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                   DISTRICT OF COLUMBIA COURT OF APPEALS

                                         No. 01-FM-1336

                                   M ARINA Z OOB, A PPELLANT,

                                                 V.


                                   X AVIER J ORDAN, A PPELLEE.

                                 Appeal from the Superior Cou rt
                                   of the District o f Colum bia
                                          (DR-3321-00)

                              (Hon. Reggie B. Walton, Trial Judge)

(Argued November 12, 2003                                          Decided February 5, 2004)

       Armin U. Kuder for appellan t.

       Before FARRELL and W ASHINGTON, Associate Judges, and FERREN, Senior Judge.

       F ERREN, Senior Judge: Marina Zoob appeals from a Domestic Relations Branch order

covering divorce, cu stody, visitation , spousal sup port, attorney 's fees, and p roperty

distribution. Only the p roperty is at issue here. Appellant Zoob argues that her former

husband, appellee Xavier Jordan, successfully com pleted a gift transferring to her half-

interests in each of two cooperative apartments and in an associated parking space.1 The trial

court found that Jordan had manifested the requisite intent to make the transfers, and no one

disputes that Zoob had accepted them if made. But the cou rt also found that because Z oob's



       1
           Appe llee Jord an has n ot filed a brief on appea l.
                                                2

name did not appear on e ither apartment's "title," Jordan had failed to effect the transfer and

that the apartments accordingly remained his alone. We conclude, to the contrary, that

Jordan's efforts to transfer half-in terests in the tw o apartm ents to Zoo b were ef fective to

accomplish their delivery to her as a gift. But we also conclude that his actions were not

sufficient to effect delivery of her claimed interest in the p arking spa ce. We th us reverse in

part and affirm in part.




                                                I.



       The parties were married in England on August 16, 1996, and had one child, Ines.

They separated in the Spring of 1998 and, in the following October, entered into a v oluntary

agreement that purpor ted to be a fin al settlemen t of all property claims and was incorporated

in an order of the High Court of Justice in London. The trial court concluded that this U.K.

settlement agreement disposed of the marital property, a ru ling that the pa rties do not co ntest.

Our analysis, therefore, proceeds from the premise that Zoob and Jordan were no longer

married, and thus that their dispute over property is not governed by domestic relations law.



       Pursuant to the settlement agreement and court order, Jordan paid certain expenses

relating to their daughter Ines's education and support. The agreement and order also

required Jordan to pay Zoob the equivalent of $290,000 on or before January 1999, subject

to accomplishment of certain other conditions (including an order granting an abso lute
                                                3

divorce). No judgment of absolute divorce was ever entere d in Engla nd, how ever, and in

early 1999 the parties began to consider reconciliation. Jordan pa id Zoob th e $290,00 0 in

April 1999, and after Jordan received an offer for work in Washington, D.C., the two traveled

there together in Ju ne to look fo r a place to live. They selected the "Mendota" cooperative

apartment building at 2022 20th Street, N.W. Sometime later, w hile vacation ing in Spa in

with Zoob, Jordan briefly traveled to the District of Colum bia and purchased apartment 31

in the Mendota. Soon thereafter, in September, Zoob and her daughter from a previous

marriage, as well as Ines and Jorda n, move d to the Dis trict. Three m onths later, w hile Zoob

was tra veling in Engla nd, Jord an bou ght apa rtmen t 32 in th e sam e buildin g.




        Joyce Rhodes, an employee of the Edmund Flynn Co., which prepares and maintains

ownersh ip and transfer docum ents for the Mendota cooperative, testified at trial about the

process of buying an apartment at the Mendota. First, buyer and seller sign a "cooperative

unit sales contract." Next, the buyer must be approved by the cooperative association board.

The buyer then attends settlement and closes on the apartment. Finally, the buyer signs a

"co-operative apartment ownership contract," which the cooperative board president then

signs on behalf of the board. That contract is retained by the buyer (or by the buyer's lender

in case of a mortgage) and serves as the buyer's evidence of the "right of perpetual use and

enjoym ent" of the designated apartment subject to various obligations (such as monthly

assessments) specified in the contract. It is the functional equivalent in a cooperative regime

of "title" o r "deed " to the p roperty .
                                              4

       Both ownership contracts for apartments 31 and 32 were signed by Jordan alone.

