L. v. Philips v. W. R. Philips

• Decision Date: 25 September 1928
• Docket Number: (No. 6170)
• Citation: 106 W.Va. 105
• Parties: L. v. Philips v. W. R. Philips
• Court: West Virginia Supreme Court

106 W.Va. 105

L. v. Philips

v.W. R. Philips

(No. 6170)

Supreme Court of Appeals of West Virginia.

Submitted September 16, 1928.

Decided September 25, 1928.

1. Divorce Marriage On Marriage Annulment or Dissolution or Divorce, Court May Decree Concerning Division of Estate of Parties Acquired During Marriage (Code, c. 64, § 11).

Where decree of annulment or dissolution of marriage is awarded, or divorce is granted either from bed and board or from the bonds of matrimony, the court has power under section 11, Chapter 64, Code, to decree further concerning the estate of either or both of the parties acquired during marriage, as the court may deem expedient, including an equitable division thereof.

(Divorce, 19 C. J. § 773.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Raleigh County. Suit for divorce by L. Y. Philips against W. R. Philips. From the decree, plaintiff appeals.

Affirmed.

J. E. Summer field, for appellant. John Q. Hutchinson, for appellee.

Lively, President:

In this divorce proceeding by Mrs. L. V. Philips against W. R. Philips, the trial conrt granted the complainant a divorce a vincido on the ground of adultery; awarded her the custody of the minor children; ordered that the husband pay alimony of $30.00 per month; and under the authority of section 11, chapter 64, Code, decreed that the title to certain real property valued, according to the evidence, at $7,000.00, with a lien against a portion thereof, of $1627.51, should remain in the wife, and that she should deed her half interest in a lot described as lot 11, block 10, to her husband. This property was valued at about $10,000.00 with liens against it of $3900.00. The complainant excepted to the court's decree requiring her to make this conveyance.

The sole question presented on this appeal is whether the trial court could, under the authority of section 11, chapter 64, provide in a divorce proceeding for a division of real estate acquired by them during the marriage between the complainant and defendant.

As a general rule, a court cannot in a divorce action decree a division of property between husband and wife. The authority exists only by statutory enactment. 19 C. J. section 770, p. 331. Our statute on this subject, section 11, chapter 64, Code, provides, in part: "Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them. * * *"

This Court in Norman v. Norman, 88 W. Va. 640, indicated that in a proper case the trial court might, under this statute, bar the marital right of dower or curtesy; and in the Virginia case of Gum v. Gum, 122 Va. 32, it was held that under the provisions of a similar statute, the court could in a divorce proceeding extinguish the marital rights of a wife to dower in her husband's estate. In Barnes v. American Fertilizer Company, 144 Va. 692, the court seemed inclined to the view that under the statute, in the absence of agreement, the power of the court was limited to the settlement of those property rights which arose by operation of law out of the marital relation, and in the protection of the respective estates of the parties. In Deusenherry v. Deusenherry 82 W. Va. 135, we held that a divorce decree would not be reversed for failing to ascertain and decree the estate and rights of the parties in property owned by them, respectively, because the pleadings did not call for such relief. It was there said: "Section 11, of chapter 64, of the Code, probably gives the court jurisdiction to do this, but nothing in the pleadings or proceedings called for such relief."

In a number of States by statutory enactment the trial court may in a divorce proceeding make a division of the property between husband and wife. These statutes are quite different from ours and are not very helpful in aiding us to determine the power which the trial court in this state can exercise under section 11, chapter 64, Code. The clear purpose of this section was to give the court power to determine and adjudicate the questions naturally arising upon a dissolution of marriage or the granting of a divorce a mensa et thoro, or a vinculo matrimonii, concerning the estate and maintenance of the parties or either of them, and the care, custody and maintenance of the children, if any there be, resulting from the marriage. Just how far the court may decree concerning the "estate" of the parties is not clear. What is the meaning of '' estate'' in this statute f Shall it be construed to mean only the dower or curtesy interest which one spouse has in the real estate of the other, and...