                            District of Columbia
                             Court of Appeals
No. 14-FM-100

IVANA CEROVIC,                                                      MAR 17 2016
                                   Appellant,

 v.
                                                               DRB-3624-11
DUSKO J. STOJKOV,
                                   Appellee.

                           On Appeal from the Superior Court
                               of the District of Columbia

       BEFORE: GLICKMAN and FISHER, Associate Judges; and RUIZ, Senior Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the trial court is
reversed, and the case is remanded so that the trial court may determine whether the
appellant proved, by a preponderance of the evidence, that she and the appellee entered
into a marriage under Serbian or District of Columbia law prior to 2010; recalculate the
parties’ marital debt, without any attorney’s fees incurred in connection with their
divorce; reconsider, in light of the recalculation of marital debt, and, possibly of marital
property (if it is determined that the parties had a prior marriage), the equitable
distribution between the parties under D.C. Code § 16-910, and, if appropriate, whether
alimony payments to the appellant are warranted under § 16-910 (d); consider whether
attorney’s fees should be awarded to either party under D.C. Code § 19-911; and
reconsider sanction.

                                                 For the Court:




Dated: March 17, 2016.

Opinion by Senior Judge Vanessa Ruiz.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-FM-100                      3/17/16

                           IVANA CEROVIC, APPELLANT,

                                        V.

                          DUSKO J. STOJKOV, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (DRB-3624-11)

                      (Hon. Jennifer A. DiToro, Trial Judge)

(Argued December 10, 2014                                Decided March 17, 2016)

      Edward E. Schwab for appellant.

      Christopher M. Locey, with whom Michael A. Troy was on the brief, for
appellee.


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

      RUIZ, Senior Judge:     Appellant, Ivana Cerovic, and appellee, Dusko J.

Stojkov, were divorced by Decree of Absolute Divorce entered by the Superior

Court of the District of Columbia. Cerovic argues on appeal that when making an

equitable distribution of property upon dissolution of the marriage, the trial court

erred (1) in its determination that the parties had not been married before their
                                          2

wedding ceremony in 2010, by entering into either a “non-marital cohabitation”

under Serbian law in 2003 or a common law marriage when they later relocated to

the District of Columbia; and (2) in its inclusion of attorney’s fees incurred in

connection with the divorce proceedings as marital debt. Cerovic also argues that

the trial court abused discretion in its equitable distribution of property, denial of

her requests for alimony and attorney’s fees, and in its imposition of a sanction for

failure to present her argument under foreign law in a timely manner. We agree

that the trial court committed legal error in its consideration of Cerovic’s claim that

the parties had been married before their wedding ceremony and in its inclusion of

attorney’s fees incurred in the divorce proceedings as marital debt. These and other

errors require that we remand the case for further proceedings consistent with this

opinion that could affect the distribution of property, alimony, the award of

attorney’s fees, and the sanction.



                                       I. Facts


                     A. The Parties’ Courtship and Marriage



      Cerovic and Stojkov are both native Serbians. Stojkov became a naturalized

American citizen in 2006 and Cerovic is a Serbian citizen who, at the time of trial,

had a pending application for United States citizenship based on her marriage to
                                          3

Stojkov.    She has a bachelor’s degree and a master’s degree in Business

Administration. He is a licensed attorney in the United States.



      The parties met in Serbia in February or March of 2003. Although the exact

date of their first meeting is in dispute, the parties agree that they first spent a

significant amount of time together when they met at a restaurant opening they had

attended separately; they met there again on April 15, 2003. According to Cerovic,

she and Stojkov first had sexual relations on April 17, 2003, at which time they

agreed to live together as husband and wife. Stojkov concurred that they quickly

entered into a romantic and sexual relationship, but denied that they had an

understanding about living together as a married couple. The trial court credited

Stojkov’s testimony, concluding that Cerovic’s claim was “not credible” because

she and Stojkov had at that time been alone together only twice. The trial court

noted that the parties did not “merge any finances, bills, bank accounts or utilities,”

and that Cerovic did not have a key to Stojkov’s apartment or contribute to his

rent. According to Stojkov’s brother, whose testimony was credited by the trial

court, Cerovic and Stojkov would spend many nights at each other’s residences,

but each kept his or her own apartment, furnishings, and possessions. Cerovic’s

grandmother testified that the parties spent all their time together from when they

first met in 2003 and that Cerovic moved into Stojkov’s apartment, although they
                                          4

would also sometimes spend the night in her apartment.              Cerovic told her

grandparents that she loved Stojkov and wanted to marry him.             To allay the

grandparents’ concern about the future of their only grandchild, the grandmother

testified, Stojkov reassured them that “Ivana is now my wife and as my wife she

will be perfectly taken care of.”1 The trial court concluded, as a factual matter, that

the parties did not “cohabit” while they resided in Serbia.2



      In May of 2003, while on vacation in Portugal, the parties agreed to become

engaged before Stojkov was scheduled to leave for the United States.             They

announced their engagement at a gathering of family and friends in Serbia in June

of 2003, at which time Stojkov gave Cerovic a diamond engagement ring.

Stojkov’s father also presented Cerovic with a gift, according to Serbian custom.

The trial court found, as a factual matter, that the parties became engaged in June

of 2003.




      1
        Cerovic’s grandmother, a retired Serbian lawyer, lived with her husband in
the same building as Cerovic. They were very close to Cerovic, the “only one”
they had, following the death of Cerovic’s mother twenty years earlier.
      2
        The trial court’s Order acknowledged that Cerovic’s grandmother testified,
but does not mention the substance of her testimony.
                                         5

      In early July 2003 Stojkov returned, alone, to the United States for work. At

the time he was employed full-time as an attorney at Ernst & Young and owned an

apartment at 2320 Wisconsin Avenue, Northwest, in the District of Columbia,

which he had purchased in December of 2001. Cerovic was employed full-time in

Serbia, but she took a leave of absence from her employment and followed Stojkov

to the United States in August 2003 on a tourist visa. The two lived together in the

Wisconsin Avenue apartment for the duration of Cerovic’s stay in the United

States, until she had to return to Serbia in July of the following year when her

tourist visa expired. She cooked meals and cleaned the apartment. As she was

unable to be employed on her tourist visa, she volunteered for the Serbian Unity

Congress. She also supervised renovations to the Wisconsin Avenue apartment,

for which Stojkov paid.



      Cerovic applied for an H1-B visa (for skilled workers) to be eligible for

employment in the United States. Her application was denied in September of

2004, and she appealed. In October of 2004, three months after Cerovic had

returned to Serbia and was waiting for her visa situation to be resolved, Stojkov

executed a contract to purchase a house at 3507 T Street, Northwest, on which he

closed in November of 2004. Stojkov testified that he did not consult Cerovic

about the purchase and did not list her on the title or mortgage, but said that he
                                         6

purchased the house with the expectation that he and Cerovic would live there

together. Cerovic testified that she communicated with Stojkov “all the time”

while she was in Serbia and was initially against purchasing the T Street house.

Stojkov sold the Wisconsin Avenue apartment in December 2004. Cerovic did not

contribute funds to purchase the Wisconsin Avenue apartment, the T Street house,

or an apartment that Stojkov later purchased in Novi Sad, Serbia in August of

2006.



        Cerovic’s visa application was granted in January of 2005, and she

promptly returned to the United States where she joined the Serbian Unity

Congress as an employee. The T Street house Stojkov had purchased for them to

live in was undergoing renovations, so the parties resided at a friend’s apartment

from February to July of 2005. They moved into the T Street house together in

July of 2005 and it was their home until their separation in November of 2010,

although Stojkov lived in Vienna for work from the end of 2007 until mid-2009.

Cerovic testified that she remained in the United States so as not to jeopardize her

visa status and that she and Stojkov visited each other regularly during that time.

Cerovic testified that she purchased food for the household, and paid various

household expenses and the insurance for Stojkov’s vehicle.              Additional
                                         7

renovations to the T Street house were made in 2006 and 2010; Cerovic

coordinated the selection of the contractors for the project, which Stojkov financed.



