Jones v. Jones

• Decision Date: 03 April 1986
• Docket Number: No. 16381,16381
• Citation: 345 S.E.2d 313,176 W.Va. 438
• Court: West Virginia Supreme Court
• Parties: John Milburn JONES v. Anna Lou JONES.

Page 313

345 S.E.2d 313

176 W.Va. 438

John Milburn JONES v. Anna Lou JONES.

No. 16381.

Supreme Court of Appeals of West Virginia.

April 3, 1986.

Rehearing Denied July 9, 1986.

Syllabus by the Court

1. "Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately its conclusions of law thereon before entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance." Syl. pt. 1, Nagy v. Oakley, 172 W.Va. 569, 309 S.E.2d 68 (1983).

2. "W.Va. Const. art. III, § 17, prohibits a commissioner of the circuit court assigned to hear a divorce proceeding from refusing to hear the case, prepare a report, or file a report until his fee is paid, and it is an unconstitutional application of W.Va.Code 59-1-8 [1943] to treat it as authorizing such a practice in divorce cases." Syl. pt. 1, Nagy v. Oakley, 309 S.E.2d 68 (1983).

3. "Under W.Va.Code 48-2-25 [1969] a circuit court may refer a divorce case to a commissioner if three conditions are met: (I) the workload of the circuit must justify the employment of commissioners to prevent undue delay in the dispatch of the civil docket; (II) the fees of commissioners must be reasonable and awarded only on the basis of work actually performed; and (III) the circumstances of the litigants must be such that an undue financial burden is not placed upon them as a result of paying a commissioner." Syl. pt. 2, Nagy v. Oakley, 172 W.Va. 569, 309 S.E.2d 68 (1983).

4. "Alimony must not be disproportionate to a man's ability to pay as disclosed by the evidence before the court." Syl., Miller v. Miller, 114 W.Va. 600, 172 S.E. 893 (1934).

5. "Spouses are protected from acts before, during or after marriage that are intended to deprive them of part of their marital partners' estates upon which to base claims for support." Syl., Wallace v. Wallace, 170 W.Va. 146, 291 S.E.2d 386 (W.Va.1982).

Charles W. Covert, St. Albans, for appellant.

Paul Zakaib, Jr., Charleston, for appellee.

McGRAW, Justice:

The appellant, John Milburn Jones, appeals from a final order of the Circuit Court of Kanawha County, entered in his proceeding for divorce from the appellee, Anna Lou Jones. We address those assignments of error presented by the appellant relevant to our disposition of his appeal. First, the appellant protests the trial court's award of $7,500.00 in attorney fees to the appellee. Second, the appellant objects to the collection of fees by the special commissioner to whom his action was referred by the trial court. Third, the appellant contests the trial court's award of $1,500.00 in monthly alimony to the appellee. Finally, the appellant challenges the trial court's award of $4,050.00 to the appellee for her equity in an automobile that was repossessed following his failure to make monthly loan payments. Following a brief recitation of the procedural history of this litigation, we will address each of these assignments of error.

On June 3, 1979, the appellant filed for divorce from the appellee in the Circuit Court of Kanawha County. On December 3, 1975, the matter was referred to a special commissioner. On May 23, July 25, and September 4, 1980, hearings were conducted by the special commissioner in this matter. On February 3, 1981, the special commissioner reported his findings and recommendations to the trial court. On May 8, 1981, the trial court heard exceptions to the commissioner's report, and returned the case back to the commissioner for taking additional evidence. On July 6, July 7, and September 18, 1981, additional hearings were conducted by the commissioner. On November 30, 1981, the commissioner filed his final report. On January 29, 1982, the trial court heard exceptions to the commissioner's second report. Finally, on June 18, 1982, the final order from which the appellant appeals was filed by the trial court.

I

The final divorce decree in the instant proceeding provided that "the plaintiff pay all costs of this action and the reasonable attorney fees of the defendant in the amount of $7,500.00." There is no discussion in the decree with respect to the basis of this award. Further, there is no discernible evidence of record that would indicate whether this attorney fee award was reasonable or unreasonable in light of the work performed.

In Syllabus Point 1 of Commonwealth Tire Co. v. Tri-State Tire Co., 156 W.Va. 351, 193 S.E.2d 544 (1972), this Court held that:

Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately its conclusions of law thereon before entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance.

