Cross v. Cross

• Decision Date: 25 July 1991
• Docket Number: No. 19409,19409
• Citation: 407 S.E.2d 720,185 W.Va. 414
• Parties: Gary CROSS, Plaintiff Below, Appellee, v. Trinichia Lee CROSS, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 720

407 S.E.2d 720

185 W.Va. 414

Gary CROSS, Plaintiff Below, Appellee, v. Trinichia Lee CROSS, Defendant Below, Appellant.

No. 19409.

Supreme Court of Appeals of West Virginia.

Submitted May 15, 1991.

Decided July 12, 1991.

Rehearing Denied July 25, 1991.

Syllabus by the Court

1. " 'It is well settled as a general rule that the question of continuance is in the sound discretion of the trial court, which will not be reviewed by the appellate court, except in case it clearly appears that such discretion has been abused.' Syl. pt. 1, Levy v. Scottish Union & National Ins. Co., 58 W.Va. 546, 52 S.E. 449 (1905)." Syl. pt. 2, Nutter v. Maynard, 183 W.Va. 247, 395 S.E.2d 491 (1990).

2. "When a court is required to divide vested pension rights that have not yet matured as an incident to the equitable distribution of marital property at divorce, the court should be guided in the selection of a method of division by the desirability of disentangling the parties from one another as quickly and cleanly as possible. Consequently, a court should look to the following methods of dividing pension rights in this descending order of preference unless peculiar facts and circumstances dictate otherwise: (1) lump sum payment through a cash settlement or offset from other available material assets; (2) payment over time of the present value of the pension rights at the time of divorce to the non-working spouse; (3) a court order requiring that the non-working spouse share in the benefits on a proportional basis when and if they mature." Syl. pt. 5, Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987).

3. "When the issue in a divorce proceeding is the equitable distribution of marital property, both parties have the burden of presenting competent evidence to the trial court concerning the value of such property." Syl. pt. 3, Roig v. Roig, 178 W.Va. 781, 364 S.E.2d 794 (1987).

L. David Ward, Elizabeth, for appellant.

Larry L. Skeen, Ripley, for appellee.

PER CURIAM:

This case is before us again on appeal by the appellant, Trinichia Lee Cross, from an order of the Circuit Court of Jackson County denying the appellant's request for a continuance, and determining the appellant's interest in her former spouse's pension benefits in accordance with the directives of this Court in Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987). ¹ The appellant contends that the circuit court abused its discretion in denying her motion for a continuance, and that it erred in accepting the sum of $16,422.38 as the present value of the pension benefits of the appellee, Gary Lynn Cross. After reviewing the record before us, we conclude that the order of the circuit court should be affirmed.

The parties were divorced by final order of the circuit court rendered on November 7, 1986. The divorce decree was subsequently affirmed by this Court in Cross v. Cross, supra, except with respect to the equitable distribution of the appellee's state teachers' pension account.

Following this Court's ruling in Cross v. Cross, the appellee filed a motion on February 26, 1988, requesting that the circuit court determine the amount due to the appellant as an equitable distribution of the appellee's pension benefits. The parties appeared at a hearing before the circuit court on March 7, 1988, where the appellant requested a continuance of the case so that she could employ counsel to represent her. Over the objection of the appellee, the circuit court granted the appellant's motion and continued the case for an evidentiary hearing to be held on March 18, 1988.

The appellant subsequently retained counsel to represent her in this matter, who then requested that the circuit court grant him additional time in which to prepare for the case. By order entered on March 18, 1988, the circuit court granted the request of the appellant's counsel. However, one month later, appellant's counsel moved the circuit court to be dismissed from his representation of the appellant. The circuit court dismissed the attorney as counsel for the appellant and continued the case for an evidentiary hearing on June 6, 1988. The case was then continued again by the circuit court, on its own motion, until October 3, 1988.

The case came on for hearing before the circuit court on October 3, 1988, however, the appellant did not appear either in person or by counsel. The circuit court found that there was a lack of proof that the appellant had been given notice of the hearing, and ordered that the case be rescheduled for November 4, 1988. The circuit court further ordered the sheriff of Jackson County to deliver a certified copy of the order rescheduling the hearing to the appellant.