      The trial court was presented with evidence that the parties considered

themselves to be married during the years they lived together in the District of

Columbia (2003-04 and 2005-10). A menu from a restaurant (The Inn at Little

Washington in Virginia) dated April 15, 2005, wished the parties “Happy

Anniversary.”   The trial court credited Stojkov’s testimony, however, that he

misled the restaurant by lying about the anniversary in order to get a table on short

notice, and noted that there was no evidence of other anniversary celebrations or

cards during the seven-year period Cerovic claimed they had deemed themselves to

be married. Similarly, in 2008, while Stojkov was working in Vienna, he sent an

email to his bank saying he had neglected to add his “wife, Ivana Cerovic” to his

new bank account. The trial court again credited Stojkov’s testimony that he also

lied to the bank about Cerovic being his wife, this time so that he could add her to

his account remotely, while he was out of the country. During the same period,

Cerovic wrote several emails to Stojkov in which she referred to herself as his wife

or that she signed “Wife” or “Wifey.” However, there is evidence of only a single

response from Stojkov to the emails, in which he referred to Cerovic as “my

happiness,” rather than his wife. Cerovic’s childhood friend testified that Stojkov
                                        8

addressed Cerovic using the Serbian word “žena/o,” which means both “wife” and

“woman.” In a letter to his father, Stojkov referred to Cerovic as “snajki,” which

can mean both “daughter-in-law” and “lass” or “girl.”



      There was also evidence that the parties did not consider themselves to be

married. Friends testified that they did not hold themselves out as a married

couple; a neighbor testified that nothing either of them said or did indicated that

they were married as opposed to living together in a romantic relationship; and a

friend testified that they never referred to each other as “husband” or “wife” and

did not wear wedding rings. The trial court took note that Cerovic and Stojkov did

not maintain a joint bank account3 or a joint budget, did not assume a common

name, owned real property separately, did not have joint debts, and paid bills in

their own names without contribution from the other. Additionally, while Stojkov

was employed with Patton Boggs, LLP, from 2004 to 2008, he identified himself

as single, without any dependents, on personnel records and yearly health

insurance enrollment forms, and Stojkov listed Cerovic as his “fiancée” on an

insurance beneficiary designation form.     Stojkov filed his federal income tax

returns as single, unmarried in 2004, and from 2006 through 2009; whereas in


      3
           As noted, however, Stojkov had asked the bank to add Cerovic to his
account.
                                         9

2010, the year of the ceremonial marriage, he filed as “married filing separately.”

Cerovic also filed federal tax returns as single from 2005-2008.



      Cerovic testified that Stojkov suggested that they should get married in

February or March of 2010.         According to Cerovic, the wedding was a

“confirmation” of their marital status, and was undertaken to allay any question

from United States immigration authorities about the validity of their Serbian

union. Stojkov acknowledged that he was prompted to suggest marriage at that

time because Cerovic’s visa was to expire later in 2010, and she needed to apply

for a green card based on their marriage. He testified, however, that even though

the timing of his proposal was related in part to Cerovic’s immigration status, he

was motivated by love and affection. He wished to “patch up” and “rekindle” their

relationship which had deteriorated, including a physical altercation at the end of

2009, and hoped that marriage would be “an expression of love and commitment.”

They were married in a ceremony held in Las Vegas on April 15, 2010. The court

found that they spent “many thousands of dollars” on Cerovic’s wedding dress and

shoes, wedding bands, travel, hotel, photographs and other expenses incident to

their wedding ceremony.4


      4
         The trial court inferred from the fact that Cerovic bought a wedding dress
that she had not considered herself to be already married at the time.
                                        10



      The parties’ relationship did not improve and they separated in November

2010, seven months after the wedding in Las Vegas. On October 3, 2011, Cerovic

filed a petition for a civil protection order against Stojkov; Stojkov filed his own

petition on November 3, 2011. After a temporary protection order was issued,

both cases were subsequently dismissed with prejudice, at the request of the

parties, on July 6, 2012.



                            B. The Divorce Proceedings



      On November 21, 2011, Stojkov filed a complaint for divorce, based on a

one-year voluntary separation, that commenced the contentious litigation that

resulted in the orders at issue in this appeal. His complaint asserted that he and

Cerovic were married on April 15, 2010 (the wedding in Las Vegas), and that they

separated later that same year, on November 18. In her answer, Cerovic claimed

that she and Stojkov had established a common law marriage before the formal

wedding ceremony, beginning on April 15, 2003, while they were in Serbia, and

that they lived in the District of Columbia as husband and wife from July 2003.5


      5
         Cerovic also filed a counterclaim for unjust enrichment, which the trial
court dismissed. The counterclaim is not an issue on appeal.
                                          11

Stojkov disagreed, and filed a motion in limine for a ruling that there had been no

marriage before the 2010 wedding ceremony. Stojkov argued that there could have

been no “common law marriage” while they were in Serbia because Serbian law

would govern and Serbia is a civil law country. Cerovic opposed the motion. The

trial court bifurcated the proceedings, taking evidence first as to whether the parties

had established a common law marriage, to be followed by evidence pertaining to

the division of marital property. On April 4, 2012, two days before the first

scheduled trial date in the first phase of the proceedings, Cerovic submitted a

memorandum of law in which she argued that she and Stojkov had established a

“non-marital cohabitation” under Serbian law, beginning on April 15, 2003.

When Stojkov objected to the lack of notice and late introduction of Serbian law

into the proceedings, the trial court offered to continue the trial and, after Stojkov’s

counsel declined the continuance, the trial proceeded as scheduled. The trial court

awarded attorney’s fees to Stojkov as a sanction for the lack of timely notice in the

amount he owed his attorney for the first day of trial.



      After the first phase of the proceedings, the trial court issued an order on

June 3, 2013, in which it concluded that property acquired during a Serbian non-

marital cohabitation could not be distributed as marital property under D.C. Code

§ 16-910 (2012 Repl.) because the statute provides for property distribution
                                           12

following the dissolution of a “marriage” and a Serbian non-marital cohabitation is

not a marriage. Thus, any property acquired during such a relationship would be

the “sole and separate property” of the person who acquired it. The trial court also

determined that even if a non-marital cohabitation were considered a marriage for

purposes of § 16-910, Cerovic had not established, by clear and convincing

evidence, that she and Stojkov had such a relationship under Serbian law or a

common law marriage in the District of Columbia before their ceremonial marriage

in 2010. The trial then proceeded on the premise that the only valid marital

relationship was the one formalized by the wedding ceremony on April 15, 2010.



      After the second phase of the proceedings,6 the trial court issued a second

order, dated December 23, 2013, that distributed the marital property and debts

pursuant to D.C. Code § 16-910, based on the 2010 ceremonial marriage. As part

of the calculation, the trial court classified attorney’s fees incurred by the parties in

the divorce proceedings as marital debt, to be distributed equitably between the

parties. The court allocated to Cerovic one third of Stojkov’s marital debt of

$105,897.70 (which included $33,701 in outstanding debt for fees owed to his

attorneys), all of Cerovic’s outstanding debt to her attorneys ($28,368.92), and


      6
        There were a number of motions and rulings concerning discovery and
pendente lite alimony, but they are not contested on appeal.
                                          13

$10,000 she had charged on Stojkov’s credit card to pay her attorney’s fees.7

Overall, Cerovic was allocated $45,632.56 in debt, or roughly half of what the

court considered to be the parties’ marital debt (i.e., including both parties’

outstanding debt to their lawyers). The trial court denied Cerovic’s requests for

alimony and attorney’s fees. The trial court concluded that an alimony award to

Cerovic would not be “just and proper” because she was awarded temporary

support in the form of rehabilitative alimony and continuing use of the T Street

house throughout the two-year pendency of the litigation; she has the ability to

fully support herself; neither party has physical or mental health issues; and,

although the employment history of both parties has been “erratic,” Cerovic’s

employment history was more stable than Stojkov’s. The trial court concluded that

it would be “inequitable” to award attorney’s fees to Cerovic because the litigation,

though lengthy, had not been complicated, with the exception of matters

concerning choice of law and Serbian law. The trial court considered that it had

already taken the “relevant equities” into account in assigning part of Stojkov’s

debt related to attorney’s fees to Cerovic in its equitable distribution of the marital



      7
          In total, Stojkov incurred $144,203 in attorney’s fees while Cerovic
incurred $50,640. She was unable to pay partway through the proceedings and her
counsel withdrew in June 2013, after the trial court’s first order. From that point
forward, Cerovic represented herself during the second phase of the proceedings,
including trial and several motions.
                                          14

property. Cerovic timely appealed the trial court’s orders of June 3, and December

23, 2013.


