaints for divorce asserted that Mahmoud had been a resident of the District of Columbia for more than six months preceding the filing of the action. Even though on appeal Abulqasim takes the opposite stance than he did at trial when he invoked the Superior Court’s jurisdiction, ‘“[p]arties cannot waive subject matter jurisdiction by their conduct or confer it ... by consent, and the absence of such jurisdiction can be raised at any time.’ ” Chase v. Pub. Defender Serv.,
The Superior Court’s jurisdiction to grant a divorce is rooted in one of the parties’ “bona fide residence” in the District of Columbia. D.C.Code § 16-902 (2001) (“No action for divorce or legal separation shall be maintainable unless one of the parties to the marriage has been a bona fide resident of the District of Columbia for at least six months preceding the commencement of the action.”); see DeGroot v. DeGroot,
The trial court found that “[e]xcept for occasional trips to the Sudan, ... Mah-moud has lived in the District of Columbia in the H Street house without interruption since the start of her marriage in 1993. Consequently, ... Mahmoud has been a bona fide resident of the District of Columbia for far longer than six months, and [the parties] are permitted to seek a divorce ...” On appeal, Abulqasim challenges the court’s finding of Mahmoud’s D.C. residency as clearly erroneous, pointing to a statement earlier in the court’s Order that “in mid-September 2004, [the parties] and their four children left for Khartoum, Sudan, with the intent to remain there permanently” (emphasis added). Upon an independent review of the entire record, we conclude that these two statements, although facially incongruent, are not substantively inconsistent when read in context. The statement on which appellant relies was not within the Order’s section containing the court’s conclusions of law, but was part of the trial court’s recitation of the parties’ account of the events that led to their separation, and is directly contradicted by the trial court’s determination, in the section entitled “Conclusions of Law,” that “[e]xcept for the occasional trips to the Sudan, Ms. Mahmoud has lived in the District of Columbia in the H Street House without interruption since the start of her marriage in 1993.” Thus, that one statement, viewed in isolation, does not render the trial court’s ultimate finding that Mahmoud was a District of Columbia resident clearly erroneous.
Evidence in the record, viewed as a whole, supports the trial court’s finding that Mahmoud was a bona fide resident of D.C. for at least six months preceding the filing of Abulqasim’s divorce action in June 2005.
B. Admission of Testimony about Email.
Abulqasim contends that the trial court abused its discretion by admitting testimony about an email from Abulqasim to Hagir that was not itself introduced into evidence, which he claims was in violation of the best evidence rule. The email was important, he claims, because it formed the basis of the trial court’s finding that Abulqasim had an “improper relationship” with Hagir which, according to appellant, was the reason for the trial court’s distribution of the marital assets to Mahmoud. Appellee responds that the best evidence rule was not violated and that the trial court properly decided the distribution of the marital assets through an analysis of all of the statutory factors set forth in D.C.Code 16 — 910(b), one of which was Abulqasim’s transfer of “tens of thousands of dollars” to Hagir, and that there were “many incontrovertible pieces of evidence” to support this finding. We agree there was no abuse of discretion.
“The best evidence rule requires that when the contents of a writing are to be proved the original must be produced unless its absence is satisfactorily explained.” Walker v. United States,
At trial, Mahmoud testified that she found a “torn up email” from Abulqasim to Hagir that discussed Abulqasim’s “love for [Hagir]” and a “plan” to have Hagir “leave Sudan and meet [Abulqasim] in Egypt.” Mahmoud testified that when she confronted Hagir, she confirmed the existence of the email and the veracity of its contents. Abulqasim argues that Mahmoud failed to satisfy her burden of proving that she performed a “diligent search for the email,” and that her only explanation— that she “ha[d] a whole lot of stuff stolen ... from [her] while [she] was in Sudan ... and I believe one of them [wa]s the email” — was insufficient. In admitting Mahmoud’s testimony concerning the email, the court recognized that testimony about the contents of the writing was hearsay, but ruled that it was not being admitted to prove the truth of a romantic relationship between Abulqasim and his sister-in-law. The court exercised reasonable discretion by admitting the testimony as evidence only to the extent it explained Mahmoud’s actions and not as evidence “that ... could ... come in for the truth of the matter asserted” — the matter asserted being that Hagir and Abulqasim were having a romantic relationship. Thus, the best evidence rule did not apply. See Meyers v. United States,
Moreover, to the extent the court mentioned Abulqasim’s relationship with Ha-gir, it was in connection with his decision to abandon his wife and children and transfer marital funds to Hagir. In its findings, the trial court did not mention the email,
C. Assignment of Separate Personal Property.
Appellant argues that the trial court erred when it did not assign to Abulqasim his separate personal property acquired prior to his marriage to Mah-moud. Specifically, he identifies “most of the 300 items of personal property ... in Defendant’s Exhibit 32,” which was a packing inventory prepared in 2004 prior tó the departure to the Sudan that included a list of books, furniture, computers, and kitchen utensils and dishware, that were his alone and should not have been considered part of the marital assets.
D.C.Code § 16-910(a) (2001) provides that “[u]pon entry of a final decree of ... divorce ..., the Court shall ... assign to each party his or her sole and separate property acquired prior to the marriage _and then distribute “all other property accumulated during the marriage,” i.e., marital property. D.C.Code § 16-910(b). The trial court noted this statutory obligation and recited the substance of the relevant portions of the D.C.Code in the Order. We review the trial court’s determination of ownership of sole property for an abuse of discretion. See Sanders v. Sanders,
As the trial court recognized, the party who claims sole and separate ownership of a particular item bears the burden of establishing that the item is not marital property. See Barnes v. Sherman,
Even if we were to assume, for present purposes, that Abulqasim met his burden of establishing sole and separate ownership of the household items, this does not necessarily mean, however, that Mahmoud could not possess an equitable interest in this property. See Sanders,
[bjefore enactment of the 1977 Marriage and Divorce Act, property owned by one spouse could be distributed to the other upon dissolution of the marriage only if ‘some right or element of ownership, legal or equitable,’ could be found in the spouse who did not hold title ... The language of the new Act does not indicate an intent to abolish or restrict this long-standing approach to ‘sole and separate’ property of a spouse, vesting the trial court with broad discretion in making such determinations.
