Durnell v. Durnell
| Decision Date | 11 July 1995 |
| Docket Number | No. 22658,22658 |
| Citation | 194 W.Va. 464,460 S.E.2d 710 |
| Court | West Virginia Supreme Court |
| Parties | Catherine Ann DURNELL, Plaintiff Below, Appellee, v. Thomas A. DURNELL, Defendant Below, Appellant. |
Syllabus by the Court
1. Syllabus point 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).
2. "A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard." Syllabus point 1, Stephen L.H. v. Sherry L.H., --- W.Va. ----, --- S.E.2d ---- (1995).
3. "For purposes of equitable distribution, W.Va.Code, 48-2-32(d)(1) (1984), requires that a determination be made of the net value of the marital property of the parties." Syllabus point 2, Tankersley v. Tankersley, 182 W.Va. 627, 390 S.E.2d 826 (1990).
Richard A. Bush, Bush & Trippel, Parkersburg, for appellee.
Robin Jean Davis, Segal and Davis, L.C., Charleston, for appellant.
In this appeal from a divorce judgment, Thomas A. Durnell (appellant) claims that the Circuit Court of Wood County erred in awarding his former wife, Catherine Ann Durnell (appellee), rehabilitative alimony, in view of the fact that she was guilty of fault which contributed to the breakup of the parties' marriage. He also claims that the amount of rehabilitative alimony was unreasonably high, given the relative financial positions of the parties, and that the trial court erred in failing to reduce the amount of alimony after he suffered a sharp reduction in his income. He lastly claims that the circuit court erred in valuing the property subject to marital distribution. After reviewing the issues raised and the record presented, this Court cannot conclude that the trial court's alimony ruling was erroneous. On the other hand, the Court believes that there were errors in the valuation of property for marital distribution purposes. The judgment of the circuit court is, therefore, affirmed insofar as it relates to alimony, and it is partially reversed in certain particulars with regard to the marital distribution award.
Catherine Ann Durnell, who had been married to Thomas A. Durnell since July 9, 1976, instituted this divorce proceeding on August 27, 1991. In her complaint, she alleged that irreconcilable differences had arisen between the parties and that Thomas A. Durnell had engaged in cruel and inhuman conduct which had rendered further cohabitation unendurable.
After the institution of the proceeding, the parties entered into, and the court accepted, an agreed pendente lite order, whereby Thomas A. Durnell agreed to pay Catherine Ann Durnell temporary child support and alimony. The order also made certain other temporary arrangements and provided: "[n]either party shall alienate or encumber any marital property without the written consent of the other party...."
In the months following the filing of the complaint, the parties entered into a number of stipulations, and extensive contested hearings were conducted by Ralph E. Troisi, a special commissioner. The hearings culminated in recommendations by Special Commissioner Troisi which were largely adopted by the circuit court after considering various exceptions interposed by the parties.
In his recommendations, the special commissioner found that even though Catherine Ann Durnell admitted to engaging in an extramarital affair, that action was condoned by the parties' resumption of marital cohabitation. He also found that the primary cause of the disintegration of the marriage was the fact that irreconcilable differences had arisen between the parties. The special commissioner recommended that Catherine Ann Durnell receive child support of $6,000.00 per month and rehabilitative alimony of $10,000.00 per month for ten years. The parties' marital property was valued at over $1,000,000.00, and Catherine Ann Durnell was found to be entitled to $410,180.86 from Thomas A. Durnell after offsets were made for various payments and distributions of assets already made. It was provided that this amount could be paid in installments.
After the submission of the special commissioner's report to the circuit court, Thomas A. Durnell, who had previously been privately engaged in the practice of medicine, closed his practice and joined a medical group as an employee. As a result, he suffered a substantial decrease in income. He, therefore, "moved" that the court award less alimony than recommended by the special commissioner. This "motion" was initially made as a "Motion for Modification of Agreed Pendente Lite Order and/or Final Order" filed on January 24, 1994. On February 11, 1994, a separate "Motion for Modification of Agreed Pendente Lite Order and/or Final Order Pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure" was filed. He also made various claims about the improper valuation of his former medical practice by the special commissioner.
Catherine Ann Durnell also petitioned the court to deviate from the special commissioner's recommended decision. She claimed that Thomas A. Durnell had wrongfully converted a securities account, referred to as the "Legg-Mason Securities Account," in violation of the non-alienation provision in the agreed pendente lite order. She prayed that the court award her a sum to account for what her share of the account would have been worth if it had not been converted.
As previously indicated, the circuit court largely adopted the special commissioner's recommended decision. The court refused to afford Thomas A. Durnell the relief sought in his motions and essentially affirmed the special commissioner's recommendations on alimony and findings on the value of the medical practice. The court did, however, grant Catherine Ann Durnell the sum which she sought for Thomas A. Durnell's conversion of the "Legg-Mason Securities Account."
On appeal, Thomas A. Durnell first claims that the trial court erred in awarding his wife any alimony whatsoever. He claims that the evidence clearly shows that she was guilty of fault which should bar an award of alimony. The claim of fault is based on the fact that Catherine Ann Durnell admitted having an extramarital affair and the further fact that she engaged in conduct which disrupted his medical practice and caused him emotional distress.
The evidence adduced before the special commissioner included an admission by Catherine Ann Durnell that she had an extramarital affair in 1989. Although this testimony was not directly corroborated, there was some indication that she had discussed the affair with several persons. After the affair, the parties reconciled. Catherine Ann Durnell also admitted that she resumed the relationship in April, 1990, although this was not corroborated by the testimony of any witness.
Thomas A. Durnell claims that although the evidence of an extramarital affair could not support the award of a divorce because it was uncorroborated, it was evidence of cruelty and was fault contributing to the breakup of the parties' marriage. He claims that, in view of the fault, the trial court erred in awarding Catherine Ann Durnell alimony.
Other evidence was introduced showing that Thomas A. Durnell had a substantial medical practice and that he hired another physician, Dr. Sheila Stastney, to assist him. The evidence indicated that while Dr. Stastney was working in Thomas A. Durnell's office, Catherine Ann Durnell harassed her and ultimately forced her to leave. Thomas A. Durnell claimed that as a result of Dr. Stastney's departure, he suffered physical, mental, and emotional distress. He attempted to commit suicide twice, and his physician, Dr. Vincent J. Mazella, testified that he was working too many hours and that he could not endure the stress of the situation.
In his brief, Thomas A. Durnell argues that Catherine Ann Durnell's
Recently, in the case of Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992), this Court discussed at some length the effect of fault upon an alimony award. In that case, the Court recognized that in 1991 the West Virginia Legislature amended W.Va.Code § 48-2-15, relating to fault, and the Court, in essence, found that fault absolutely bars an alimony award in only three instances. The Court's conclusion was summarized in syllabus point 2, as follows:
W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and...
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