                                   II. Analysis


                  A. Serbian Non-marital Cohabitation8 and
                 District of Columbia Common Law Marriage



      A central issue in the case was whether the parties had a legally recognized

marriage before the wedding ceremony in April 2010, which took place only seven

months before they separated. The date of the parties’ marriage is significant in

determining the property and debt that is deemed marital and subject to

distribution, see D.C. Code § 16-910 (b) (referring to property “acquired during the

marriage”); and in calculating the duration of the marriage, which is a factor to be

considered in evaluating the equities of the distribution, see id. at (b)(1) (listing

duration of marriage as a relevant factor), and the award of alimony, see § 16-913

(d)(4) (same, with respect to alimony).



      8
         In Serbian the term is “vabranča zajednica.” The trial court and the parties
sometimes also refer, in English, to a Serbian “extramarital communion” or
“extramarital community.” We use the term “non-marital cohabitation” as that is
the term used in the translation of excerpts of the Serbian Constitution and Family
Act from the Serbian Embassy in Washington, D.C., presented by Cerovic to the
trial court.
                                         15

      1.    The Trial Court’s Determination



      The trial court determined that the parties were not married before their

wedding ceremony in 2010, after having found that (1) they did not have a non-

marital cohabitation under Serbian law, and (2) they did not have a common law

marriage during the time that they lived together in the District of Columbia. In

making these determinations, the trial court imposed a burden on Cerovic, as the

proponent of the earlier marriage, to prove her claim by clear and convincing

evidence. The trial court also concluded that even if there had been a non-marital

cohabitation under Serbian law, it was not a “marriage” for purposes of equitable

distribution under D.C. Code § 16-910.



      2.    Burden of Proof



      Cerovic contends that the trial court erred in concluding that she did not

prove that the parties had established a marriage (under Serbian or District of

Columbia law) prior to the 2010 wedding ceremony in Las Vegas because the trial

court applied an incorrect standard (clear and convincing evidence) rather than

preponderance of the evidence. We agree and conclude that because of that legal
                                          16

error the trial court’s finding that the parties did not enter into a marriage in Serbia

or in the District of Columbia prior to their wedding in 2010 cannot be sustained.



      It is well established that a party claiming that a common law marriage

exists must prove the existence of that common law marriage by a preponderance

of the evidence. See Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993). It is similarly

settled that where two marriages are at issue, there is a presumption that the later

marriage is the valid one. See Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977).

This presumption is “one of the strongest presumptions known to the law” and is

among those that “represent a strong social policy in favor of reaching a particular

result in the close or doubtful case.” Mayo v. Ford, 134 A.2d 38, 41 (D.C. 1962).

Although the presumption is not conclusive, it can be rebutted only by ‘“strong,

distinct, satisfactory, and conclusive’ evidence.” Id. (quoting Harsley v. United

States, 187 F.2d 213, 214 (D.C. Cir. 1951)). Therefore, even though generally

speaking, a common law marriage may be proven by a preponderance of the

evidence, we have stated that where an asserted common law marriage precedes

another marriage, to overcome the presumption of the validity of the later marriage
                                          17

the proponent of the prior, common law marriage must prove its existence by

“clear and convincing evidence.”9 Johnson, 372 A.2d at 994.



      It is not necessary, however, to apply that heightened evidentiary burden in

every case where a prior common law marriage is asserted. For the reasons we

now discuss, the requirement that the proponent of the first marriage must meet a

clear and convincing evidence standard applies only in situations in which the

proponent is attempting to prove that the common law marriage with one spouse

precedes marriage with a different spouse, i.e., situations in which the parties to the

asserted successive marriages are not the same.



      In Johnson, for example, the husband entered into a common law marriage

with one woman and subsequently ceremonially married another woman. The

court held that the validity of the earlier, common law marriage had to be proven


      9
        Once an earlier marriage is proven, it renders invalid a later marriage. See
D.C. Code § 16-904 (d)(1) (2012 Repl.) (providing that a marriage contract may be
annulled “where such marriage was contracted while either of the parties thereto
had a former spouse living, unless the former marriage had been lawfully
dissolved”); D.C. Code § 46-401.01 (2012 Repl.) (declaring as “prohibited” and
“absolutely void ab initio”: “the marriage of any persons either of whom has been
previously married and where previous marriage has not been terminated by death
or a decree of divorce”); Lee v. Lee, 201 A.2d 873, 875 (D.C. 1964) (declaring
attempted ceremonial marriage void because earlier common law marriage had not
been dissolved).
                                           18

by clear and convincing evidence to rebut the presumption that the later,

ceremonial marriage was valid. 372 A.2d at 994. Conversely, in East v. East, 536

A.2d 1103, 1105 (D.C. 1988), where the existence of only one marriage — a

common law marriage — was at issue, the court determined that the proponent’s

burden of proof is a preponderance of the evidence. The East court explained that

a common law marriage need only be established by a preponderance of the

evidence “[a]bsent a later marriage which triggers the presumption” that the later

marriage is valid. Id. In East the court was not faced with asserted successive

marriages and therefore did not need to address whether the standard of proof

should differ depending on whether the successive marriages are between the same

or different parties. In Bansda v. Wheeler, 995 A.2d 189, 198 (D.C. 2010), on the

other hand, the trial court applied the preponderance of the evidence standard to

proof of a common law marriage in the context of a case in which the same parties

were subsequently ceremonially married.           The trial court did not expressly

consider what the standard should be in such circumstances or refer to the

presumption that the later marriage is valid.          In affirming the trial court’s

determination that no common law marriage existed, this court simply restated that

the proponent must establish the existence of a common law marriage by a

preponderance of the evidence. Id.10

      10
           Of course, this court did not need to consider the applicability of a stricter
                                                                (continued . . .)
                                          19


      Considering these cases and the policies behind the presumption in favor of

the later marriage, we now make explicit that the proponent of a common law

marriage that precedes a ceremonial marriage between the same two individuals

need only establish the claim by a preponderance of the evidence. The evidentiary

preference in favor of the later marriage assumes different partners, as it “is

grounded in the presumption of innocence of the crime of bigamy, on the

presumption of the regularity of the acts of licensing and officiating officers, and in

the strong public policy of fostering respectability and protecting offspring from

the taint of illegitimacy.” Mayo, 184 A.2d at 41 (discussing the presumption in

ruling on the validity of two marriages between a man and two different women).

These concerns are not present in a situation in which a couple enters into a

common law marriage and subsequently celebrates an official wedding ceremony.

There is no bigamy where the same two individuals are involved and any children

of the couple are, under District of Columbia law, entitled to the same legal

protections whether the parents are married in a ceremony or have established a




__________________________________
(. . . continued)
standard because if the proponent’s evidence did not meet the preponderance
standard, it also did not meet the more exacting clear and convincing standard.
                                        20

common law marriage.11 The regularity of the acts of licensing and officiating

officers is not called into question by the preexisting common law marriage of a

couple that decides to formalize their union in a ceremonial marriage. Nor is the

later marriage imperiled by the assertion of the earlier one, as is the case with

successive marriages with different spouses, see note 9 supra, because recognition

of an earlier marriage between the same spouses does not invalidate the later

marriage.   Thus, in situations involving the same two individuals there is no

overriding need to alter the usual quantum of proof necessary to show that two

persons entered into a common law marriage: a preponderance of the evidence.



      This is not to say that we retreat from the principle that claims of common

law marriage “should be closely scrutinized.” Bansda, 995 A.2d at 198 (quoting

Coates, 622 A.2d at 27). We reiterate that living together, by itself, is not a

common law marriage. See Coates, 622 A.2d at 27 (finding proof of cohabitation

alone insufficient). Being engaged, by itself, does not constitute a common law

marriage, but rather may signify an intention to marry. See Bansda, 935 A.2d at

199 (noting that “an intent to marry someday . . . tends to show the opposite [of a

common law marriage] by showing that the parties, for whatever reason, were not

      11
         Indeed, children of unwed parents also have the same legal protections.
See D.C. Code § 16-914 (2012 Repl.); Ysla v. Lopez, 684 A.2d 775, 779 (D.C.
1996).
                                         21

ready to be legally married until they married” in a ceremony). On the other hand,

the fact that a couple decides to have a formal wedding ceremony is not conclusive

evidence that they did not consider themselves to be already married, as it “might

simply represent a desirable ‘upgrade’ in social status and official acceptability.”

