Barber v. Barber

• Decision Date: 16 October 1995
• Docket Number: No. 22805,22805
• Citation: 464 S.E.2d 358,195 W.Va. 38
• Court: West Virginia Supreme Court
• Parties: Grace Huang BARBER, Administratrix of the Estate of Charles A. Barber, Plaintiff Below, Appellee, v. Larry E. BARBER, Defendant Below, Appellee, Rilda Sue Barber Call, Intervenor Below, Appellant.

Page 358

464 S.E.2d 358

195 W.Va. 38

Grace Huang BARBER, Administratrix of the Estate of Charles

A. Barber, Plaintiff Below, Appellee, v. Larry E. BARBER, Defendant Below, Appellee, Rilda Sue Barber Call, Intervenor Below, Appellant.

No. 22805.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 13, 1995.

Decided Oct. 16, 1995.

Syllabus by the Court

1. Where a judgment is obtained for money owed under W.Va.Code, 38-4-5 (1923), the execution issued on it is known as a writ of fieri facias. Under W.Va.Code, 38-4-8 (1923), this writ becomes a lien upon the personal property, or the estate or interest therein, owned by the judgment debtor from the time the writ is delivered to the sheriff.

2. Under W.Va.Code, 38-5-10 (1923), a suggestion is available to a judgment creditor where some person is indebted or liable to the judgment debtor or has in his possession or under his control personal property belonging to the judgment debtor.

3. "A nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby." Syl. pt. 3, State ex rel. Palumbo v. County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966).

4. "Rule 60(a) of the West Virginia Rules of Civil Procedure applies to clerical errors made through oversight or omission which are part of the record and is not intended to adversely affect the rights of the parties or alter the substance of the order, judgment or record beyond what was intended." Syl. pt. 3, Johnson v. Nedeff, 192 W.Va. 260, 452 S.E.2d 63 (1994).

Gene Gardner, Gardner & Cyrus, Huntington, for Appellee, Grace Huang Barber, Administratrix.

James W. St. Clair, J. Wm. St. Clair, St. Clair & Levine, Huntington, for Appellant, Rilda Sue Barber Call.

Paul J. Prunty, Huntington, for Maude Barber Estate.

THOMAS B. MILLER, Justice: ¹

This appeal from an order of the Circuit Court of Cabell County involves the distribution of assets from the Estate of Maude Barber. Mrs. Barber had two sons, Larry Barber and Charles Barber. On October 25, 1989, Larry Barber shot and killed his brother, Charles Barber, in Huntington, West Virginia. Larry was found guilty of voluntary manslaughter and was sentenced to one to five years in the penitentiary. On November 2, 1989, Maude Barber died testate, devising her property equally to her two sons. Her estate consisted of $61,400 in real property, $3,088 in personal effects, and $36,269.10 in cash.

Charles Barber is survived by his wife, Grace Huang Barber, the plaintiff below and appellee herein, and an infant son. On November 27, 1989, Grace Barber, as administratrix of Charles Barber's estate, filed a civil action against Larry Barber, seeking monetary damages for the wrongful death of her husband. Following the criminal conviction of Larry Barber, Grace Barber moved for summary judgment on the issue of liability in the wrongful death action. She was granted summary judgment on February 21, 1991, and awarded damages "in an amount equal to Larry Barber's interest in the Estate of Maude Barber." The administratrix c.t.a. of Maude Barber's estate was not made a party to the action, and the circuit court withheld distribution of Maude Barber's estate assets until Larry Barber's criminal appeal was finalized. ² Charles Barber's estate obtained and filed an abstract of judgment against Larry Barber's interest in Maude Barber's estate.

Thereafter, on July 22, 1992, Larry Barber's ex-wife, the intervenor below and one of the appellants herein, Rilda Sue Barber Call, was awarded a judgment against Larry Barber for delinquent child support in the amount of $32,204. Larry Barber failed to pay any court-ordered child support after he and Ms. Call were divorced in 1981. Ms. Call obtained a writ of execution, which was delivered to the sheriff on September 16, 1992. Ms. Call also requested and received a summons and suggestion on Maude Barber's estate, which was served upon the administrator c.t.a. on September 22, 1992. No other writ or suggestion was filed against Larry Barber's interest in his mother's estate.

