Arneault v. Arneault

• Decision Date: 02 December 2004
• Docket Number: No. 31772.,31772.
• Citation: 605 S.E.2d 590,216 W.Va. 215
• Parties: Edson R. ARNEAULT, Petitioner Below, Appellee v. Margaret B. ARNEAULT, Respondent Below, Appellant
• Court: West Virginia Supreme Court

605 S.E.2d 590

216 W.Va. 215

Edson R. ARNEAULT, Petitioner Below, Appellee v. Margaret B. ARNEAULT, Respondent Below, Appellant

No. 31772.

Supreme Court of Appeals of West Virginia.

Submitted November 9, 2004.

Decided December 2, 2004.

Robert P. Fitzsimmons, Esq., Fitzsimmons Law Offices, Wheeling, West Virginia, Daniel J. Guida, Esq., Guida Law Offices, Weirton, West Virginia, Attorneys for Appellee.

Richard F. Neely, Esq., Neely & Hunter, Charleston, West Virginia, Mark A. Swartz, Esq., Swartz & Stump, Charleston, West Virginia, Robyn Ruttenberg, Esq., Attorney at Law, Wheeling, West Virginia, Attorneys for Appellant.

PER CURIAM:

The appellant, Margaret Arneault, wife of appellee, Edson R. Arneault, petitioned the Circuit Court of Hancock County for a writ of mandamus, or in the alternative, a writ of prohibition to require the Family Court of Hancock County to award her one or all of the following: suit money with which to pay her attorneys; temporary support; and an advance on her share of the marital assets so that she could maintain her customary and usual standard of living. On April 8, 2004, the circuit court denied the petition on the basis that the appellant did not present any grounds on which to grant the requested relief. On April 12, 2004, the appellant filed a Petition for Appeal before this Court, and on June 15, 2004, this Court granted the appellant's petition. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court reverses the circuit court's decision and remands the case to the family court with directions.

I. FACTUAL AND PROCEDURAL HISTORY

The appellant, Margaret Arneault, has been a full-time housewife and mother for thirty-three years. The appellee, Edson R. Arneault, is the president, chairman, chief executive officer, and largest shareholder of MTR Gaming Group, Inc. (hereinafter "MTR"). MTR is a publicly traded corporation that owns and controls Mountaineer Park, Inc., which operates video lottery terminals pursuant to a license granted by the West Virginia Lottery Commission.

On July 12, 1969, the appellant and the appellee were married and later became parents of two children. On March 22, 2002, the appellee filed a petition for divorce alleging irreconcilable differences. On September 9, 2002, the appellant filed an answer to the petition for divorce admitting that irreconcilable differences had arisen between the parties. On November 22, 2002, the appellant filed a Motion for Temporary Relief seeking, among other things, alimony and suit money. On December 20, 2002, the parties were legally separated.

On April 22, 2003, the Family Court of Hancock County entered an interlocutory order providing that the appellee pay the mortgage and taxes on the house in Michigan that the appellant uses, and to pay the auto lease on the appellant's vehicle. The appellant was also provided $2,000 per month from which she was expected to make substantial life insurance payments and debt repayments. Within the same order, the family court held that such direct cash payments to the appellant were to stop on January 1, 2004. Subsequently, on January 27, 2004, the appellant filed a petition for a writ of prohibition and/or mandamus in the Circuit Court of Hancock County seeking cash payments from the appellant as previously ordered. On March 26, 2004, the circuit court held a hearing and on April 8, 2004, an order was entered denying the relief sought by the appellant's petition.

On April 12, 2004, the appellant filed a Petition for Appeal before this Court with regard to the circuit court's April 8, 2004, denial of her petition. On June 15, 2004, this Court granted the appellant's Petition for Appeal. Meanwhile, on July 22, 2004, the Family Court of Hancock County entered a final order in the aforementioned divorce pending before such court, providing $20,000 per month to the appellant as advancement towards equitable distribution, while reserving a separate hearing on the matter of spousal support for an unspecified date.

The subject of the appeal before this Court is the April 8, 2004, denial of the appellant's petition for a writ of mandamus by the Circuit Court of Hancock County.