John Crane, Inc. v. Puller, 899 A.2d 879, 919 (Md. 2006). “For a variety of

reasons, partners in common-law marriage may seek the additional advantages of

an official ceremonial imprimatur.” Id. What the proponent of a common law

marriage that precedes a ceremonial marriage must show is that there has been

“cohabitation, as husband and wife, following an express mutual agreement, which

must be in words of the present tense.” Id.



      In this case, the trial court’s analysis was legally flawed because it applied a

burden of proof that was too high in the circumstances of this case. A trial court

errs as a matter of law if it makes a determination that applies an incorrect standard

of proof. See Russell v. CALL/D, LLC, 122 A.3d 860, 870 & n.16 (D.C. 2015)

(noting, in connection with argument that judge had held litigant to a heightened

standard of proof, that trial court erroneously exercises discretion if it applies

incorrect legal standard). As the weighing of evidence against the proper standard

is a function reserved to the trial court as finder of fact, see Ruffin v. Roberts, 89

A.3d 502, 506 (D.C. 2014) (when reviewing for abuse of discretion, appellate court
                                          22

reviews legal determination of trial court de novo and factual findings for clear

error), a reviewing appellate court must remand the case to the trial court for

redetermination of the facts against the proper standard unless the record is clear

that the trial court either must, as a matter of law, or would, based on other findings

not tainted by the error, come to only one determination. See id. (observing that

although trial court applied erroneous standard of proof, a separate reason relied

upon by trial court sufficed to support ruling on an alternative basis). That is not

so in this case, where the trial court emphasized the high burden of clear and

convincing evidence that it was applying as being critical to supporting the

presumption in favor of the later marriage noting that it is “one of the strongest in

the law.”12 For the reasons we have discussed, however, that strong presumption is

not operative in this case where the claimed earlier marriage involves the same

couple as in the later marriage. Moreover, as the trial court recognized, there was

substantive testimony and documentary evidence presented at trial that supported




      12
         The trial court’s order observed that “[c]lear and convincing evidence is
most easily defined as the evidentiary standard that lies somewhere between
preponderance of the evidence and evidence probative beyond a reasonable doubt,
such evidence would produce in the mind of the finder of fact a firm belief or
conviction as to the facts sought to be established.” (quoting In re Estate of
Nethken v. Peerless Ins. Co., 978 A.2d 603, 607 (D.C. 2009).
                                         23

the existence of an earlier marriage between the parties.13 Thus, we cannot, as a

reviewing court, dispense with a remand on the ground that the outcome is either

required as a matter of law or that the trial court’s determination on remand under

the appropriate standard is a foregone conclusion.



      In addition, we note that the trial court’s order articulated the presumption as

being in favor of a ceremonial marriage, rather than the later marriage. But as

East makes clear, the rule is that “where there is more than one marriage, the more

recent one is valid,” 536 A.2d at 1105, and the presumption operates in favor of the

later marriage regardless of whether it is ceremonial or common law in nature. See

Mayo, 184 A.2d at 41 (noting that in case of “clash” between the presumption

favoring continuance of a valid ceremonial marriage and the presumption in favor

of the later marriage, “the first must give way to the second”). Perhaps the trial

court misspoke because it had in mind that in this case the second marriage was

ceremonial in nature, but we clarify the principle so that on remand there is no

confusion on the subject.




      13
          The trial court observed that neither party’s position on whether they
were already married when they celebrated the wedding ceremony in 2010 was
“unreasonable.” It also noted that it “did not find that the testimony of witnesses,
the evidence presented, or the record were frivolous.”
                                         24

      Accordingly, we remand the case with instructions to the trial court to

reconsider the evidence under the proper legal standard: whether Cerovic has

proved, by a preponderance of the evidence, that she and Stojkov were married

prior to their wedding ceremony in 2010 beginning when they were in Serbia in

2003 and/or when they subsequently lived together in the District of Columbia. If

the trial court determines that there was such a prior marriage, it must then

establish its duration and identify the property acquired and debts incurred that

should be considered marital for the purpose of making an equitable distribution of

property and reconsider the award of alimony.



      3.     Serbian Non-marital Cohabitation



      Cerovic contends that in addition to imposing a too-high burden of proof, the

trial court erred in finding that the parties did not enter into a non-marital

cohabitation in Serbia, and in further concluding that, even if they did, it is not a

“marriage” for purposes of equitable distribution under D.C. Code § 16-910. The

existence of a marriage is determined by the law of the jurisdiction where the

marriage occurred. See Bansda, 995 A.2d at 198 (determining that there was no

domestic partnership in the Netherlands for purposes of § 16-910 where

registration required by Dutch law had not taken place). In this case, therefore, the
                                           25

nature of the parties’ relationship when it began in Serbia is to be determined in

accordance with Serbian law. “The court may consider ‘any relevant material’ in

‘determining foreign law,’ and its ruling thereon is considered as a ruling on a

question of law.” See Oparaugo v. Watts, 884 A.2d 63, 71 (D.C. 2005) (quoting

Super. Ct. Civ. R. 44.1 and noting that the Rule puts to rest the idea that foreign

law is a question of fact.). Our review is therefore de novo.



      Both parties presented arguments and evidence concerning non-marital

cohabitation under Serbian law.14 Both parties criticized the qualifications of the

authors of each other’s submissions. Although the trial court’s order of June 3,

2013, did not make explicit reference or cite to these materials, it borrowed

language from the submissions of both parties. The order listed the essential

elements of non-marital cohabitation under Serbian law as: (1) no barriers prevent

the marriage of the parties, (2) the parties “live together in the same way that

      14
          Cerovic submitted translations of excerpts from the Serbian Constitution
and Family Act and a chapter from a book (unidentified) entitled: “Legal Aspects
of Unmarried Cohabitation in Serbian Law — the Alternative Way for Man and
Woman to Live Together,” authored by Olga S. Jovic, Faculty of Law, Priština,
Serbia (“Jovic Chapter”). Stojkov presented an “Expert Witness Report” by
Serbian attorneys Joksovic, Stojanovic & Partners, dated June 5, 2012, that was
prepared for this litigation, “for the benefit of a judicial officer of the D.C. Superior
Court.” In the report, Serbian counsel represent that they are licensed to practice
law in Serbia, that they are “extremely familiar” with Serbian family law, and that
they “recognize an ethical responsibility that goes beyond the oath we have taken
herein, to be candid with the court.”
                                          26

married couples do,” and (3) the duration of the cohabitation is “long lasting.”

These elements appear to be well founded in light of the definition of non-marital

cohabitation in Serbian law.      See Serbian Family Act, Art. 4 (“Non marital

cohabitation is the sustained cohabitation of a man and a woman between whom

there are no marriage impediments (cohabiters).” (Cerovic’s translation) (“Extra

marital communion is a long lasting communion of a woman and a man between

whom there are no marital barriers (extramarital partners).”                (Stojkov’s

translation). Moreover, these elements of the relationship are mentioned in the

Expert Witness Report submitted by Stojkov and the Jovic Chapter submitted by

Cerovic.   On this record, we agree with the trial court’s delineation of the

fundamental elements of Serbian non-marital cohabitation.



      a) The Trial Court’s Determination



      Cerovic does not dispute that these are the essential elements of non-marital

cohabitation under Serbian law. Rather, she disagrees with the trial court’s

assessment of the evidentiary showing required. Specifically, she argues that the

trial court clearly erred in finding that she and Stojkov did not live “together in the

same way as married people do” or “cohabit” because there was undisputed

evidence of “cohabitation,” which Cerovic equates with sustained monogamous
                                         27

sexual relations. She also argues that the trial court improperly took into account

financial and logistical arrangements that were not relevant under the

circumstances of the parties’ time together in Serbia and failed to take into account

factors that were relevant, such as the fact that the parties planned “for a future

together.”



