Blevins v. Shelton

• Decision Date: 05 July 1989
• Docket Number: No. 18408,18408
• Citation: 181 W.Va. 544,383 S.E.2d 509
• Parties: Kenneth BLEVINS v. Carol Sue Blevins SHELTON.
• Court: West Virginia Supreme Court

Page 509

383 S.E.2d 509

181 W.Va. 544

Kenneth BLEVINS v. Carol Sue Blevins SHELTON.

No. 18408.

Supreme Court of Appeals of West Virginia.

July 5, 1989.

Syllabus by the Court

1. "A trial court in the exercise of its sound discretion under the provisions of W.Va.Code 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children." Syl. pt. 2, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977), overruled on another point, Patterson v. Patterson, 167 W.Va. 1, 5 n. 1, 277 S.E.2d 709, 712 n. 1 (1981); Patterson overruled on another point, syl. pt. 6, LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983), and Patterson overruled on another point, Stillings v. Stillings, 167 W.Va. 796, 800 n. 2, 280 S.E.2d 689, 691 n. 2 (1981).

2. "A circuit court lacks jurisdiction under W.Va.Code, 48-2-15(e) [1986] to modify a divorce decree when the modification proceeding does not involve alimony, child support or child custody." Syl. pt. 2, Segal v. Beard, 181 W.Va. 92, 380 S.E.2d 444 (1989).

3. A circuit court lacks jurisdiction under W.Va.Code, 48-2-15(e), as amended, to modify a divorce decree by awarding rent, retroactively or prospectively, to a former spouse who is a co-owner of the marital home which is occupied under the divorce decree by the other former spouse and one or more of their minor children, when the rent is sought solely because a new spouse is also residing in the marital home.

Sidney H. Bell, Welch, for Kenneth Blevins.

Abishi C. Cunningham, Welch, for Carol Sue Blevins.

McHUGH, Justice:

This appeal presents a narrow question of first impression for this Court to decide, specifically, whether a circuit court has the subject matter jurisdiction under the divorce statutes to modify a divorce decree by awarding rent to a former spouse who is a co-owner of the marital home which is occupied under the divorce decree by the other former spouse and one or more of their minor children, when the rent is sought solely because a new spouse is also residing in the marital home. Disagreeing with the circuit court's affirmative ruling, we reverse.

I

In April, 1983, the appellant/plaintiff (husband) was granted a divorce from the appellee/defendant (wife) on the ground of adultery and was awarded permanent legal custody of the three minor children. The divorce action had been brought in March, 1983. The appellant and the children were granted exclusive possession of the marital home. The divorce decree did not state that the exclusive possession of the marital home was to terminate upon the appellant's remarriage. The marital home had been built, with the help of his relatives, by the appellant, on land given by his parents to the appellant and the appellee as tenants in common. The appellee, who at all relevant times was solely a homemaker, had helped some with the home construction, by painting, wallpapering, etc.

The appellee was denied alimony based upon the finding of adultery. ¹ Although served with process in the divorce case, the appellee did not answer or appear.

Over two years later the appellee, pursuant to W.Va.Code, 37-4-3 [1957], sought a partition sale of the former marital home, still owned by her and the appellant. Before a ruling was obtained, the appellant petitioned for an amendment of the divorce decree solely to clarify that he, the appellant, was to have possession of the former marital home only until such time as the youngest minor child reaches the age of eighteen years or otherwise becomes emancipated. Such limiting language had been omitted inadvertently from the divorce decree. Only one of the three children is a minor at the time of this appeal, and she is presently fifteen years of age.

The appellee's answer to the appellant's petition for amendment of the divorce decree alleged that the appellant had promised to purchase the appellee's undivided one-half interest in the former marital home and to make a fair and equitable distribution of the personal property, including household goods and appliances, in exchange for the appellee's promise not to contest the divorce action. ² Alleging in her answer that the appellant had fraudulently breached his promise in this regard, the appellee asked that the divorce case be reopened and that the divorce decree be modified; that the appellant be required to pay unto the appellee a fair price for her interest in the former marital home; and that the appellee be awarded her equitable share of the marital personal property.

