Dyer v. Tsapis

• Decision Date: 28 November 1978
• Docket Number: No. 14235,14235
• Citation: 162 W.Va. 289,249 S.E.2d 509
• Parties: Kermit D. DYER v. The Hon. Callie TSAPIS, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 509

249 S.E.2d 509

162 W.Va. 289

Kermit D. DYER v. The Hon. Callie TSAPIS, Judge, etc., et al.

No. 14235.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1978.

Syllabus by the Court

Where the West Virginia divorce law, W.Va.Code, 48-2-4(a)(7) (1977) provides grounds for divorce based upon one year's voluntary separation but conditions the award of alimony in a divorce predicated on voluntary separation upon a finding of "fault," the term "fault" in that context does not mean such fault as would entitle a court to award a divorce pursuant to W.Va.Code, 48-2-4(a) (1-6, 9) (1977) but rather means substantial inequitable conduct as demonstrated by a preponderance of the evidence in the record from which the trier of fact may infer that the marriage was dissolved because of the blameworthy conduct of the party against whom the alimony is sought to be charged.

Leonard Z. Alpert, William E. Galloway, Weirton, for relator.

Donell, DeLaMater & Hagg, Thomas D. Hagg, Weirton, for respondents.

NEELY, Justice:

We issued a rule to show cause in this action in prohibition to determine whether the word "fault" in W.Va.Code, 48-2-4(a)(7) (1977) means conduct sufficient to support a fault-based divorce or simply inequitable conduct. ¹ We confine ourselves to the question whether the trial court exceeded her legitimate powers when she awarded alimony to relator's wife in a divorce proceeding based upon one year's separation after finding evidence sufficient only to demonstrate "inequitable conduct" rather than evidence sufficient to warrant entitlement to a divorce on fault grounds. ²

On February 11, 1977, relator Kermit Dyer filed an action for divorce from his wife Mary in the Circuit Court of Hancock County. The divorce, which was based on W.Va.Code, 48-2-4(a)(7) (1977), was awarded on December 21, 1977. On March 16, 1978, the court held a hearing on the issue of alimony. The court noted as a finding of fact that although the husband's misconduct could not be conclusively proven, the circumstances indicated a "strong suspicion of guilt" of adultery. The court found the wife's conduct to be blameless. The husband was found guilty of "inequitable conduct" and ordered to pay $150 per month alimony. The husband brought this action in prohibition on the grounds that no alimony can be awarded unless the party sought to be charged under W.Va.Code, 48-2-4(a)(7) (1977) has been found guilty of fault sufficient to support a fault-based divorce.

At the root of this problem is society's changing view of marriage. Many people can remember a time when divorce was rare and almost any divorce implied a social stigma. Today, however, for better or worse, divorce is more common and more socially acceptable. The law has not been insensitive to this change, as evidenced by the fact that while formerly the law of divorce, although entirely equitable, proceeded on principles similar to tort law, it has come more and more to resemble contract law, largely as a result of statutory changes. ³ Once all divorces, like all tort actions, were predicated upon a legal wrong; alimony, like tort damages, served both punitive and compensatory purposes. Now, increasingly, divorces are awarded on no-fault grounds and awards of alimony, like contract damages, increasingly emphasize restitution to the exclusion of punishment. ⁴ The law which once saw marriage as a sacrament now conceptualizes it as roughly analogous to a business partnership. ⁵ As might be expected in the midst of such change, there is tension between the old and new approaches. On the one hand there is a powerful incentive to punish a wrongdoer and an even more powerful aversion to rewarding one. On the other hand, there is an appreciation of the value of a wife's sacrifice of the opportunity to obtain skills, advancement, and retirement benefits. ⁶ In addition, a woman of advanced age is likely to experience difficulty in finding another suitable partner. Reluctantly, and possibly because of the difficulty of determining fault in the context of a complex interpersonal relationship, we have shifted the focus of the divorce inquiry from fault evidence to more dignified and reliable economic evidence. Nonetheless, the more modern approach must be alloyed with the more ancient. ⁷ It is against a backdrop of confluent policies that we must examine the question before us now.