      As we have already determined, the trial court must reconsider the question

of the existence of a prior marriage between the parties under the proper

evidentiary standard, preponderance of the evidence. Without commenting on the

trial court’s eventual finding under that standard, we address the evidentiary

arguments Cerovic presents as they will be relevant on remand. First, concerning

the question of cohabitation, in light of the evidence of Serbian law presented to

the trial judge, we see no error in the trial court’s implicit determination that

evidence of a sexual relationship, even if exclusive, is not enough to prove that the

parties lived “together in the same way that married couples do.” Words used in a

statute are usually given their commonly understood meaning, and must be viewed

in context and interpreted consistent with the statutory purpose. See Tippett v.

Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (referring to statutory

interpretation as a “holistic endeavor” (quoting Washington Gas Light v. Public

Serv. Comm’n, 982 A.2d 691, 716 (D.C. 2009))).           Cerovic has presented no
                                          28

evidence that the Serbian word for “cohabitation” commonly means only sexual

relations or that such an interpretation would be consistent with the purpose of

Article 4 of the Serbian Family Act. To the contrary, the evidence submitted by

both parties is in substantial agreement that non-marital cohabitation under Serbian

law entails a sustained and multi-faceted relationship.          The Jovic Chapter

submitted by Cerovic, for example, describes non-marital cohabitation as “joint

living” and “joint household,” a “long lasting” and “lasting life cohabitation of a

man and a woman, that is unmarried partners.” What constitutes non-marital

cohabitation, according to the Jovic Chapter, is the “totality of the reciprocal

relations of unmarried partners, the fact which compensates for the lack of the

legal form of marriage.” A sexual relationship is part, but not the whole of it.15




      15
           Dotellis v. Dotellis, 187 A.2d 128 (D.C. 1962), on which Cerovic relies,
is not to the contrary. In Dotellis, the court interpreted the word “cohabitation” in
the District of Columbia divorce statute to mean sexual relations where the word
was used as part of the phrase “voluntary separation from bed and board . . .
without cohabitation.” Id. at 129. The court considered “popular or common
usage, and, especially, the context in which the word was used, for otherwise the
word ‘cohabitation’ would have little or no meaning,” where the essence of the
divorce statute is to require proof that the parties live “separate lives.” Id. at 129.
See Pedersen v. Pedersen, 107 F.2d 227, 231 n.12 (D.C. Cir. 1939) (noting that
“caution is appropriate against confusing matrimonial relations with the purely
sexual side of marriage, merely one aspect of the total relation”) (quoted in
Dotellis, 187 A.2d at 128-29)).
                                         29

      With respect to the factors that the trial court did take into account, such as

whether the parties merged their finances or shared a residence to prove the

parties’ intent to live in a marriage-like relationship, we agree with Cerovic that

those factors must be considered in light of their circumstances at the time. In this

case, that meant both parties already had separate apartments and finances when

they met and knew they would be together in Serbia only until Stojkov left for the

United States in three months, which would have made consolidation of their

finances and living arrangements impractical. However, the fact that they did not

share keys to each other’s apartments or “announce[] themselves as husband and

wife to third parties” during that time — two factors the trial court also considered

— are relevant in determining whether there was a “totality of reciprocal

relations.” The trial court did consider the parties’ plans for the future. It found

that the fact that Cerovic took a leave of absence from her employment in Serbia

(but did not quit) to come to the United States and that Stojkov bought a house in

the District of Columbia, without Cerovic’s approval, at a time when Cerovic’s

H1-B visa had been denied belied Cerovic’s claim that they considered themselves

to be husband and wife. Stojkov’s purchase of the house on his own, however, is

not necessarily a rejection of a future life in common, as he testified that he made

the purchase expecting they would live there together and knew that Cerovic had

appealed the visa denial, an appeal she eventually won.
                                         30


      b) Application of D.C. Code § 16-910 to Serbian Non-marital Cohabitation



      Cerovic contends that the trial court also erred in interpreting D.C. Code

§ 16-910 as not applying to a Serbian non-marital cohabitation at all because it is

not a “marriage.”



      D.C. Code § 16-910 provides that “[u]pon entry of a final decree of legal

separation, annulment, or divorce, or upon the termination of a domestic

partnership pursuant to § 32-702 (d),” the trial court shall value and distribute

“property and debt accumulated during the marriage or domestic partnership.”

D.C. Code § 16-910 (b) (emphasis added). Cerovic argued that a Serbian non-

marital cohabitation is the Serbian equivalent of a common law marriage that

“creates property rights without the need for a civil ceremony,” citing Articles 4

and 191 of the Serbian Family Act. Thus, she argues, it should be treated similarly

with respect to distribution of property. The interpretative question for this court,

therefore, is whether, assuming the trial court were to find, on remand, that Cerovic

has met her burden of proving the existence of a non-marital cohabitation in Serbia

by a preponderance of the evidence, it is a “marriage” contemplated by D.C. Code
                                         31

§ 16-910. This also is a question of law we review de novo, as it involves the

interpretation of both D.C. Code § 16-910 and Serbian law.16



      The trial court did not articulate the reasons for its conclusion that a Serbian

non-marital cohabitation “is not a marriage,” except to say that it is not a common

law marriage because Serbia is a civil law jurisdiction Stojkov argued, in addition,

that Serbian non-marital cohabitation should not be considered a marriage because

(1) it need not be formally entered into or dissolved like a marriage, but rather is

terminated “by virtue of factual termination of community life” and (2) there are




      16
           On appeal, Cerovic argues that the trial court erred in not considering
whether a Serbian non-marital cohabitation should be treated as a domestic
partnership under District of Columbia law. She relies on D.C. Code § 32-702 (I)
(2012 Repl.), which provides that “relationships established in accordance with the
laws of other jurisdictions, other than marriages, that are substantially similar to
domestic partnerships established by this chapter, as certified by the Mayor, shall
be recognized as domestic partnerships in the District.” This argument presents an
issue of first impression with respect to the application of D.C. Code § 32-702 (I)
to the courts in making a distribution of property under D.C. Code § 16-910. The
argument was not made to the trial court and we therefore do not address it on
appeal. See Akassy v. William Penn Apts. Ltd. P’ship, 891 A.2d 291, 304 n.11
(D.C. 2006). Moreover, Cerovic has presented no evidence that the Mayor has
“certified” that a non-marital cohabitation under Serbian law is “substantially
similar” to a domestic partnership under District of Columbia law. We review the
trial court’s ruling on the terms in which it was presented to and decided by the
trial court, i.e., whether a Serbian non-marital cohabitation is equivalent to a
“marriage.” The trial court may, if it deems it appropriate, consider the domestic
partnership argument on remand.
                                          32

certain respects in which under Serbian law the property, inheritance and other

rights of cohabiters are not like those of persons who are married.



      It is clear that a Serbian non-marital cohabitation is not a formalized

marriage. See Serbian Family Act, Official Herald of the Republic of Serbia

No. 18/2005, art. 1 (Feb. 24, 2005) (referring to “marriage and marriage relations”

and “relations in non-marital cohabitation”); Jovic Chapter at 214. But neither is a

common law marriage and it is well established that property acquired during a

common law marriage is considered “marital” and subject to equable distribution

under D.C. Code § 16-910. See Bansda, 995 A.2d at 197-98 (reviewing the trial

court’s equitable distribution of property following the dissolution of a common

law marriage); Young-Jones v. Bell, 905 A.2d 275, 277 (D.C. 2006). As Cerovic

recognizes, there is an element of irony in arguing that a legal status labeled

“nonmarital” should be deemed a marriage, but we agree that labels, particularly in

translation, are not dispositive of the proper interpretation of the statute. Rather,

we consider the substance of the elements that give the non-marital cohabitation

relationship legal status under Serbian law. 17


      17
         The argument that non-marital cohabitation should not be treated on a par
with common law marriage because Serbia is a civil jurisdiction is hyper-technical
and not persuasive. The fact that Serbia is not heir to English common law does
not undermine the argument that under Serbian law non-marital cohabitation is in
                                                             (continued . . .)
                                        33

      Stojkov emphasizes the differences between a Serbian non-marital

cohabitation and a District of Columbia common law marriage. For example, a

common law marriage may be legally terminated only by divorce or death of a

spouse. See Hoage v. Murch Bros. Constr. Co., 50 F.2d 983, 984 (D.C. 1931). A

Serbian non-marital cohabitation, on the other hand, can be terminated by the

conduct of the parties.     But that can hardly be deemed dispositive because

domestic partnerships, which are subject to the same equitable distribution of

property as marriages under § 16-910, also do not require a court-decreed divorce

or dissolution, but are terminated by consent of both partners, or even by the

unilateral action of one of the partners. See D.C. Code § 32-702 (d) (2012 Repl.)

