Boarman v. Boarman, No. 28855.

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW, Chief Justice.
Citation556 S.E.2d 800,210 W.Va. 155
PartiesGeorgia Lee BOARMAN, Plaintiff Below, Gilbert Wilkes, III, Appellee, v. Raymond T. BOARMAN, Defendant Below, Appellant.
Docket NumberNo. 28855.
Decision Date21 November 2001

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.


556 S.E.2d 801
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.

556 S.E.2d 802
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

556 S.E.2d 803
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).

556 S.E.2d 804
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....

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6 practice notes
  • Strahin v. Sullivan, No. 33091.
    • United States
    • Supreme Court of West Virginia
    • 21 Febrero 2007
    ...be validly assigned.' Syl. pt. 2, Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935)." Syllabus Point 3, Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800 9. In order for an insured or an assignee of an insured to recover the amount of a verdict in excess of the applicable insuran......
  • Johnson ex rel. Estate of Johnson v. Acceptance, No. CIV.A.3:01 CV 82.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 19 Septiembre 2003
    ...the West Virginia Supreme Court of Appeals would find that the assignment from BHA to plaintiff is permissible. In Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800, 802 (2001), the trial court ordered an award of attorney's fees to Mrs. Boarman as the result of her divorce action. Mrs. Boa......
  • Painter v. Coleman, No. 30255.
    • United States
    • Supreme Court of West Virginia
    • 7 Junio 2002
    ...of the State of Virginia, except for those portions specifically changed by our Legislature or Constitution."7 Boarman v. Boarman, 210 W.Va. 155, 159, n. 4, 556 S.E.2d 800, 804, n. 4 (2001); accord Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (holding that "......
  • Midwest Renewable Energy, LLC v. Am. Eng'g Testing, Inc., No. S-16-122.
    • United States
    • Supreme Court of Nebraska
    • 17 Marzo 2017
    ...Black's Law Dictionary 294 (10th ed. 2014).39 State v. Holt County, 89 Neb. 445, 131 N.W. 960 (1911). See, also, Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800 (2001) ; 46 Am. Jur. 2d Judgments § 431 (2006). Cf. Neb. Rev. Stat. §§ 25-302 to 25-304 (Reissue 2016).40 Krohn v. Gardner, 248 ......
  • Request a trial to view additional results
6 cases
  • Strahin v. Sullivan, No. 33091.
    • United States
    • Supreme Court of West Virginia
    • 21 Febrero 2007
    ...be validly assigned.' Syl. pt. 2, Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935)." Syllabus Point 3, Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800 9. In order for an insured or an assignee of an insured to recover the amount of a verdict in excess of the applicable insuran......
  • Johnson ex rel. Estate of Johnson v. Acceptance, No. CIV.A.3:01 CV 82.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 19 Septiembre 2003
    ...the West Virginia Supreme Court of Appeals would find that the assignment from BHA to plaintiff is permissible. In Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800, 802 (2001), the trial court ordered an award of attorney's fees to Mrs. Boarman as the result of her divorce action. Mrs. Boa......
  • Painter v. Coleman, No. 30255.
    • United States
    • Supreme Court of West Virginia
    • 7 Junio 2002
    ...of the State of Virginia, except for those portions specifically changed by our Legislature or Constitution."7 Boarman v. Boarman, 210 W.Va. 155, 159, n. 4, 556 S.E.2d 800, 804, n. 4 (2001); accord Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (holding that "......
  • Midwest Renewable Energy, LLC v. Am. Eng'g Testing, Inc., No. S-16-122.
    • United States
    • Supreme Court of Nebraska
    • 17 Marzo 2017
    ...Black's Law Dictionary 294 (10th ed. 2014).39 State v. Holt County, 89 Neb. 445, 131 N.W. 960 (1911). See, also, Boarman v. Boarman, 210 W.Va. 155, 556 S.E.2d 800 (2001) ; 46 Am. Jur. 2d Judgments § 431 (2006). Cf. Neb. Rev. Stat. §§ 25-302 to 25-304 (Reissue 2016).40 Krohn v. Gardner, 248 ......
  • Request a trial to view additional results

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