Kyle v. Kyle, 23061
| Decision Date | 05 July 1996 |
| Docket Number | No. 23061,23061 |
| Citation | 197 W.Va. 252,475 S.E.2d 344 |
| Court | West Virginia Supreme Court |
| Parties | Penny A. KYLE, Plaintiff Below, Appellant, v. Edward D. KYLE, Defendant Below, Appellee. |
Syllabus by the Court
1. "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., 195 W.Va. 384, 465 S.E.2d 841 (1995).
2. "Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences." Syllabus point 3, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).
3. Syllabus point 1, Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789 (1993).
4. One co-tenant occupying land to the exclusion of another co-tenant is liable to the excluded co-tenant for the reasonable rental value of the excluded co-tenant's interest in the real estate.
5. The mere existence of a purchase money debt and encumbrance on the title to real estate does not defeat the jurisdiction of a circuit court to order the sale of such real estate in a divorce action.
6. West Virginia Code § 48-2-33(e) provides that, in a divorce action, a court may order the transfer of legal title to the former marital domicile and household goods to one of the parties without regard to the preference for effecting equitable distribution by lump sum or periodic payments.
7. Desertion is a ground for the outright denial of alimony only if that is the ground upon which the divorce is actually granted.
8. Living separate and apart for one year is a separate ground for divorce and does not disqualify one for alimony under the statute, even though it may be akin to desertion in some circumstances.
9. Accrued, as opposed to prospective, installments of alimony may be cancelled only on a ground that would warrant a court of equity to set aside a decree because of fraud or other similar equitable circumstance.
F. Alfred Sines, Jr., Victoria L. Casey, Charleston, for Appellant.
William W. Talbott, Webster Springs, for Appellee.
This is an appeal by Penny A. Kyle from an order of the Circuit Court of Webster County making equitable distribution of the parties' property and denying her an alimony award and certain attorney fees and costs in a divorce proceeding. In making its rulings, the appellant claims the circuit court refused to adopt the recommended order of the family law master without finding that the family law master's recommendations were clearly erroneous. The appellant also claims that the circuit court erred in substituting its findings for those of the family law master. After reviewing the issues presented and the record filed, this Court agrees with certain of the appellant's assertions and disagrees with other points. The judgment of the Circuit Court of Webster County is, therefore, affirmed in part, and reversed, in part.
The parties to this proceeding were divorced by an order of the Circuit Court of Webster County dated June 3, 1992, and the appellant was granted custody of the parties' two infant children, who are now aged ten and twelve.
While the Court does not have before it a transcript of the proceedings below, the findings of the family law master in the case show that the parties, during marriage, purchased three parcels of real estate upon which improvements were located. The first was a 6.24 acre tract located at Shady Springs, West Virginia. The second was an apartment building located at 221 North Heber Street in Beckley, Raleigh County, West Virginia. The third was a one-half interest in a camp in Webster County, West Virginia. Additionally, the parties were purchasing a 76.56 acre tract located in Webster County under a "land contract", and they also had acquired or were acquiring various items of personal property, on some of which money was still owed. The evidence also shows that money was owed on a number of the items of property.
Lengthy proceedings were conducted before a family law master. Before those proceedings were concluded, the matter was bifurcated, and on May 28, 1992, the family law master recommended, and by order made June 3, 1992, the parties were divorced on the ground that "the parties have lived separate and apart for one year". The existing temporary orders regarding child custody and alimony were continued in effect and all matters related to those subjects and "all phases of the finances" of the parties were reserved for later hearing. At the conclusion of the proceedings before the family law master, he made findings of fact, conclusions of law, and a recommended order, by his report dated September 22, 1992. The report of the family law master disposed of matters at issue and made the following recommendations with respect to the matters in dispute in this appeal:
(1) As to certain personal property specifically enumerated in the report, including a 23 foot camper located in Shady Springs, a Ford tractor located in Webster County, a Dynamart riding mower, a Honda ATV located in Webster County, all furnishings located on the 76.56 acre tract in Webster County, a hauling trailer located in Shady Springs, a chest freezer located in Shady Springs, an upright freezer located in Webster County, a satellite dish located on the 76.56 acre tract in Webster County, all personal property located in all outbuildings, sheds, and/or cellar houses on the 76.56 acre tract in Webster County and on the 6.24 acre tract in Shady Springs, and weapons (.25 pistol, M-1 carbine, .308 rifle, 22-250 rifle, and three other guns), the parties were to select an auctioneer and cause the property to be sold at auction, dividing the proceeds equally.
(2) Based on an agreement of the parties announced to the family law master at a hearing, which the law master found to be fair and equitable, the appellant was awarded exclusive use and possession of the 6.24 acre tract (sometimes referred to in the record as a 6.22 acre tract) in Shady Springs, West Virginia, together with the 1979 Oakwood mobile home located upon it, until the parties' youngest child reached the age of eighteen, incident to child support. When the parties' youngest child reached the age of eighteen, the parcel with the mobile home on it and furnishings contained within it were to be sold at public sale, with the proceeds derived therefrom to be divided equally between them. Notwithstanding the description of this award as "incident to child support", the family law master recommended two provisions regarding the 6.24 acre tract which appear to relate to equitable distribution and alimony. First, because the appellant had allowed her parents to occupy a part of the 6.24 acre tract and place a trailer on that part, the appellee claimed a credit or offset against the appellant for such usage. The parties agreed at the hearing before the master, and the master recommended, that the rental value of the lot occupied by the appellant's parents was $80.00 per month, and the law master allowed the appellee a credit of $40.00 per month against child support otherwise payable by the appellee. Second, the master recommended, as explained in more detail below, that the appellant's own use of the 6.24 acre tract tract be recognized separately from the children's occupancy of the premises.
(3) Based on the announced agreement, the 76.56 acre tract in Webster County, which it appears constituted the former marital domicile, the apartment on North Heber Street, and the one-half interest in the camp in Webster County were to be sold at public sale and the net proceeds be divided equally between the parties.
(4) The family law master found that, "considering the financial needs of the parties and [appellee's] ability to pay", the appellant should be awarded alimony until the children attain the age or eighteen or the appellant sooner remarries or dies; however, as noted in paragraph 2, above, the master recited that the appellee's obligation to pay alimony was to be offset by the appellant's free use of the appellee's interest in the 6.24 acres until the children of the parties reached the age of eighteen.
(5) As to attorney fees and costs, the family law master stated:
8. Both parties unnecessarily increased the length of the many hearings before the undersigned Master, which contributed to their increased attorneys' fees. The Plaintiff wasted the Court's time on the fault issue she failed to establish as a grounds for divorce and the Defendant wasted the Court's time on the issue of child custody. Therefore, each party should pay their own attorneys' fees. In addition, various public sales recommended hereby should generate funds for each party to pay their respective attorney's fees.
9. Considering their respective abilities to pay, the Defendant should pay 75 percent (or $532.50) and the Plaintiff 25 percent (or $177.50) of the Family Law Master hearing fees incurred herein.
Upon submission of the family law master's proposed order to the circuit court, the appellee filed a petition in the circuit court on or about October 5, 1992, seeking review of the family law master's report. The petition challenged the family law master's recommendation that the...
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