Boarman v. Boarman

• Decision Date: 21 November 2001
• Docket Number: No. 28855.,28855.
• Citation: 556 S.E.2d 800,210 W.Va. 155
• Court: West Virginia Supreme Court
• Parties: Georgia Lee BOARMAN, Plaintiff Below, Gilbert Wilkes, III, Appellee, v. Raymond T. BOARMAN, Defendant Below, Appellant.

556 S.E.2d 800

210 W.Va. 155

Georgia Lee BOARMAN, Plaintiff Below, Gilbert Wilkes, III, Appellee, v. Raymond T. BOARMAN, Defendant Below, Appellant.

No. 28855.

Supreme Court of Appeals of West Virginia.

Submitted September 5, 2001.

Decided November 21, 2001.

David J. Joel, Esq., Martinsburg, for Georgia Lee Boarman.

Kirk H. Bottner, Esq., Charles Town, for Appellee, Gilbert Wilkes, III.

Robert D. Aitcheson, Esq., Charles Town, for Appellant, Raymond T. Boarman. McGRAW, Chief Justice.

Raymond T. Boarman appeals a decision of the lower court that required him to pay a judgment to his ex-wife's former counsel or face incarceration for contempt. The court had previously awarded attorney fees to appellee Georgia Lee Boarman, which were reduced to a judgment. She later assigned this judgment to her former attorney, appellee George Wilkes. After unsuccessful efforts to reach an agreement, appellee Wilkes moved the court to hold Mr. Boarman in contempt. The lower court found Mr. Boarman to be in contempt, but then suspended its order to allow this appeal. Because we find that a judgment for attorney fees is assignable, but that relief by way of contempt is not assignable to a private third party, we affirm in part, and reverse in part.

I. BACKGROUND

After several years of marriage and several children, Georgia Lee Boarman filed for divorce from her husband Raymond T. Boarman on January 29, 1990, sparking a long and acrimonious proceeding, the embers of which still smoulder. This instant appeal is the third appeal concerning the Boarmans' divorce.¹ This appeal concerns actions taken by the lower court with regard to an award of attorney fees granted to Mrs. Boarman.

Appellee Gilbert Wilkes, III, is the attorney who represented Mrs. Boarman in the early years of this divorce dispute, and represented her in the first appeal before this Court. By order dated August 5, 1994, the lower court made an award of attorney fees to Mrs. Boarman in the amount of $8,766.60. On August 11, 1994, the court issued an abstract of judgment, which Mrs. Boarman or her counsel recorded the same day. It is this sum, plus accrued interest, that forms the basis for the instant dispute.

The divorce action outlasted the career of Mr. Wilkes, who retired from the practice of law in 1996, and Mrs. Boarman retained new counsel, Attorney David Joel. After several proceedings, Mr. Joel also moved for an award of attorney fees for the work he had performed on behalf of Mrs. Boarman, but the court denied Mr. Joel's motion. Finally, by court order dated June 24, 1997, the Boarmans' divorce became final.

The 1997 order contained, inter alia, a requirement that Mrs. Boarman convey her interest in the marital farm, and a provision concerning attorney fees, which stated: "7. The parties agree that each will pay their own attorney's fees in this matter." The order made no mention of the 1994 award, and subsequent judgment, granted in favor of Mrs. Boarman.

The Boarmans' harmony was short-lived, because on October 7, 1998, counsel for Mrs. Boarman attempted to attach Mr. Boarman's wages from his employer by means of a Suggestee Execution issued by the circuit court. This proved unsuccessful, as Mr. Boarman had retired. Subsequently, Mr. Boarman moved the court to hold Mrs. Boarman in contempt for failing to convey her interest in the family farm.²

By August of 1999, neither Mrs. Boarman nor Mr. Wilkes had received any of the $8,766.60 awarded in the 1994 order. Mrs. Boarman had moved to New York and apparently had little ability to pay her former attorney. On August 6, 2000, in an effort to recover the sums owed to him, Mr. Wilkes took an assignment from Mrs. Boarman of the 1994 judgment. Mr. Wilkes attempted to recover the judgment assigned to him by filing a Petition for Rule to Show Cause against Mr. Boarman, alleging Mr. Boarman was in contempt of the 1994 order awarding attorney fees. After some delay, the court held a hearing on the matter on February 16, 2000.