(providing for filing a “termination statement” with the Mayor).



      The Serbian Constitution, Article 62, declares that “[n]on marital

cohabitation shall be equal with marriage, in compliance with the law,” and Article

4 of the Serbian Family Act similarly provides that “[c]ohabiters have the rights

and duties of spouses under the conditions of this Act.” These provisions clearly

denote that non-marital cohabitation is not only legally recognized as conferring

__________________________________
(. . . continued)
substance akin to a common law marriage. Because Serbia is a civil law
jurisdiction, non-marital cohabitation is codified in the law of Serbia rather than
the creature of judicial decision-making. We focus on the law, not its source.
                                         34

marriage-like benefits but enjoys constitutional protection in Serbia. With respect

to the issue of property distribution presented in this case, Serbian law expressly

provides that persons in a non-marital cohabitation have “joint” property rights.

See Art. 191 of the Serbian Family Act18; Expert Witness Report (“[C]ourt practice

[has] determined that an extra marital partner is equal in rights and obligations as a

marital partner with respect to support and property, but not with respect to the

right to inherit.” (citing Decision of the District Court in Čačak, Gž 454/07, Apr.

18, 2007)). In light of the evidence of Serbian law that is of record in this case, we

are bound by principles of comity to respect Serbian non-marital cohabitation as

deserving of legal protection on a par with marriage, at least with respect to the

distribution of property. See Bansda, 995 A.2d at 198 (applying Dutch law to

determine whether domestic partnership existed for purposes of equitable

distribution under D.C. Code § 16-910); see also Hilton v. Guyot, 159 U.S.113, 16

S.Ct. 139, 164 (1895) (defining comity as “the recognition which one nation allows

      18
           Article 191 provides:

              Joint Property

              (1) The property that the cohabitees have acquired
              through work during their non-marital cohabitation is
              their joint property.

              (2)   The provisions of this Act governing relations
              between spouses apply accordingly to property relations
              between cohabitees.
                                          35

within its territory to the legislative, executive, or judicial acts of another nation,

having due regard both to international duty and convenience, and to the rights of

its own citizens, or of other persons who are under the protection of its laws”).

Thus, even if, as Stojkov asserts (and the evidence of Serbian law supports), some

incidental property, inheritance, tax and other rights that attend a non-marital

cohabitation are different from those of married spouses under Serbian law,19 that

does not mean that non-marital cohabitation should not be deemed as having a

status “equal with marriage” that authorizes the trial court to distribute property

under D.C. Code § 16-910.20 The purpose of the court’s authority is to sort out in

an “equitable” fashion claims to property between divorcing spouses upon the

entry of a final decree of divorce, thus bringing the parties’ claims to complete

resolution after weighing a variety of factors of the overall marital relationship.

This objective would be thwarted if the trial court were unable to give cognizance

to a relationship between the parties that has a status equal to marriage in the



      19
         None of these different rights, e.g., to take the same family name, be a
forced heir, or apply for citizenship based on the relationship, are relevant to this
case.
      20
            To be clear, once it has been determined that a Serbian non-marital
cohabitation is a “marriage” for purposes of D.C. Code § 16-910, the trial court’s
obligation is not to implement Serbian law but to apply the equitable principles that
have been established for distribution of property under D.C. Code § 16-910. The
trial court’s authority is derived from District of Columbia not Serbian, law.
                                           36

relevant jurisdiction or if property and debts that accrued during that relationship

were not considered in the equation or left unresolved.



      On the record before us there are no findings or evidence as to whether the

parties acquired property or debt during the time of the asserted Serbian non-

marital cohabitation. However, in her counterclaim for unjust enrichment, Cerovic

claimed entitlement to the “increase in value, from the date of purchase [in 2001],

until the date of sale [in 2004]” of the Wisconsin Avenue apartment based on her

“significant contributions, both monetary and non-monetary during the time after

April 15, 2003, to assets in [Stojkov’s] sole name.” After the trial court denied the

unjust enrichment claim, it considered the Wisconsin Avenue apartment to be

Stojkov’s pre-marital sole property based on its determination at the conclusion of

the first phase of the proceedings that the parties did not have a non-marital

cohabitation in Serbia. Whether additional evidence or findings are necessary is a

matter properly for the trial court in the first instance, depending on the trial court’s

reconsideration of the issue of non-marital cohabitation under the preponderance of

the evidence standard.
                                          37


                       B. Distribution of Marital Property



      Cerovic contends that the trial court abused its discretion in its allocation of

marital debt. She argues that the trial court did not have the authority to include

attorney’s fees in the marital debt calculation under § 16-910, and that the

proportion of the debt allocated to her is inequitable in light of the large disparity

between her income and Stojkov’s, and the fact that, when she was unable to pay

an attorney after June of 2013, she was forced to proceed pro se, whereas Stojkov

kept incurring debt for legal representation in opposing her.



      Cerovic also argues that the trial court did not have authority to require her

to repay $10,000 in attorney’s fees she charged to Stojkov’s credit card because

she had no other means to pay for an attorney to maintain the litigation, i.e., that it

was “suit money,” to which she was entitled. She further argues that the order

requiring her to pay $4,000 in rent for remaining in the T Street house during the

proceedings should be stayed until it is determined on remand whether she has

proven by a preponderance of the evidence that the parties had a common law

marriage in the District of Columbia, in which case the T Street house would be

marital property.
                                         38


      We review the distribution of marital property under § 16-910 for abuse of

discretion.   See Abulqasim v. Mahmoud, 49 A.3d 828, 837 (D.C. 2012).

Accordingly, we first consider “whether the [trial court’s] exercise of discretion

was in error, and, if so, whether the impact of the error requires reversal.” Id.

(citation and internal quotation marks omitted).



      We recognize that if the court were to determine on remand that the parties

were married at some time prior to 2010, the court would need to recalculate the

amount of marital property and debt and reconsider its equitable distribution.

However, even if the trial court were to come to the same determination, that there

was no prior marriage, the present distribution cannot be sustained because the trial

court proceeded on a mistaken legal premise as to what constitutes debt subject to

equitable distribution. In classifying and calculating marital debt, the trial court

included the parties’ attorney’s fees, which was a sizeable portion of the debt it

allocated between the parties.21 The attorney’s fees were incurred in connection

with the dissolution of the marriage: a small portion of the fees was incurred

during the litigation of the CPOs, which occurred during the parties’ separation,

and the bulk of the fees was incurred during the divorce proceedings.

      21
        Outstanding debt for attorney’s fees of both parties totaling $62,078.00
amounted to forty percent of the total marital debt of $157,209.
                                           39


        This court has not decided whether attorney’s fees incurred during a divorce

may be classified as marital debt for equitable distribution under D.C. Code § 16-

910. It is well established, however, that under the “American Rule” “[p]arties to

litigation usually pay their own costs and attorney’s fees,” which is subject to

“only a few exceptions,” such as fees authorized by statute, rule, or contract, or in

cases involving bad faith. Steadman v. Steadman, 514 A.2d 1196, 1200 n.4 (D.C.

1986); see Murphy v. Murphy, 46 A.3d 1093, 1101 (D.C. 2012) (“In the absence of

statutory or rule authority, attorney’s fees are not allowed as an element of

damages, costs, or otherwise.” (quoting Sudderth v. Sudderth, 984 A.2d 1262,

1269 (D.C. 2009))). Although we have not yet considered the exact issue, our case

law concerning attorney’s fees in divorce cases suggests that attorney’s fees are not

distributed as debt under D.C. Code § 16-910, but may be awarded under D.C.

Code § 16-911. See, e.g., Sudderth, 984 A.2d at 1269 (considering the trial court’s

award of attorney’s fees “[u]nrelated to the distribution of marital property”);

Meyers & Batzell v. Moezie, 208 A.2d 627, 629 (D.C. 1965) (noting that “recovery

of attorneys’ fees is ancillary to the divorce action”).