The administrator of Maude Barber's estate refused to disburse the assets of the estate until a determination was made as to the priority of the two judgments against Larry Barber's interest. Grace Huang Barber, as administratrix of the Estate of Charles Barber, then moved the circuit court for an order requiring distribution pursuant to the prior court order entered in February, 1991. Rilda Sue Barber Call, the former wife of Larry Barber, as well as the Sheriff of Cabell County, who is the administrator c.t.a. of the Estate of Maude Barber, were granted leave to intervene in this action.

On December 2, 1994, the circuit court, after hearing from the various parties, reaffirmed and clarified its prior order, stating:

"The Court finds that the Order of 21 February 1991 clearly awarded one-half of Maude Barber's estate to the plaintiff as damages in the wrongful death action.... To the extent the 21 February 1991 Order does not clearly and accurately reflect the Court's ruling that the plaintiff was entitled to and therefore awarded Larry Barber's share of Maude Barber's estate, it is a clerical error and, pursuant to Rule 60(a) of the West Virginia Rules of Civil Procedure, is hereby amended nunc pro tunc [.]"

The administrator of Maude Barber's estate was ordered to distribute Larry Barber's share to Grace Huang Barber. It is from this order that the appellant, Rilda Sue Barber Call, appeals.

I.

We initially note the parties concede the judgment obtained by Grace Huang Barber, as administratrix of the Estate of Charles Barber, on February 21, 1991, by virtue of W.Va.Code, 38-3-6 (1923), is a lien on all real estate inherited by Larry Barber. ³ Because the Charles Barber Estate obtained its judgment prior to that of Rilda Sue Barber Call, it has priority over her judgment lien as to the real estate owned by Maude Barber. See Guaranty National Bank v. State Motor Sales, Inc., 150 W.Va. 521, 147 S.E.2d 495 (1966); Foley v. Ruley, 50 W.Va. 158, 40 S.E. 382 (1901).

As to the personal assets of the estate given to Larry Barber, the appellant argues the circuit court failed to recognize that her writ of execution and suggestion on her judgment gave her a priority lien on the distribution of such assets from Maude Barber's estate. She contends the circuit court, in its February, 1991 order, gave Grace Huang Barber a judgment equal to Larry Barber's interest in his mother's estate, but she did nothing further to establish a lien on the judgment as against this personal property. We agree and find the actions undertaken by Rilda Sue Barber Call were correct steps to perfect the proper liens on the judgment obtained for back child support.

Ms. Call began to perfect her judgment lien against Larry Barber's interest in the personal property by delivering to the sheriff a writ of execution on September 15, 1992. The judgment obtained was for money owed for back child support. Where a judgment is obtained for money owed under W.Va.Code, 38-4-5, the execution issued on it is known as a writ of fieri facias. ⁴ Under W.Va.Code, 38-4-8, this became a lien upon the personal property, or the estate or interest therein, owned by the judgment debtor at the time the writ was delivered to the sheriff. ⁵

Moreover, Ms. Call caused a suggestion to be issued on the Estate of Maude Barber since there had been no distribution of the personal property. Under W.Va.Code, 38-5-10, a suggestion is available to a judgment creditor where some person is indebted or liable to the judgment debtor or has in his possession or under his control personal property belonging to the judgment debtor. ⁶ It is clear from the record and the foregoing discussion that Grace Huang Barber did not follow these statutory procedures to perfect her judgment against the personal property of Larry Barber held in the Estate of Maude Barber. Consequently, Ms. Call had the only lien against the personal property.

II.

The circuit court directed that Larry Barber's share of the personal property be given to the Grace Huang Barber by making the language in the December 2, 1994 order operate nunc pro tunc to the February 21, 1991 order. ⁷ The Court reasoned this was done because there was a clerical error made in the February, 1991, order, which was being corrected under Rule 60(a) of the W.Va.Rules of Civil Procedure. ⁸

We address first the nunc pro tunc aspect of the December 2, 1994, order. In Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993), we outlined the requisites for a nunc pro tunc order in the context of a divorce case. There, the original order awarded custody of the child to the mother, along with child support. A subsequent order was entered in December, 1977, granting custody of the child to the father, but there was no mention made of child support. Thereafter, by mutual agreement, the mother was given custody, but no order was entered approving this change in custody. The ex-husband refused to pay child support, and the mother then filed for child support during the period she had the child. The father requested that a nunc pro tunc order be entered correcting the December, 1977, order to state that child support by the father be terminated. In holding that the circuit court was correct in refusing to enter a nunc pro tunc order, we said:

"Furthermore, in syllabus point 3 of State ex rel. Palumbo v. County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966), we stated '[a] nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby.' In the case before us, there was no memorandum on the records which indicated that child support was to be addressed in the December,...