However, one of the closing documents, the "Statement of Ownership" for apartment 32 ­

best described as a cover sheet, with a copy of the ownership contrac t attached, use d to

register ownership on the cooperative association books ­ had the following handwritten

notation at the bottom: "Note: To be amended later to reflect joint ownership by Xavier

Jordan and Marina Zoob (wife)." Furthermore, Jordan submitted e-mail and telephone

requests to the Mendota Cooperative Association in mid-Decem ber1999, asking that Z oob's

name be added to the "deeds" (meaning the ownership contracts) for both apartments 31 and

32. Zoob's n ame acc ordingly w as typed o nto the ownership contract for each apartment and,

thereafter, each contract was signed on behalf of "T he Men dota Ap ts. Inc." by its president,

Scott Weiner.



       In 2000, relations again soured between the parties. In July of that year, Zoob

obtained a temporary protec tion order against Jordan, who proceeded to obtain the same

against Zoob. The two cases we re consolidated and the c ourt entered a consen t temporary

protection order. Du ring the pro ceedings, Z oob lived in apartme nt 31 and J ordan in

apartment 32. On November 9, 2000, Zoob filed a complaint for divorce alleging voluntary

and mutual separation of the parties. She also claimed that her reconciliation with Jordan had

abrogated the British order, effectively restoring her claim to marital property under District

of Colum bia law. The trial court issued Findings o f Fact, Conclusions of Law and Judgment

of Absolute Divorce on June 11, 2001. The court amended that order with an order docketed
                                                 5

on September 21, 2001, from which this appeal is taken.




                                                II.




       In its ruling, the trial court upheld the British order and conc luded that " any prop erty

acquired by the partie s subsequ ent to the issuance of the British Consent Order that is not

covered by that o rder is th e sole p roperty of the p arty wh o acqu ired it." 2 The court credited

Zoob's contention that the parties had agreed to purchase apartment 31 jointly, as evidenced

by the fact that they both had looked at the property as well as the fact that Zoob had

relinquished her residence in London. The court concluded nonetheless that because Jordan

had paid for the apartme nts with his own personal funds ­ one with his own cash held free

and clear, the other with borrowed funds secured by a mortgage solely in his name ­ he was

the sole owner of each. Jordan was ordered to reimburse Zoob $12,446.66 for expenditures

she had made to reno vate ap artmen t 31, and Zoob was g iven thir ty days to vaca te.



       On September 21, 2001, after each pa rty had filed a motion co ntesting the other's

claimed interests in the tw o apartm ents (and in a parking space for apartment 31), the trial

court ruled for Jordan. The trial court ag reed with Zoob that the documen ts of record




       2
          The trial court also granted Zoob, among other things, sole physical and joint legal
custody of the child, Ines, and child support payable in accordance with the preexisting
British o rder. Th ese oth er ruling s have n ot been appea led.
                                                6

evidenced Jordan's intent to mak e Zoob a joint ow ner of each apartm ent, but the trial court

further concluded that despite th is intention Jor dan had f ailed to effect a transfer because he

had not plac ed Zo ob's na me on the ow nership docum ents. In short, because "the properties

were never actually titled to her," there was no evidence of joint acquisition or ownership.3




                                               III.




       In resolving an appeal from a non-jury trial, we "may review both as to the facts and

the law, but the judgment may not be set aside except for errors of law unless it appears that

the judgment is plainly w rong or without evidence to support it." D.C. Code § 17-305 (a)

(2001). "This means that a trial court's findings of fact will not be disturbed unless they are

clearly erroneous." Cahn v. Antioch Univ., 482 A.2d 120, 128 (D.C. 1984) (citation

omitted). A finding is "clearly erroneo us" when, althoug h there is evidence to support it, the

reviewing court is left with a "definite and firm conviction" that a mistake has been made.