After an evidentiary hearing the Circuit Court of McDowell County ("the trial court"), in October, 1986, denied the appellee's request for partition of the realty, until such time that the youngest child reaches eighteen years of age, marries or otherwise becomes emancipated; awarded to the appellee $100 per month rent prospectively because the appellant's current wife is living in the former marital home of the appellant and the appellee, still owned by both of them; awarded rent at $100.00 per month, on the same basis, retroactively for the thirty-two months during which the appellant's current wife had by that time lived in the former marital home of the appellant and the appellee, for a total of $3,200.00, to be paid within one year of that order (which would be about $266.67 per month); and scheduled a hearing on the equitable distribution of the marital personal property.

A hearing on equitable distribution of the marital personal property was never conducted, for the appellant moved to set aside the October, 1986 order insofar as it granted the retroactive and prospective rent and equitable distribution rights to the appellee. The appellant asserted that equitable distribution, based upon homemaker services, was not available here, as this divorce case was filed prior to this Court's decision in LaRue v. LaRue, on May 25, 1983, and no appeal preserving the issue was then pending in this Court. See syl. pt. 14, LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983). The appellant also asserted that the retroactive and prospective award of rent was beyond the power of the court to award and ignores the valuable homemaker services provided by the appellant's current wife to the children. Finally, the appellant argued that the court's order ignored the substantially inequitable conduct (adultery) of the appellee upon which the divorce was granted to the appellant, which conduct should have operated in this case to bar her of any equitable interests in the former marital property.

At a subsequent evidentiary hearing on the appellant's motion to set aside the October, 1986 order, the evidence indicated that the only substantial change in circumstances from when the original divorce decree was entered was that the appellant's income had been reduced from that of a working coal miner to that of a totally disabled workers' compensation recipient ($1,170.00 per month). ³ The appellant testified that he could not afford to pay any amount for rent to the appellee, as he had only $20 a month above necessities.

In July, 1987, the trial court set aside that part of its October, 1986 order pertaining to equitable distribution based upon homemaker services because syllabus point 14 of LaRue precludes retroactive application of such principle. ⁴ The trial court refused to set aside, however, the portions of its previous order awarding retroactive and prospective rent to the appellee. This appeal concerns this issue of rent.

II

In syllabus point 2 of Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977), overruled on another point, Patterson v. Patterson, 167 W.Va. 1, 5 n. 1, 277 S.E.2d 709, 712 n. 1 (1981), ⁵ the Court held: "A trial court in the exercise of its sound discretion under the provisions of W.Va.Code 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children." Accord, Fischer v. Fischer, 175 W.Va. 753, 755, 338 S.E.2d 233, 235 (1985); syl. pt. 4, Rose v. Rose, 176 W.Va. 18, 340 S.E.2d 176 (1985); Travis v. Travis, 172 W.Va. 372, 374, 305 S.E.2d 329, 331 (1983); Stillings v. Stillings, 167 W.Va. 796, 797, 280 S.E.2d 689, 690 (1981). ⁶

In Stillings, we observed that one of the primary purposes of the exclusive possession rule is an economic reason, specifically, to enable the divorce court to utilize the family home property as the living situs for the spouse who has obtained custody of the minor children, thereby minimizing the monetary payments necessary to maintain the existing standard of shelter for the spouse and the minor children. 167 W.Va. at 801, 280 S.E.2d at 692. In Fischer, a more important purpose for the exclusive possession rule, a psychological reason, was set forth: it is in the best interest of the minor children to avoid the traumatic effects of displacing them from their home. 175 W.Va. at 755, 338 S.E.2d at 235. This point has also been made elsewhere: "[F]amily home awards are meant to benefit minor children by providing them with a stable home environment[.]" In re Marriage of Katz, 201 Cal.App.3d 1029, 1037, 247 Cal.Rptr. 562, 566 (1988). See also Martin v. Martin, 507 So.2d 1136, 1138 (Fla.Dist.Ct.App.1987) (per curiam). Therefore, a partition sale of the marital home will ordinarily be denied in this context because it would frustrate the purposes of the exclusive possession award. Stillings, 167 W.Va. at 798 n. 1, 280 S.E.2d at 690 n. 1; Murredu, 160 W.Va. at 616, 236 S.E.2d at 457.

Similarly, an award of rent from the possessory spouse to the nonpossessory spouse would frustrate the purposes of the exclusive possession award. It would reduce the financial resources available to the possessory spouse for the support of the minor children. Nothing in the divorce statutes authorizes such an award of rent in a modification proceeding, when, as here, it is sought solely as an exaction from the possessory spouse's current spouse who is also residing in the marital...