Id. at 343 (citations omitted). Similarly, in Yeldell v. Yeldell, we recognized that “a divorce court, exercising its general equity power, could apportion individually owned property, but in order to do so, ‘the court was required to find that the non[-]titled spouse had a legal or equitable interest in the property.’ ”
In determining the distribution of marital property, the trial court applied the factors delineated in D.C.Code § 16-910(b) (2001) to the facts, including: (1) the duration of the marriage; (2) Mahmoud’s contributions to the family’s health and happiness; (3) Mahmoud’s desire to work outside of the home, which Abulqasim had prevented her from doing; (4) Abulqasim’s ability to seek profitable employment and refusal to seek a job commensurate with his skills since his separation from Mahmoud; (5) Abulqasim’s cancellation of joint credit cards and depletion of marital joint investment accounts, repeated travels to Africa and the Middle East, and transfer of “tens of thousands of dollars to a woman other than his wife”; (6) Mahmoud’s substantial debt incurred for the care of the four children; (7) Mahmoud’s improvements to the H Street house; and (8) Mahmoud’s limited earning capacity. The court awarded Mahmoud eighty percent of the
Accordingly, because we conclude that the trial court had jurisdiction and did not abuse discretion in distributing the marital property, we affirm the trial court’s judgment.
So ordered.
Notes
. Appellant’s last name is sometimes spelled in the record as "Abul Qasim.” We adopt the spelling in appellant’s brief.
. When the parties were married in the Sudan, they agreed to apply the tenets of Islamic law to their marriage, which included separate and defined roles for the husband and wife.
. Hagir’s name is sometimes spelled as "Ha-dier” in the transcript.
. On July 7, 2005, Abulqasim deposited $75,000 from the workers’ compensation set
. $10,000 on July 11, 2005, and $18,000 on July 25, 2005.
. Mahmoud testified that she first learned of this document when Abulqasim returned to the United States and posted copies of the document in their H Street house. According to Mahmoud, she had not known about the Sudanese divorce proceedings, received no official notice, was not allowed a "discovery period,” and had not participated in any way. Abulqasim conceded that Mahmoud had not been given official notice of the divorce in the Sudan, but testified that she knew about it and could have participated.
. The court found that an earlier child support order issued by D.C. Superior Court requiring Abulqasim to pay $367 per month was "still in effect,” and that "[ajccording to the District of Columbia Support Clearinghouse, as of the date of the last hearing [May 30, 2007], Mr. Abul Qasim owed approximately $20,000 in child support.” In this appeal, appellant does not specifically challenge the court’s award of child custody or support.
. On April 25, 2008, we dismissed Abulqas-im’s appeal because he did not file a statement regarding transcripts, as we had previously ordered on March 20, 2008. On August 6, 2008, Abulqasim filed a motion requesting that his appeal be reinstated, and on August 26, 2008, we granted Abulqasim’s motion and reinstated his appeal.
. To the extent that the trial court’s findings with respect to jurisdiction were not as detailed as appellant now claims they should have been, at least part of the responsibility lies with appellant, who in his complaint for divorce asserted that Mahmoud "has been a bona fide resident of the District of Columbia for more than six months immediately preceding" the filing of the complaint. At no point during the proceedings before the trial court did Abulqasim challenge the court’s jurisdiction or Mahmoud’s allegation of bona fide residence in her counterclaim. To the contrary, in his answer to Mahmoud’s amend
. Because we conclude that the trial court did not clearly err in finding that Mahmoud was a bona fide resident of D.C. for at least six months prior to the filing of the divorce action by Abulqasim, we do not reach appel-lee’s argument that she established jurisdiction for her cause by filing her counterclaim in Superior Court on June 30, 2005 — more than six months after she returned to D.C. from the Sudan — or appellant's contention that a counterclaim cannot survive the dismissal of a complaint for lack of jurisdiction.
. Appellee’s proposed findings of fact and conclusions of law submitted to the trial court on June 8, 2007, included a description of the contents of the email and the confrontation between Mahmoud and Hagir regarding the email. The trial court's final January 31, 2008 Order excluded this evidence and mentioned only that Mahmoud had spoken to Hagir, who confirmed Mahmoud’s suspicions about the affair. This further demonstrates that the trial court did not rely on the email in concluding that Abulqasim and Hagir had a romantic relationship.
. In her brief on appeal, Mahmoud states that she has “repeatedly made it clear that she would allow Abulqasim to have almost every piece of his alleged 'personal property’ that he has demanded, provided that the property is still within her possession or control, and will gladly arrange a time with him to facilitate this transfer.”
. There has been no change in the relevant statutory language since Brice and Yeldell were decided.
. The parties had approximately $10,000 in equity in the H Street house; the unimproved Sudan property had been purchased for $6,000; the 1997 Chrysler minivan cost $6,000 and was in poor condition; the 1999 Toyota Landcruiser was valued at $17,000.
. Mahmoud would have received approximately $196,000, representing 80% of the parties' total marital funds, which included: $25,274.80 (Abulqasim's original deposit into his sole account) + $91,000 (deposits/transfers to Abulqasim’s sole account in 2005) + $20,000 (transfer to Hagir in 2006) + $75,000 (workers' compensation settlement) = $211,274.80.