Spargnapani v. Wright, 110 A .2d 82, 8 5 (D.C . 1954) (citation omitte d).



       Zoob contends that she is entitled to a fifty percent joint ownership interest in each

of the apartm ents. In her p ost-trial Mo tion to Alter or Amend Findings of Fact, Conclusions

of Law and Judgment of Absolute Divorce, Zoob asserts that she had acquired that interest


       3
        The trial court also increased the amount Jordan owed Zoob for renovations and
made addition al ruling s not at is sue her e.
                                                 7

in each "by gift or transfer," and that "she has an equitable interest based on the parties'

agreem ent, Mr. Jordan's expressed intent, and her exclusive use" of apartment 31. The trial

court, in its September 2001, amended ruling, failed to address directly the question whether

ownership interests in the apartments had been given or otherwise transferred to Zoob; the

trial court merely stated that "the trial record does not support the plaintiff's position" and

agreed with arguments advanced in Jordan's opposition. For its part, Jordan's opposition

supplied three arguments against Zoob's position: that the "totality of the evidence" does not

reflect that Zoob obtained an ownership interes t by way of gift or transfer; that Zo ob's

testimony to the effect that Jordan's failure to give her gifts contributed to the failure of the

marriage is inconsistent with alleging that Jordan had conveyed a gift of property; and that

"neither Ms. Zoob's belief, nor Mr. Jordan's inten tion (which he sub sequently change d),

abrogate the parties' settlem ent agreem ent, nor give Ms. Zo ob any leg al or equitab le claim"

to the pro perties. While we agree (because Zoob does not contest on appeal) that the parties'

British settlement agreement precludes consideration of the apartments as marital property,

we must conclude that the trial court's dispositive ruling ­ that Jordan failed to convey any

ownersh ip interest to Zoob because "the properties were never ac tually titled to he r" ­ is

wron g as a m atter of la w.



       Prelimina rily we note that although Zoob, in the trial court, claimed ownership by

"gift" or other "transfer,"she has limited this appeal to the question whether Jordan made a

gift of the properties. Theoretica lly, of course, a party ma y also receiv e a transfer of property
                                                8

under a contract based on consideration, or in satisfaction of an equitable cla im. On th is

record, however, the trial court rejected ­ and Zoob no longer maintains ­ her equ itable claim

that the apartm ents were marital pro perty. As to the contractual possibility, the trial court

did make findings that "the parties agreed to jointly purchase apartment 31," and that

Jordan's "$60,000 down p aymen t on unit 31 s olely from his separate funds" was "made on

behalf of both pa rties" since it w as "intende d to be remu neration" to Zoob for a sum that she

had expended on behalf of both of them for a Russian employee. Nonetheless, Zoob does

not contend on appeal that she was party to a joint purchase that made Jordan the proverbial

"straw man" holding on her behalf a joint half-interest in apartment 31 (and 32) ­ a

contention, were she to pursu e it, that presumably wo uld require sorting out how much she

still owed Jordan for the property. Accordingly, Zoob's case turns entirely ­ despite the

foregoing trial court findings ­ on whether Jordan transferred th e claimed interests by g ift.




       The essential elem ents of a gift are d onative intent, de livery, an d acce ptance . Ross

v. Fiero, 659 A.2d 234 (D.C. 1995); a m ere promise to make a gift is unenforceable. Thus,

Zoob has the burden to prove each element was established in the trial court proceedings.

Id. at 238 (citation s omitted). A s to the first eleme nt, we have held that "`[i]n order to prove

donative intent, it must be shown from the evidence that the donor clearly and unmistak enly

intended to permanently relinquish all interest in and control over the gift.'" Id. at 239

(quoting Dorsey v. Dorsey, 487 A .2d 118 1, 1184 (Md. 1 985)). In the present case, because

the gift allegedly was a joint ownersh ip interest in the p roperties, Zo ob need s how on ly that
                                                9

Jordan intended to relinquish all interest and control as to the joint interest claimed. The trial

court made n ine factual findings that, when taken together, demonstrate that Jordan had

intended to transfer the claime d owne rship interests in the coope rative apartm ents to Zoob.