The statute at issue here, W.Va.Code, 48-2-4(a)(7) (1977), is something of a hybrid inasmuch as it contains elements of both the fault and no-fault theories. By virtue of that statute the ground for divorce is simple separation, but fault is retained as the basis for an award of alimony. To require an absolute proof of fault, as we are asked by the relator to do, would be to deny any opportunity for the award of alimony in circumstances where a party seeks a divorce on no-fault grounds, although there may be good and sufficient reason for the separation despite the absence of "fault" in its traditional legal sense as articulated in the "fault" grounds for divorce set forth in the same statute. To exclude consideration of misconduct altogether, however, would convert this statute to a pure no-fault procedure, with an attendant inequitable redistribution of wealth. This second extreme is clearly contrary to the desire of the Legislature, which inserted the word "fault" into the statute and which has now provided a complete no-fault option in W.Va.Code, 48-2-4(a)(7) (1977), which relies exclusively upon a consensual procedure. We note from practice, however, that frequently one party will want a divorce, need a divorce, and have good and sufficient reason under today's standards for seeking one, but will lack any of the grounds for divorce enumerated in the fault section of the statute. As this party is usually the wife, ⁸ who has relied to her detriment on the permanence of the marital relationship and is consequently bereft of assets, the quandary becomes how to treat her after the marriage relationship has become unbearable. We see no reason to adopt an extreme position, particularly as we are aware that divorce cases seldom present clear-cut issues of right and wrong.

We hold, therefore, that in a divorce action based upon W.Va.Code, 48-2-4(a) (7) (1977), a spouse seeking alimony must show the other spouse guilty of inequitable conduct. Although inequitable conduct need not be so serious as to fall into one of the standard fault categories enumerated in W.Va.Code, 48-2-4(a)(1-6, 9) (1977), it must be a significant wrong supported by a preponderance of the evidence in the record. In the case before us, while the husband may or may not have committed adultery, his conduct was found to give rise to a strong suspicion of adultery. Conduct of this sort, which would lead persons in the community reasonably to believe that the husband committed adultery and, therefore, to hold the wife up to ridicule and contempt, could reasonably be considered inequitable by the trial court.

Formerly when a wife established a ground for divorce based on traditional fault she was entitled to damages keyed to her station in life. The husband, however, had reasonably definite notice of those things which he must not do in order to protect himself from this charge. What, however, we are attempting to do under the hybrid section of the statute under consideration is not to punish either party, but rather only to avoid unjust enrichment on either side. Therefore, notwithstanding the fact that a wife is blameless, if a divorce is granted on the no-fault ground of voluntary separation and alimony is predicated upon that nebulous notion of inequitable conduct, then the wife has an obligation to mitigate her damages again an analogy from the contract side of this new confluent stream which merges tort and contract principles (which it should be emphasized again we recognize are applicable Only by analogy as all parts of an action for divorce are obviously entirely equitable.)

Of course, there will be occasions where the wife is not capable of mitigating the damages and the court should look to all the possible factors and tailor his decree in such a way as to strike a balance among all the competing equities. ⁹ If the wife is young but has no occupational skills, the court might provide alimony for a predetermined, limited time to support her while she undergoes vocational training. In the same vein, if the wife is no longer young but able to work at a job which can only help contribute to her support in her customary manner, than alimony can serve to supplement her income. Furthermore, a trial judge should look to the separate estates of the parties along with the ages of the parties, which are important because age reflects upon their ability to work; similarly, the duration of the marriage is important because duration is an index to the opportunity which the wife has foregone by being a housewife.

In short, we recognize that life-styles are changing and that different sub-groups in society expect different things from a marriage; some have a high tolerance for domestic friction, lack of romance, and inequitable conduct, while others do not. People change in their relations to one another over the years and a marriage which was once blissful can become most improvident over time. While a divorce may now be a simple way out for a spouse who is tired of a marriage, a totally blameless party can never be charged with alimony. ¹⁰ When, however, there has been inequitable conduct on the part of the husband and it appears that the wife has been comparatively blameless, the trial court is entitled to award such alimony as justice and the nature of the case demands according to the principles set forth above.

Accordingly, the writ of prohibition for which the relator prays is denied.

Writ denied.

1 W.Va.Code, 48-2-4(a)(7) (1977) provides as follows:

§ 48-2-4. Grounds for divorce.

(a) A divorce may be ordered:

(7) Where the...