By order dated May 5, 2000, the court found that the assignment to Mr. Wilkes was valid and that the 1997 final order did not supersede or invalidate the 1994 order that awarded the fees in question. The court went on to conclude that Mr. Boarman would be found in civil contempt unless he promptly paid the 1994 judgment, plus interest, or made other payment arrangements satisfactory to Mr. Wilkes. Mr. Boarman did not pay the sums ordered, nor were the parties able to reach a payment agreement satisfactory to Mr. Wilkes. However, before Mr. Boarman was to be incarcerated, the judge suspended his ruling, allowing Mr. Boarman time to bring this appeal.

II. STANDARD OF REVIEW

When reviewing an appeal of a civil contempt order, we must look at the legal conclusions drawn by the lower court, as well as the court's findings regarding the factual situation giving rise to the allegation of contempt:

In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Syl. pt 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996). Bearing this standard in mind, we turn to the matter before us.

III. DISCUSSION

A. Validity of the Judgment and Assignment

Neither party contests the basic presumption that a valid judgment may be assigned to a third person. Our law supports this contention:

An "assignment" of a right is a manifestation of the assignor's intention to transfer such right, by virtue of which transfer the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance. Restatement (Second) of Contracts § 317(1) (1979). Unless required by statute or by contract, the assignor of a right may make an assignment by manifestation of intention to transfer, without any particular formality. Restatement (Second) of Contracts § 324 comment a (1979). This Court has recognized these concepts: "No formal words are necessary to make an assignment of a chose in action. Anything showing an intent to assign on the one side, and an intent to receive on the other, will operate as an assignment. It [at common law] need not be in writing." Syl. pt. 5, Bentley v. Standard Fire Insurance Co., 40 W.Va. 729, 23 S.E. 584 (1895). An "[a]ssignment of a chose is a sale like a sale of a chattel. There must be an intent to divest the seller of all right and title, and invest it in the assignee." Id. 40 W.Va. at 741, 23 S.E. at 587.

Smith v. Buege, 182 W.Va. 204, 210-11, 387 S.E.2d 109, 115-16 (1989) (alteration in original).

It is a well established principle that judgments are akin to property, and as such, may be assigned to another party: "An assignment may be made of a judgment, even if the claim which is later reduced to a money judgment was unassignable, because a court judgment is considered property which may be transferred, like other property, even prior to payment of the judgment." 46 Am Jur 2d, Judgements § 477 (footnotes omitted).

Our own case law reflects a recognition that judgments may be assigned: "The assignor of a judgment or decree by the assignment deprives himself of all interest in and control over it, and transfers to the assignee the ownership of the judgment and all remedies thereunder." Syl. pt. 1, Hines v. Fulton, 104 W.Va. 561, 140 S.E. 537 (1927). This Court has also stated, more succinctly: "A chose in action may be validly assigned." Syl. pt. 2, Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935).³ Thus it is clear to us that a judgment for attorney fees may be assigned, and that Mrs. Boarman had the ability to make a valid assignment of the judgment for attorney fees from the 1994 order.

However, Mr. Boarman claims that Mrs. Boarman could not have made a valid assignment because she had "traded away" her right to those fees, before she made the assignment of the judgment to Mr. Wilkes in 1999. Specifically, Mr. Boarman argues that the language of the 1997 final order, quoted supra, shows that Mrs. Boarman had agreed to pay all her attorney fees, including those fees awarded in the 1994 order. Therefore, his argument goes, Mrs. Boarman had no right left to assign to Mr. Wilkes when she made the assignment in 1999.

The lower court examined this matter, holding a hearing on February 16, 2000. After listening to arguments from both sides, the lower court made a factual determination that the final order of 1997 did not incorporate the judgment of attorney fees granted in 1994. As we noted, we accord great deference to the factual findings of a trial judge, whose "underlying factual findings are reviewed under a clearly erroneous standard" Syl. pt 1, in part, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

The lower court considered that the 1994 order awarding attorney fees had been reduced to a judgment and recorded, and that the 1997 order had been produced after lengthy legal proceedings involving a completely different set of attorneys. We do not feel the lower court was clearly erroneous when it found that the June 24, 1997 final order did not supersede or modify the August 5, 1994 order awarding attorney fees to Mrs. Boarman, and accordingly, we affirm that aspect of the lower court's ruling.

B. Contempt

Mr. Boarman goes on to argue that, even if Mrs. Boarman had the ability to assign a valid judgment stemming from the 1994 order, she still had no ability to convey to Mr. Wilkes any right she might have had to hold Mr. Boarman in contempt for failing to pay. In other words, he argues, a litigant may not assign the right of contempt to a third party. Therefore, Mr. Boarman claims that Mr. Wilkes is in the same position as any ordinary creditor, and any...