In addition to the first two fin dings quo ted above , the court fou nd:




               Third, the plaintiff's role as general contractor for the renovation
               of unit 31 strongly suggests that it was intended that she be a
               joint owner. Fourth, the plaintiff's contribution of a sizable sum
               of money toward th e renovation supports her claim that she
               believed she wou ld be a part o wner. Fifth, the defendant's
               admission that unit 32 was purch ased with the intent to conv ert
               the two units into one residence favors the plaintiff's claim that
               unit 32 was purchased with the intent of that unit also being
               owned jointly by the parties. Sixth, the notation on the
               Statement of Ownership document that was signed by the
               defendant during the settlement on unit 32 on Dec ember 2,
               1999, contains the statement "[t]o be amended later to reflect
               joint ownership by Xavier Jordan a nd M arina Z oob (w ife)."
               Plaintiff's Exhibit 4. Seventh, a communication from the
               defendant to the president of The Mendota Apartments, Inc. on
               December 9, 1999, requesting "(1) Board approval to put
               Marina's name on o wnership deed for 32" and (2) Bo ard
               approval subject to approval by len der to put Marina's name on
               deed for 31 (since this one has m ortgage) . . ." Plaintiff's
               Exhibit 28. Eighth, the defendant's referral to the two apartment
               units as "our apartments". . . . Finally, the defendant's recent
               acquisition of another r esidence o nly several blocks away from
               the Mendota ap artment building, wh ich the court construes as
               inconsistent with the defendant's alleged belief that there was no
               agreement that the plaintiff would be a joint owner in the
               Mend ota buildin g. Collectively the evidence supports the
               plaintiff's position . [Emp hasis ad ded.]



The trial court concluded, however, that because the property still was "titled solely in the
                                              10

defendant's name," Zoob had failed "to prove her position that she is a joint owner. A t best,

. . . the documents merely show that the defendant intended to make the plaintiff a joint

owner."




       The trial court's findings, supported by record evidence, are sufficient to sustain the

trial court's con clusion that Jo rdan intend ed to grant Z oob joint ow nership of b oth

apartments. Although the court d id not use "gift" terminology, its conclusion that "the

defendant intended to make the plaintiff a joint owner" had to mean, on this record, that

Jordan intended for Zoob to receive a joint half-intere st in each ap artment, without further

consideration from h er ­ and thus to that extent a gift. There can be no question that Zoob

accepted whatever gift was made ­ if sufficiently "delivered." The only issue remaining,

therefore, is delivery. M ore specifica lly, did the trial co urt err in conc luding that Jordan

failed to deliver the intended gift becau se of a failure to add Zoob's name to the "title" of

each apa rtment?



       Delivery can be accomplished by bill of sale or other written evidence of the transfer.

Smith v. Acorn, 32 A.2d 252 (D.C. 1943). Delivery is evidenced by acts or words or both.

Ratsch v. Rengel, 23 A.2d 680 (Md. 1942). "Proof of delivery is indispensable, and `if the

thing be not capable of actual delivery, there must be som e act equivalent to it.'" Ross, 659

A.2d at 239 (quoting In re Russ ell's Estate, 123 A .2d 708 , 712 (Pa . 1956) (additional

citations omitte d)).
                                              11

       Contrary to the trial court, we conclude as a matter of law that the evidence of record

compe ls a finding that Jordan delivered to Zoob the intended gift of a joint ownership interest

in each of the Mendota cooperative apartments, 31 and 32. Jordan arranged for written

notation on the "Statemen t of Own ership" for apartm ent 32 stating that the ow nership

contract was to be amend ed to reflect Z oob's joint ownersh ip. Thereafter, h e repeated ly

requested that Zoob's name be added to the apartment ownership "deeds" (meaning the

ownersh ip contracts, which function as titles to the apartments and are surrendered by the

owner upon sale). 4 As a resu lt, the "Co-operative Apa rtment O wnership Contracts " for

apartme nts 31 and 32 w ere both signed and appro ved by the coop erative association board

president, Scott Wiener, after Zoob's name had been added, reflecting the board's approval

of Zoo b as join t owne r.