        We begin our analysis with the words of the statute. See Tippett, 10 A.3d at

1126.     The District of Columbia statute does not define the terms “marital

property” or “marital debt.”      Section 16-910 simply refers to distribution of
                                          40

“property and debt accumulated during the marriage.” D.C. Code § 16-910 (b).

Thus, a literal reading would permit inclusion of attorney’s fees incurred in the

course of divorce proceedings as debt to be distributed between the parties,

because the parties were still legally married at the time the debt for attorney’s fees

was incurred, and in that sense was “accumulated during the marriage.”

(Emphasis added.) Many jurisdictions, however, do not classify attorney’s fees

incurred in the course of divorce proceedings as marital debt because “expenses of

terminating the marriage itself can hardly be marital, especially where the

termination results from the bad conduct or deliberate choice of the other spouse.”

Brett R. Turner, Equitable Distribution of Marital Property § 6:97 (2014). These

jurisdictions do not permit attorney’s fees to be distributed equitably because to be

considered “marital debt,” the obligation should be “a debt incurred during the

marriage and before the date of separation, by either spouse or both spouses, for

the joint benefit of the parties.” Finley-Swanson v. Swanson, 823 N.W.2d 697, 706

(Neb. Ct. App. 2012); see, e.g., Rodvik v. Rodvik, 151 P.3d 338, 346 (Alaska 2006)

(holding that, on remand, the trial court should remove attorney’s fees incurred

during the divorce proceedings from the “marital debt” classification); Smith v.

Smith, 934 So. 2d 636, 642 (Fla. Dist. Ct. App. 2006) (holding that the

classification of divorce mediation fees as marital debt was error); Schmitz v.

Schmitz, 950 So. 2d 462, 463 (Fla. Dist. Ct. App. 2004) (holding that the
                                          41

classification of attorney’s fees incurred after the filing of the divorce action as

marital debt was error); In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa

2007) (“Attorneys’ fees incurred in dissolution proceedings are not marital debt.”);

Va. Code Ann. § 20-107.3 (5) (defining “marital debt” as “all debt incurred in the

joint names of the parties before the date of the last separation of the parties”).



      In determining the scope of debts to be equitably distributed under § 16-910,

we consider the statute as a whole. See Tippett, 10 A.3d at 1127. The District of

Columbia statutory scheme governing actions for separation and divorce sets out

different sources of authority and standards for the distribution of property (§ 16-

910); for pendente lite relief, including attorney’s fees (§ 16-911); and for alimony

(§ 16-913). Section 16-911 provides:


             During the pendency of an action for legal separation,
             divorce, the termination of a domestic partnership
             pursuant to § 32-702 (d), where one of the domestic
             partners has filed a petition for relief under this section,
             or an action by a spouse to declare the marriage null and
             void, where the nullity is denied by the other spouse, the
             court may:

             (1) require the spouse or domestic partner . . . to pay suit
             money, including counsel fees, to enable such other
             spouse to conduct the case. The court may enforce any
             such order by attachment, garnishment, or imprisonment
             for disobedience. . . .
                                        42

D.C. Code § 16-911 (a) (1) (2015 Supp.).



      The purpose of allowing trial courts to award money to pay attorney’s fees

under § 16-911 is “to ensure that a party in a divorce action not be hindered

unfairly in maintaining the action by unequal burdens between the spouses,” or to

“enable a spouse to conduct litigation.” Tydings v. Tydings, 567 A.2d 886, 890,

891 n.5 (D.C. 1989). It aims “to equalize the burdens between the spouses;

otherwise a party armed with superior economic resources may favor ‘litigation as

a means to force a settlement by attrition.’” Id. at 890. Consequently, “before a

court may exercise its discretion to award suit money under § 16-911(a), the

spouse requesting fees must make an initial showing that the suit money is

necessary to enable that spouse to ‘carry on or defend’ the divorce action.”

McClintic v. McClintic, 39 A.3d 1274, 1279 (D.C. 2012) (quoting definition of

“suit money” in Rubin v. Rubin, 195 A.2d 696, 700 (Md. 1963)).             Thus, a

“threshold showing of need” is mandatory to trigger application of § 16-911 (a).

Id. That determination of need is to be made based on the financial situation of the

requester as of the time that the litigation is taking place, although the award of

fees may take place after the litigation is conducted. See Araya v. Keleta, 65 A.3d

40, 58 (D.C. 2013) (interpreting §16-911(a)(1) provision authorizing court to

award suit money “during the pendency of an action for divorce” as permitting
                                          43

award of fees “after trial and after the divorce decree has been issued”); Tydings,

567 A.2d at 891 (noting that statute’s purpose would be “ill-served by a refusal to

permit attorney’s fees at all if a spouse subjected to harassing litigation were still

fortunate enough to win a substantial property distribution”).



      The award of fees under § 16-911, therefore, requires a two-step inquiry:

first, “whether to award a fee, and if so, to whom”; and second, the amount of the

award. Steadman, 514 A.2d at 1200-01. Once the threshold showing of need has

been met, the trial court may — but is not required to — award fees.               See

McClintic, 39 A.3d at 1279-80. The determination whether to award fees and, if

so, in what amount, involves a variety of factors, such as the current financial

ability to pay of the opposing spouse, the requester’s failure to cooperate and

whether the requester made litigation “burdensome and oppressive” in a manner

that increased its costs, the necessity for the services of an attorney and the quality

and nature of the work performed. See id. at 1280; Kelly v. Clyburn, 490 A.2d

188, 191 (D.C. 1985). The motivations of the parties may be taken into account,

but depending on the size of the award, may not be given so much weight that it

“creates the very real risk of turning an award of attorney’s fees into punitive

damages, which are beyond the power of the court to grant.” Rachal v. Rachal,

489 A.2d 476, 478 (D.C. 1985). Classification of attorney’s fees incurred during
                                        44

divorce proceedings as “marital debt,” and distribution of debt for such fees

between the parties as part of the equitable distribution of property, would bypass

the specific statutory authority in § 16-911, without engaging in the two-step

analysis we have interpreted the statute to require or considering the factors we

have identified should be taken into account at each step of the process. To permit

the trial court to effectively award attorney’s fees through allocation of marital

debt also falls outside the mechanism prescribed in the statute, which provides that

an order for suit money is to be enforced by specified means:          “attachment,

garnishment, or imprisonment for disobedience.” D.C. Code § 16-911 (a)(1).



      In view of the specific and separate statutory section, D.C. Code § 16-911,

that concerns attorney’s fees for prosecution of divorce actions and the detailed

analysis required for their award under that statutory provision, we hold that

attorney’s fees incurred during litigation of the dissolution of a marriage may not

be classified as marital debt and distributed pursuant to D.C. Code § 16-910. Cf. In

re Marriage of Huff, 834 P.2d 244, 248 (Colo. 1992) (holding that attorney’s fees

may not be incorporated into pendente lite payment because statutory scheme

provides for different standards and separate determinations concerning division of

property, attorney’s fees and maintenance payments).
                                         45


      Consequently, on remand the trial court should exclude all attorney’s fees

incurred during litigation of the CPOs and the divorce from the marital debt

calculus, re-determine the amount of marital debt incurred by the parties during

their marriage (i.e., during the marital period after reconsideration of the evidence

of an earlier marriage under the proper evidentiary standard), and reconsider the

equitable distribution of that debt.22



      The trial court also should consider on remand whether an award of

attorney’s fees under § 16-911 is appropriate pursuant to the required analysis.

The trial court denied Cerovic’s request for attorney’s fees relying on the fact that

it had effectively “awarded” attorney’s fees to Stojkov when it distributed part of

his debt for attorney’s fees to Cerovic as marital debt. This was error because the

first, and indispensable, determination under § 16-911 is whether the requesting

party has made a showing of need. See McClintic, 39 A.3d at 1280. The trial court




      22
         Because on remand the trial court will need to recalculate and redistribute
the marital debt, and may include additional property as marital property,
depending on its reconsideration of the claim of an earlier marriage, we do not
consider Cerovic’s claims of abuse of discretion addressed to the proportions in
which the court allocated the debt.
                                         46

has not made the predicate finding of need as to either party. 23 Once that showing

is made, the statute authorizes the award of fees, and the trial court may take a

number of factors into account in determining whether to make an award, and if so,

in what amount. On remand, the trial court should reconsider both parties’ request

for attorney’s fees under § 16-911, taking into account their financial need during

the litigation as well as their relative ability to conduct and/or defend the divorce

litigation. The court should make the necessary findings of fact and conclusions of

law. See Murphy, 46 A.3d at 1100-01 (citing Super. Ct. Dom. Rel. 57 (d)(3) and

Moore v. Moore, 391 A.2d 762, 770 (D.C. 1978)).



