Caldwell v. Caldwell

• Decision Date: 10 July 1986
• Docket Number: No. 16805,16805
• Citation: 350 S.E.2d 688,177 W.Va. 61
• Court: West Virginia Supreme Court
• Parties: Lorea Gay CALDWELL v. Walter Glenn CALDWELL.

Page 688

350 S.E.2d 688

177 W.Va. 61

Lorea Gay CALDWELL v. Walter Glenn CALDWELL.

No. 16805.

Supreme Court of Appeals of

West Virginia.

July 10, 1986.

Rehearing Denied Dec. 18, 1986.

Syllabus by the Court

1. While the court in a divorce proceeding may in an interlocutory order properly determine the status of the property of the parties, their rights therein, and how the property ought to be assigned ultimately, the actual division of the property cannot be made until the final decree is granted, and an order in a divorce suit as to the disposition or restoration of property can become effective only upon entry of a final decree.

2. Upon the granting of a divorce of parties who were previously divorced and remarried, a trial court should not alter the property settlement made as a part of the first divorce, and property received by the parties as their separate property in the settlement in the first divorce should be considered their separate property upon remarriage and should be distributed as such in a divorce ending the remarriage.

Susan K. McLaughlin, Fairmont, for appellant.

Frank Mascara, Fairmont, for appellee.

BROTHERTON, Justice:

This is an appeal by Lorea Gay Caldwell from a final decree entered in a divorce proceeding by the Circuit Court of Marion County on July 19, 1985. That decree set aside a previous order respecting the distribution of the proceeds from the sale of the parties' marital home and directed that the net proceeds be divided equally between the parties. On appeal the appellant contends that the trial court erred in setting aside the prior ruling and in directing that the proceeds from the sale of the marital home be divided evenly. We disagree, and we affirm the judgment of the Circuit Court of Marion County.

On April 4, 1970, the appellant and Walter Glenn Caldwell were married. After their marriage, they purchased a marital home for approximately $60,000.00. The appellant invested $25,000.00 from property which she owned before her marriage to Walter Glenn Caldwell in the new house.

In 1977 the appellant and Walter Caldwell sold the house, previously purchased for $60,000.00, for $85,000.00. They applied the net proceeds from the sale to the purchase of another house. The other house, their second marital home, was titled in the names of the appellant, Lorea Gay Caldwell and Walter Glenn Caldwell, as joint tenants with the right of survivorship.

After the purchase of the second house the appellant and her husband began experiencing marital difficulties, and, on July 10, 1982, they executed a deed revoking the right of survivorship in the house and creating a tenancy in common without the right of survivorship. Subsequently, the parties decided to divorce and entered into a property settlement agreement which provided that in the event the marital home was sold the net proceeds from the sale were to be divided equally between the parties. The parties were divorced by decree entered on July 16, 1982.

The parties were remarried on December 29, 1983. The second marriage was also unsuccessful, and the parties again sought a divorce. A hearing was held on the second divorce petition by Judge Meredith of the Circuit Court of Marion County on August 27, 1984. On August 27 Judge Meredith ruled that the appellant had carried to the first marriage $25,000.00 in assets which she was entitled to recoup upon divorce. He further ruled that the residue of the net proceeds from the sale of the parties' marital home should be divided equally between the appellant and Walter Glenn Caldwell. In effect, Judge Meredith ruled that the marital home be sold, that the first $25,000.00 of the proceeds was the separate property of the appellant and should go directly to her, and that the balance of the proceeds was marital property which, under the principles of equitable distribution, was to be divided equally. Judge Meredith also ruled that the previous divorce decree between the parties and the previous settlement agreement to divide the proceeds of the sale of the marital home had no effect on the equities between the parties since the parties had remarried and since the contingency in the agreement, the sale of the real property, had never occurred.

A property-division order reflecting Judge Meredith's decision was prepared and signed by both parties and was entered. The order dealt only with property questions between the parties and did not address the divorce question.