       It is true that Ms. Rhodes, who prepared and handled the closing documents for the

cooperative board, testified that the usual procedure for adding a second name to ownersh ip

docum ents was not followed. Usually, in adding a name, Ms. Rhodes would reissue the

ownersh ip contract in the names of both owners, each of whom would sign. Then the board




       4
          Jordan sen t e-mail com munica tions to the C ooperative Board p resident, Sco tt
Weiner, dated December 9 and 15, 1999. The December 9 e-mail requests, in part, "(1)
Board approval to put [Zoob's] name on the ownership deed for 32; (2) Board approval
subject to approval by lender to put [Zoob's] name on deed for 31 (since this one has a
mortg age)." Additionally, Joyce Rhodes testified about several phone conversations
regarding Jordan's request that Zoob's name be added to the own ership doc uments fo r both
apartments.
                                               12

president would sign, as w ould the board secretary attesting the president's signature. Here,

although Zoob's name appeared on both ownership contracts, with board approval reflected

by its president's signature, neither Zoob's n or the secretary's signature appeared on either

docum ent. There is no evidence of fraud, however, nor does anyone question the validity of

board president Weiner's signature evidencing implied actual authority to approve Z oob's

co-ownerships on behalf of the board. Nor was there any testimony to the effect that Zoob's

signature assuredly h ad to be ad ded, or the c ontract othe rwise am ended, to v alidate

ownersh ip interests arranged for her by Jordan with her undoubted acquiescence and the

cooperative board's approval. Indeed, given the state of the documents reflecting ownersh ip

interests in Zoob, there can be no doubt that if a third party w ished to pu rchase M endota

apartme nts 31 and 32, the cooperative association would not transfer these properties, and

the prospective purchaser would not accept and sign o wnership documents for them, without

Zoob's agreement and participation. The cloud on a title witho ut her signa ture on the s ale

contract would be heavy indeed. Finally, Jordan's intention to make the transfer was so

unequivo cal, as the trial court findings make clear, that any irregularity in the usual

procedure for adding a s econd na me to ownersh ip docum ents does n ot preclude a ruling that,

at least for purposes of gift law, the delivery was sufficient to establish that a gift was made.

Duggan v. Keto, 554 A.2d 1126, 1135-1136 (D.C. 1989). There may be cases in which

intent to make a gift is sufficiently ambiguous that every formality of a property transfer

would have to be acco mplished to make that intent, as w ell as delivery , clear enoug h to
                                                   13

establish a completed gift. But this is not such a case.5



       In sum, as to apartments 31 and 32 of the Mendota apartment building, we conclude

that the trial court's ru ling as to deliv ery ­ that the property re mained "titled solely in the

defendant's name"­ was erroneous as a matter of fact and law. Zoob's name appeared , with

board approval, on the "Co-operative Apartment Ownership Contract"­ the only "title" there

could be ­ for each a partm ent. Because appellee Jo rdan thus m ade a com pleted gift of b oth

apartments, we must reverse the trial court's order and rule that Zoob is a joint, half-owner

of Me ndota c oopera tive apa rtmen ts 31 an d 32. Sparg napan i, 110 A .2d at 85 .




       With respect to the parking space, how ever, we canno t say that the trial court's

findings were clearly erroneous or its conclusions wrong as a matter of law. D.C. Code § 17-

305 (a); Cahn v . Antioch U niv., 482 A.2d at 128. The parking space was not included in the

ownersh ip documents for either apartment; it required an altogether separate transaction.

And there is no evidence of record demonstrating delivery of an ownership interest in the

parking space as a gift to Zoob, whatever Jordan's intent may have been. Accordingly, we

affirm th e judgm ent as to the park ing spa ce.




       5
         In concluding that there was a gift here between the parties, absent Zoob's signa ture
on the ownership contract, we do not address other situations, such as a claim against an
apartment by a lien or, or by the coo perative board itself, when the putative owner has not
signed the o wnership contract an d has claim ed no intere st in the apartm ent.
  14

Affirmed in part, reversed in part.