See also Syl. pt. 3, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986); Syl. pt. 5, Allen v. Allen, 173 W.Va. 740, 320 S.E.2d 112 (1984); Syl., Chandler v. Gore,, Chandler v. Gore, 170 W.Va. 709, 296 S.E.2d 350 (1982); Syl. pt. 2, Bills v. Bills, 170 W.Va. 707, 296 S.E.2d 348 (1982); Golden v. Board of Education, 169 W.Va. 63, 285 S.E.2d 665 (1981); Syl. pt. 1, Spence v. Spence, 167 W.Va. 704, 280 S.E.2d 307 (1981); Syl. pt. 2, Pierce v. Pierce, 166 W.Va. 389, 274 S.E.2d 514 (1981); Syl. pt. 6, Parkway Fuel Service, Inc. v. Pauley, 159 W.Va. 216, 220 S.E.2d 439 (1975); Syl. pt. 1, Peoples Bank of Point Pleasant v. Pied Piper Retreat, Inc., 158 W.Va. 170, 209 S.E.2d 573 (1974); Syl. pt. 3, National Grange Mut. Ins. Co. v. Wyoming County Insurance Agency, Inc., 156 W.Va. 521, 195 S.E.2d 151 (1973); Pettry v. Chesapeake & Ohio Ry. Co., 148 W.Va. 443, 449, 135 S.E.2d 729, 733 (1964). With specific reference to an award of attorney fees, this Court recently held in Syllabus Point 4 of Aetna Cas. & Sur. Co. v. Pitrolo, supra:

Where attorney's fees are sought against a third party, the test of what should be considered a reasonable fee is determined not solely by the fee arrangement between the attorney and his client. The reasonableness of attorney's fees is generally based on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

See also West Virginia Code of Professional Responsibility DR 2-106(B). Not one of these factors, or any other factor for that matter, was mentioned by the trial court in its final order. Accordingly, we reverse the trial court's award of attorney fees in this action and remand for a hearing and disposition consistent with the foregoing principles.

II

In a letter dated July 14, 1981, the special commissioner to whom the appellant's divorce action was referred informed the appellant's attorney that, "I would require a deposit from Mr. Jones of at least $1,500.00 to ensure the prompt payment of my fees herein.... I will not give the matter further attention or more time until the $1,500.00 deposit is made." This amount was paid by the appellant to the special commissioner on September 18, 1981. Previously, it appears that the appellant had paid the special commissioner amounts totalling $1,125.00, for a total fee of $2,625.00. In his final report, the special commissioner stated that, "Your commissioner recommends that the plaintiff be assessed costs of the proceedings herein, including a fee for your Commissioner, in the amount of Fifteen Hundred Dollars ($1,500.00)." It is unclear as to whether this amount included or was in addition to the $2,625.00 already advanced. In any event, the final order entered made no reference to the award of commissioner fees.

In Syllabus Point 1 of Nagy v. Oakley, 172 W.Va. 569, 309 S.E.2d 68 (1983), this Court held that:

W.Va. Const. art. III, § 17, prohibits a commissioner of the circuit court assigned to hear a divorce proceeding from refusing to hear the case, prepare a report, or file a report until his fee is paid, and it is an unconstitutional application of W.Va.Code 59-1-8 [1943] to treat it as authorizing such a practice in divorce cases.

Obviously, the special commissioner's actions in the instant case did not comport with West Virginia Constitution art. III, § 17, which guarantees that "justice shall be administered without sale, denial, or delay."

We further held in Syllabus Point 2 of Nagy v. Oakley, supra:

Under W.Va.Code 48-2-25 [1969] a circuit court may refer a divorce case to a commissioner if three conditions are met: (I) the workload of the circuit must justify the employment of commissioners to prevent undue delay in the dispatch of the civil docket; (II) the fees of commissioners must be reasonable and awarded only on the basis of work actually performed; and (III) the circumstances of the litigants must be such that an undue financial burden is not placed upon them as a result of paying a commissioner.

Irrespective of the question of the applicability of the first and third criteria, there is no discernible evidence of record that would indicate whether fees collected were reasonable or unreasonable in light of the work performed. In spite of the clear mandate in West Virginia Code § 48-2-25 (1980 Replacement Vol.), that "The [divorce] commissioner shall be allowed for his services the same...