After entry of the property division order, a final divorce order was prepared for entry. That order incorporated the provisions relating to the division of the property. After preparation of the final divorce order, but before its entry, Walter Glenn Caldwell hired a new lawyer who petitioned for a rehearing in the matter. A rehearing was held on September 28, 1984. At the conclusion of the rehearing Judge Meredith affirmed his previous rulings and directed that those rulings be incorporated into the final divorce decree. The attorney for the appellant prepared the final decree, but counsel for Walter Glenn Caldwell did not sign it, and it was not entered. Judge Meredith died on December 1, 1984. As a result, the final divorce decree was not entered.

After Judge Meredith's death, Walter Glenn Caldwell requested that the new circuit judge, Judge Merrifield, reconsider Judge Meredith's disposition of the case. Judge Merrifield reconsidered the matter and, by letter opinion dated May 29, 1985, rescinded Judge Meredith's order. On July 19, 1985, he entered the order from which the appellant now appeals. Essentially, the July 19, 1985, order directed that the net proceeds from the marital home be equally divided and that the appellant be denied credit for $25,000.00 in equity which she claims she carried into the marriage.

On appeal the appellant makes two assignments of error. First, she claims that Judge Merrifield's order effectively rescinded Judge Meredith's order even though there were no circumstances justifying the setting aside of that order. Secondly, she contends that the final decree, as entered by Judge Merrifield, erroneously applied the separate property doctrine of W.Va. Code § 48-2-1 et seq. in that it implicitly denied the appellant the $25,000.00 which she took into the first marriage and which was legally her separate property.

With regard to the first point, that Judge Merrifield, erred in setting aside Judge Meredith's order, the appellant argues extensively that Rule 60(b) of the Rules of Civil Procedure requires that an order not be set aside except upon a showing of mistake, newly discovered evidence, or the other factors listed in the rule. She claims that those factors were not present in her case.

West Virginia Rule 60(b) is substantially the same as Rule 60(b) of the Federal Rules of Civil Procedure, ¹ and Federal cases have been extensively used in interpreting the West Virginia Rule. See, e.g., N.C. v. W.R.C., --- W.Va. ----, 317 S.E.2d 793 (1984); Coury v. Tsapis, --- W.Va. ----, 304 S.E.2d 7 (1983). The Federal cases make a distinction between final orders and interlocutory orders and indicate that:

Interlocutory orders and judgments are not within the provisions of 60(b), but are left to the plenary power of the court that rendered them to afford such relief from them as justice requires.

7 J. Moore, Moore's Federal Practice p 60.20 (2d ed.1985); see, Laffey v. Northwest Airlines, Inc., 642 F.2d 578 (D.C.Cir.1980); Campos v. Puerto Rico Sun Oil Co., 536 F.2d 970 (1st Cir.1976); Cohn v. United States, 259 F.2d 371 (6th Cir.1958).

In the early West Virginia case of McKinney v. Kirk, 9 W.Va. 26 (1876), this Court indicated that an order was interlocutory rather than final where the order failed to adjudicate all the issues in a case. This is essentially the same principle followed today except that under Rule 54 of the Rules of Civil Procedure a trial court is authorized to make an order final by making "an express determination that there is no just reason for delay" coupled with "an express direction for the entry of judgment." Rule 54(b), West Virginia Rules of Civil Procedure; see M. Lugar & L. Silverstein, W.Va. Rules p. 399, et seq. (1960).

The Federal concept of an interlocutory order is essentially the same. Additionally, Federal law holds that an interlocutory order is generally subject to revision by the trial court:

In the absence of the "express determination" and "express direction" provided for by Rule 54(b), an adjudication of one or more but less than all of the claims in an action, or an adjudication as to fewer than all the parties, is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims, or adjudicating the rights and obligations of all the parties.

7 J. Moore, Moore's Federal Practice § 60.20 (2nd ed.1985).

The general rule relating to the authority of a trial court to revise an interlocutory order has been carried into divorce law, and it has been recognized that:

While the court in an interlocutory judgment may properly determine the status of the property of the parties, their rights therein, and how the property ought to be assigned ultimately, the actual division of the property...