II. STANDARD OF REVIEW

The appellant characterizes her pleading as an appeal of the Circuit Court of Hancock County's denial of her "Petition For Writ Of Prohibition And/Or Mandamus." Because the appellant seeks to have this Court enter an order directing the circuit court to require the family court to issue various types of relief, we will treat this as an appeal of a petition for a writ of mandamus seeking to compel Judge Recht to require the family court to act accordingly. Our standard of review for proceedings in mandamus is long established:

A writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.

Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Accord, Syllabus Point 5, Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996), modified in part, Cathe A. v. Doddridge County Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997); Syllabus Point 2, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996); Syllabus Point 1, Hickman v. Epstein, 192 W.Va. 42, 450 S.E.2d 406 (1994); Syllabus Point 1, State ex rel. McGraw v. West Virginia Ethics Com'n, 200 W.Va. 723, 490 S.E.2d 812 (1997). Likewise, we have stated that a de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus. McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). Thus, with this standards in mind, we consider the parties' arguments.

III. DISCUSSION

As noted above, the appellant appeals the April 8, 2004, denial of her petition for a writ of mandamus by the Circuit Court of Hancock County. In her petition, the appellant asked the circuit court to require the Family Court of Hancock County to award her one or all of the following: suit money with which to pay her lawyers; temporary support; and an advance on her share of the marital assets so that she could maintain her customary and usual standard of living. In this appeal, the appellant maintains that W.Va.Code § 48-1-305(b) and W.Va.Code § 48-5-504(a) and (b) allow a family court to award suit money, and that it was a "shocking abuse of discretion" for the family court not to have awarded suit money or, at least, to have awarded her an advance on her share of the marital property. The appellant states that the appellee earned more than $4.9 million in 2003, while she spent most of her life as a housewife who reared two children and earned a total of $108,028 in wages from 1966 until 2000. The appellant adds that in spite of the disparity in available income between the parties, that on April 22, 2003, the Family Court of Hancock County entered an interlocutory order directing that any direct cash payments to the appellant were to stop on January 1, 2004, even though the issues surrounding the marital assets had not been decided and that years of litigation were foreseeable.

The appellant's counsel further maintains that the Circuit Court of Hancock County erred by failing to order the family court to award her suit money to pay her legal fees. The appellant's counsel also says that "the current posture of this domestic case is a clear and bold example of simple extortion." The appellant further states that her primary counsel, Mr. Swartz, at the time of the March 26, 2004, hearing before Hancock County Circuit Judge Recht, had been extending her credit since November 2003, and that Mr. Swartz had been forced to advance, out-of-pocket, all travel money, deposition costs, and other expenses. The appellant's counsel also contends that the appellee, to the contrary, "has been able to buy the finest trial lawyer in northern West Virginia and hire any expert anywhere in the world and pay everyone cash on the spot at whatever rate top-of-the-line personnel demand." Thus, the appellant's counsel concludes that "[the appellee's] strategy in this case differs little from the standard strategy of all well-funded defendants-namely, to try to make this case so confusing and so complicated that the litigation goes on for years, during which [the appellant] will be starved out and her lawyers ground down because they can no longer carry her and pay her out-of-pocket expenses."

The appellant alleges that she and the appellee had net assets of roughly $28 million that were acquired through joint efforts during the marriage and that regardless of what interpretation is given to W.Va.Code § 48-7-103, the appellant would be entitled to no less than $1 million. Therefore, the appellant argues that it was an abuse of discretion not to give her at least an advance on her equitable distribution to allow her to live in a manner in which she had become accustomed and to provide sufficient funds to fight her surpassingly well-financed husband in court.

Conversely, the appellee contends that the appellant's arguments before this Court are moot because of the family court judge's July 22, 2004, order, which was rendered after this Court accepted the appellant's Petition for Appeal. The appellee points out that in the family court's order, that the appellant was awarded more than $100,000 in attorney fees with a deferment of additional fees to be determined at the conclusion of spousal support litigation, plus $20,000 per month to begin August 1, 2004, as an advancement towards equitable distribution. The appellee charges that the appellant's filing of her petition for a writ of mandamus was prior to the Family Court's final order, and that the final...