                                   C. Alimony



      Cerovic contends that the trial court abused discretion in denying her request

for alimony. She claims entitlement to alimony because she was not awarded both


      23
          It is not necessary that the spouse seeking suit money be penniless, but
that the money is necessary for the spouse to “carry on or defend” the divorce
action. McClintic, 39 A.3d at 1279. “[S]ome showing of inequality of litigation
resources” during the litigation (i.e., before the outcome of the proceeding) must be
made. Id. at 1280. Cerovic argues that the trial court abused discretion in denying
her request for fees under § 16-911 because she clearly demonstrated a need, as she
could not afford an attorney midway through the proceedings and had to continue
pro se. Stojkov, who is an attorney, was able to retain his attorneys, although he
had a considerable debt to his lawyers outstanding at the time of the court’s
disposition of the case.
                                          47

temporary alimony and rent-free use of the T Street house, as the trial court

erroneously thought when it denied her alimony request; she is unable to fully

support herself; and although both she and Stojkov have had relatively stable

employment, her job opportunities and salary history have been constrained by her

visa situation, whereas Stojkov’s income has been higher than hers.



      The decision whether to award alimony is “committed to the sound

discretion of the trial court and will be disturbed on appeal only when the record

manifests an abuse of that discretion.” Weiner v. Weiner, 605 A.2d 18, 19 (D.C.

1992) (quoting McCree v. McCree, 464 A.2d 922, 932 (D.C. 1983)). On appeal,

“[w]e will not reverse an alimony award so long as the trial court made a fair and

equitable award after considering the particular facts of the case in light of all

relevant factors.” Sudderth, 984 A.2d at 1266.



      The purpose of alimony is to provide “reasonable and necessary support.”

Leftwich v. Leftwich, 442 A.2d 139, 142 (D.C. 1982). Under D.C. Code § 16-913

(d), the trial court must consider a variety of factors in determining whether to

award alimony and how much alimony to award, including (1) the ability of the

recipient to support himself or herself, fully or partially; (2) the time necessary for

the recipient to gain education or employment; (3) the standard of living
                                         48

established during the marriage; (4) the duration of the marriage; (5) the

circumstances under which the parties became estranged; (6) the age and physical

and mental health of each party; and (7) financial need.         See McEachnie v.

McEachnie, 216 A.2d 169, 170 (D.C. 1966) (listing factors).



      The trial court considered many of these factors in concluding that appellant

is not entitled to alimony. The trial court noted that appellant received temporary,

rehabilitative alimony “as well as” continued use of the T Street property “through

the nearly two years of the ongoing litigation”24; that appellant is able to support

herself, is employed and has a pending application for U.S. citizenship that, if

granted, would open more opportunities for employment; that she does not require

further education; that neither party is in notably better physical or mental health

than the other; and that both parties have “somewhat erratic” employment

histories, but that Cerovic’s had been more stable. The trial court considered the

factors relevant to the strains in the marriage and found that both parties

      24
           This is not accurate. The trial court entered an order on July 13, 2012,
that required Cerovic to vacate the T Street house and Stojkov to pay $2,500/
month in pendente lite spousal support. The trial court then granted the parties’
joint request to stay the order to vacate and for pendente lite support. When
Stojov’s motion to vacate the stay concerning occupancy of the house was granted,
Cerovic was required to pay rent ($4,000) while she continued to occupy the T
Street house and she has been required to make that payment. The record is clear
that rent-free use of the T Street house was in lieu of, not in addition to, pendente
lite support.
                                         49

“contributed equally” to its dissolution. Although the trial court pointed to a

number of permissible factors in denying Cerovic’s request for alimony, on the

current record we cannot discern how much weight the trial court gave to the

mistaken belief that Cerovic had more pendente lite support than she in fact

received. Without knowing that the trial court would have come to the same

determination under an accurate understanding of the pendente lite support, we

must remand the question of alimony for the trial court’s reassessment. We also

note that if the trial court were to conclude on remand that Cerovic has proved by a

preponderance of the evidence that the parties had a marriage prior to 2010, some

factors in the alimony evaluation, such as the duration of the marriage, would

change. In that event, the trial court should reconsider Cerovic’s request for

alimony.



                                    D. Sanction



      Finally, Cerovic contends that the trial court erred by requiring her to pay for

one day of Stojkov’s attorney’s fees as a sanction for presenting her argument

under Serbian law on the eve of trial, without proper prior notice to Stojkov. She

argues that the sanction amount should be reversed or reduced because the trial

court offered a continuance to Stojkov so that he could respond to the Serbian law
                                            50

argument, but his counsel requested that the trial continue as scheduled and the

trial court took testimony from Cerovic that day. In effect, she argues that because

counsel would have been in court in any event, Stojkov suffered no prejudice as he

had time to (and did) respond with his own memorandum of Serbian law.

Moreover, according to Cerovic, Stojkov already knew about the significance of

Serbian law as evidenced by his motion in limine to preclude evidence about the

parties’ relationship in Serbia, on the ground that the law of the jurisdiction where

the marriage occurred applied, citing Bansda, 995 A.2d at 198, and that as a civil

law country, Serbia did not recognize common law marriage. It was in response to

this argument that Cerovic presented a memorandum on non-marital cohabitation

under Serbian law.



      We review a trial court’s imposition of a sanction for abuse of discretion.

Id. at 204-05. After Cerovic submitted her memorandum of law on Serbian non-

marital cohabitation two days before trial, the trial court stated that, “to be fair,”

the appropriate remedy was to continue the trial, so that Stojkov would have time

to respond and the issue would be taken up at the next-scheduled trial date. The

court then awarded fees for the “lost” trial day. Stojkov’s counsel, however, asked

that the trial go ahead that day because Stojkov had traveled to be present; Cerovic

then took the stand as the first witness.
                                          51


      A party who “intends to raise an issue concerning the law of a foreign

country shall give notice by pleadings or other reasonable written notice.” Super.

Ct. Civ. R. 44.1. As Cerovic was the proponent of a marriage under Serbian law, it

was her burden to present the law of Serbia on that issue and to give “reasonable”

written notice to Stojkov. As Cerovic did not give reasonable notice, in principle,

the trial court could sanction her for not complying with Rule 44.1. In imposing

the sanction, the trial court explained, “this aspect of the litigation was sufficiently

complex that [Stojkov] required the services of an attorney,” and concluded that an

appropriate sanction was $1,516.66, based on counsel’s hourly billing rate

multiplied by the number of hours his attorney spent on the first day of trial.

Notwithstanding our deference to the trial court on the imposition of sanctions, we

are hard pressed to understand the sanction amount in light of the court’s

articulated rationale. There is no relationship between Stojkov’s counsel’s fees for

the first day of trial (which went forward as scheduled) and the delay in providing

notice of non-marital cohabitation under Serbian law, which was the subject of

subsequent briefing and hearings. The trial court should reconsider the sanction on

remand.
                                          52


                                    III. Remand


      We reverse and remand the case so that the trial court may (1) determine

whether Cerovic proved, by a preponderance of the evidence, that she and Stojkov

entered into a marriage under Serbian or District of Columbia law prior to 2010;

(2) recalculate the parties’ marital debt, without the attorney’s fees incurred in

connection with their divorce; (3) reconsider, in light of the recalculation of marital

debt, and, possibly of marital property (if it is determined that the parties had a

prior marriage), the equitable distribution between the parties under D.C. Code

§ 16-910, and, if appropriate, whether alimony payments to Cerovic are warranted

under § 16-910 (d); (4) consider whether attorney’s fees should be awarded to

either party under D.C. Code § 16-911; and (5) reconsider the sanction.



                                               So ordered.