The hearing was held as scheduled on November 4, 1988, although the appellant appeared without counsel. The appellant represented to the circuit court that she had employed an attorney to represent her. The court attempted to contact the attorney to confirm his representation of the appellant but was unable to reach him. The circuit court then denied the appellant's request for a continuance. The circuit court went on to accept into evidence a document prepared by the West Virginia Teachers' Retirement System which set out the appellee's benefits, as of the date of the parties' separation and initiation of divorce proceedings, indicating a balance of $16,422.38. The circuit court provided the appellant an opportunity to refute the appellee's documentation but she declined to present any evidence to the contrary. The court then ordered that the appellant was entitled to one-half of the appellee's pension at the time the parties separated and initiated the divorce proceedings which amounted to $8,211.19. However, since a judgment had previously been granted to the appellee against the appellant in the sum of $1,290.00, based upon the appellant's refusal to sign joint federal and state income tax returns which cost the appellee an additional $1,290.00 in taxes, the court granted the appellee a credit against the appellant's share of the retirement account in that amount. This matter is now before this Court upon appeal of that order. ²

I

The appellant first contends that the circuit court abused its discretion when it denied her motion for a continuance at the hearing held on November 4, 1988. The appellee maintains that the circuit court did not abuse its discretion in denying the appellant's motion for another continuance since several continuances had previously been granted to her and she had failed during that period to retain counsel.

The decision of this Court remanding this case for a hearing on the issue of the appellee's retirement account was issued on November 17, 1987. A hearing on that issue was then scheduled before the circuit court on March 7, 1988, and notice was served on the appellant and her counsel, who notified appellee's attorney, by later dated February 24, 1988, that he no longer represented the appellant. The appellant appeared at the hearing held on March 7, 1988, without counsel and the case was continued at her request until March 18, 1988. ³

The appellant appeared with counsel at the hearing held on March 18, 1988. However, the appellant's counsel requested a continuance so that he could familiarize himself with the appellant's case. The circuit court therefore continued the matter until April 18, 1988.

At the hearing held on April 18, 1988, counsel on behalf of the appellant requested permission to withdraw as her attorney. The circuit court granted the motion and continued the case until June 6, 1988. ⁴

On its own motion, the circuit court continued this case until October 3, 1988. The appellant, however, did not appear at this hearing. Since there was no document in the file to confirm whether the appellant had notice of the hearing, the circuit court continued the case until November 4, 1988, and directed the sheriff of Jackson County to serve a copy of the order upon the appellant.

The appellant appeared at the hearing on November 4, 1988, without counsel. The appellant maintained that she had retained an attorney to represent her, but the circuit court's attempts to contact that attorney were unsuccessful. ⁵ The circuit court then denied the appellant's motion for another continuance.

This Court has traditionally recognized that a motion for a continuance is addressed to the sound discretion of the trial court. Templeton v. Templeton, 179 W.Va. 597, 371 S.E.2d 175 (1988); Thomas v. Beckley Music & Electric Co., 146 W.Va. 764, 123 S.E.2d 73 (1961); Staples v. Left Fork Fuel Co., 138 W.Va. 819, 77 S.E.2d 872 (1953); Powell v. Sayres, 134 W.Va. 653, 60 S.E.2d 740 (1950); Mullens v. Frazer, 134 W.Va. 409, 59 S.E.2d 694 (1950); Hutchinson v. Montgomery Memorial Park Corporation, 128 W.Va. 419, 36 S.E.2d 889 (1945). We recently reaffirmed this general rule in syllabus point 2 of Nutter v. Maynard, 183 W.Va. 247, 395 S.E.2d 491 (1990), where we stated:

'It is well settled as a general rule that the question of continuance is in the sound discretion of the trial court, which will not be reviewed by the appellate court, except in case it clearly appears that such discretion has been abused.' Syl. pt. 1, Levy v. Scottish Union & National Ins. Co., 58 W.Va. 546, 52 S.E. 449 (1905).

Clearly, the circuit court provided the appellant several opportunities to retain counsel to represent her in this case. The hearing to determine the appellant's share of the appellee's pension benefits was continued on several occasions over a period of nearly a year. Thus, on the basis of the record before us, we cannot conclude that the circuit court abused its discretion in denying the appellant's motion for a continuance.

II

As her second assignment of error, the appellant asserts that the circuit court erred in accepting the sum of $16,422.38 as the present value ⁶ of the appellee's pension benefits. The appellee maintains that the circuit court did not err by accepting the amount...