Fischer v. Fischer

• Decision Date: 17 December 1985
• Docket Number: No. 16568,16568
• Citation: 338 S.E.2d 233,175 W.Va. 753
• Parties: Carole Sue FISCHER v. Clarence Samuel FISCHER.
• Court: West Virginia Supreme Court

Page 233

338 S.E.2d 233

175 W.Va. 753

Carole Sue FISCHER v. Clarence Samuel FISCHER.

No. 16568.

Supreme Court of Appeals of

West Virginia.

Dec. 17, 1985.

Syllabus by the Court

"The doctrine of equitable distribution permits a spouse, who has made a material economic contribution toward the acquisition of property which is titled in the name of or under the control of the other spouse, to claim an equitable interest in such property in a proceeding seeking a divorce...." Part, syl. pt. 2, LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983).

Robert L. Godbey, Huntington, for appellant.

James E. Nelson, Nelson, Hager & Pancake, Huntington, for appellee.

BROTHERTON, Justice.

This is an appeal from a final order of the Circuit Court of Wayne County dated the 14th day of February, 1984, granting the appellant, Carole Sue Fischer, a divorce from her husband of twenty years, the appellee, Clarence Samuel Fischer, and making a division of the parties' property. While both parties appear to want the marriage terminated, no agreement could be reached on the distribution of property, and this is the subject of the present appeal. We hold that the circuit court erred in the distribution of the property and reverse.

The Fischers were married on the 16th day of December, 1963, and lived in Wayne County, West Virginia. At the time of the divorce, they had two children, John, sixteen, and Michael, thirteen. The divorce was on the ground of irreconcilable differences. Evidence taken before a commissioner showed that Mrs. Fischer owned one third of an automobile business where she worked, and that Mr. Fischer was a self-employed barber. The two also ran a small, twenty-seven and one-half acre farm, on which they raised a few head of cattle. The farm was also the site of the marital dwelling, a trailer, and a small house, which the parties were remodeling. In addition, the parties owned a trailer court and related houses and the barber shop property.

In its order dividing the parties' property, the circuit court ordered, among other things:

(1) That the parties live in separate dwellings on the twenty-seven and one-half acre property;

(2) That they share the same barn;

(3) That they share the farm lands, with Mrs. Fischer having control of the land, but Mr. Fischer being able to keep two head of cattle on the property;

(4) That no partition of the jointly owned real estate will be allowed until the youngest child turns eighteen, including the barber shop, for which Mr. Fischer will pay $50.00 to Mrs. Fischer as rent for her undivided one-half interest;

(5) That a sale of certain farm implements to a third party, John Lemley, was valid and, therefore, the implements were his property; and

(6) That Mrs. Fischer was not entitled to any of the proceeds from cattle purchased by Mrs. Fischer and maintained by Mr. Fischer during their married life.

Mrs. Fischer contends that the trial court erred in unduly restricting the partitioning of joint property; granting the farm implements to a third party; and awarding the entire proceeds from the sale of the cattle to Mr. Fischer. We agree with the appellant's last contention and reverse the decision of the trial court. ¹

I.

When parties are separated by divorce, it is best, to the extent possible, for them to be completely separated. Courts have said, for example, that property division which leaves the parties to a divorce as tenants in common to property which can be divided should be avoided in the interest of preventing unnecessary extension of disputes and ill feelings. See Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). Nevertheless, there are two situations in which partition may not be appropriate. The first is when the best interests of the children of the marriage demand that certain items not be partitioned. See Murredu v. Murredu, 160 W.Va. 610, 616-17, 236 S.E.2d 452, 457 (1977). The second exception is where economic considerations override the need for a partition. See, e.g., Corder v. Corder, supra, 546 S.W.2d at 805.

Both exceptions are present in this case. A partitioning of the barber shop may require a sale of the property, which would leave Mr. Fischer temporarily without income. He might, therefore, not be able to keep up his part in supporting the children. Thus, the trial judge was within his discretion in finding that economic considerations outweighed the need for partition. Further, the best interests of the children might not be served by partitioning the farm.. The farm is the home place for the children. A partition might displace them from their home. This Court...