Mayhew v. Mayhew, 23263

• Decision Date: 19 July 1996
• Docket Number: No. 23263,23263
• Citation: 475 S.E.2d 382,197 W.Va. 290
• Court: West Virginia Supreme Court
• Parties: Nancy H. MAYHEW, Plaintiff Below, Appellant, v. Robert E. MAYHEW, Defendant Below, Appellee.

Page 382

475 S.E.2d 382

197 W.Va. 290

Nancy H. MAYHEW, Plaintiff Below, Appellant, v. Robert E. MAYHEW, Defendant Below, Appellee.

No. 23263.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1996.

Decided July 5, 1996.

Dissenting Opinion of Justice

Workman July 19, 1996.

[197 W.Va. 292] Syllabus by the Court

1. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syllabus point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

2. "Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

3. " ' "In a suit for divorce, the trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that he has abused his discretion." Syllabus point 3, Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).' Syl. Pt. 2, Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982)." Syllabus point 4, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993).

4. A transmutation occurs when the contributing spouse evidences his or her intent to made a gift of the nonmarital property to the marriage by significantly changing the character of the property to marital.

5. A trial court must address the question of what portion of any appreciation in value in separate property occurring during the marriage is marital property and of what portion remains separate property. That portion which is marital property is, like other marital property, subject to marital distribution.

6. With respect to a business owned or partially owned by either or both of the parties to a divorce action, the spouses are entitled to share equally in the appreciation in the value of that business during the marriage arising from the investment of marital property or the work of either party in the business, absent one or more of the factors enumerated in W.Va.Code § 48-2-32(c).

7. Under equitable distribution, the contributions of time and effort to the married life of the couple--at home and in the workplace--are valued equally regardless of whether the parties' respective earnings have been equal. Equitable distribution contemplates that parties make their respective contributions to the married life of the parties in that expectation.

8. The burden is on both parties to the litigation to adduce competent evidence on the values to be assigned in equitable distribution cases.

9. The burden of persuasion is on the party asserting a right to the property, that is to say that the burden of persuasion with respect to characterizing the property as separate property is on the one claiming the property to be separate and the burden of persuasion with respect to characterizing the property as marital is on the party claiming the benefit of that result.

10. Sound policy favors the continuation of short-term alimony past the untimely 11. The right of the payee to receive rehabilitative alimony ceases with payee's death.

[197 W.Va. 293] death of the payor in the absence of evidence that the payor's estate, should the payor die, is likely to be insufficient to meet other obligations, or other matters appear which would make such continuation after death inequitable.

12. Pursuant to W.Va.Code § 48-2-13(a)(6)(A), the court in a divorce proceeding may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court.

13. Under W.Va.Code § 48-2-13(a)(6)(B), the assertion of unfounded claims or defenses for "vexatious, wanton or oppressive purposes" by a party is made a fact relevant to a party's responsibility for attorney fees and costs.

Ward D. Stone, Jr., Spilman, Thomas & Battle, Morgantown, for Appellant.

William H. Judy, III, Judy & Judy, Moorefield, for Appellee.

ALBRIGHT, Justice:

This is an appeal by Nancy H. Mayhew from a final order entered by the Circuit Court of Hampshire County in a divorce proceeding. On appeal, the appellant claims that the circuit court erred in holding that twenty-four shares of Mayhew Chevrolet-Oldsmobile, Inc., titled in the name of her husband, the appellee, Robert E. Mayhew, were his separate, nonmarital property and that the circuit court also erred in valuing certain other shares of Mayhew Chevrolet-Oldsmobile, Inc., which were declared to be marital property. The appellant at another point claims that the trial court erred in failing to award her permanent alimony and in failing to award her rehabilitative alimony which would extend beyond her death in the event she died within the period of such rehabilitative alimony. She additionally claims that the circuit court erred in failing to award her full legal and accounting fees and that the court erred in deducting certain payments made by her husband for mortgage payments and car payments during the pendency of the divorce from her equitable distribution share. Lastly, she claims that the circuit court erred in failing to order both parties to exchange financial information until the parties' youngest child turned eighteen years of age.

The appellant, Nancy H. Mayhew, and the appellee, Robert E. Mayhew, were married on April 28, 1979. Shortly thereafter, they purchased a farm house on a one-acre tract in Romney, Hampshire County, West Virginia, and they resided there until Robert E. Mayhew moved out of the marital home in May, 1993.

During all but a brief time during the parties' marriage, Robert E. Mayhew worked for Mayhew Chevrolet-Oldsmobile, Inc., which previously known as Pancake Motors, located in Romney, West Virginia. Robert E. Mayhew's father, James Mayhew, was originally a part owner of the dealership, and later he acquired full ownership.

During the first four years of the parties' marriage, Nancy H. Mayhew worked at various jobs which paid minimum wage or slightly above minimum wage. The parties' first child, Elizabeth Anna Mayhew, was born on August 30, 1983, and their second child, Hillary Leigh Mayhew, was born on April 5, 1986. After the birth of the first child, the appellant became a full-time mother and homemaker. She continued as a full-time mother and homemaker during the rest of the parties' marriage.

On January 2, 1985, Robert E. Mayhew's father gave Robert E. Mayhew eight shares of the one hundred twenty-five outstanding shares of Mayhew Chevrolet-Oldsmobile, Inc., (or its predecessor Pancake Motors) as a gift. In May, 1988, Robert E. Mayhew purchased an additional ten shares of Mayhew Chevrolet-Oldsmobile, Inc., for $2,200.00 per share. At that time, according to the corporate minutes, an additional two shares were given to Robert E. Mayhew as a gift by his father. The corporate minutes also show that on January 4, 1989, James Mayhew gave Robert E. Mayhew seven additional shares, valued at $2,200.00 per share, and on January 3, 1990, he gave Robert E. Mayhew a In February, 1990, after the last gift of stock to Robert E. Mayhew, a major fire erupted at the Mayhew Chevrolet business location in downtown Romney, West Virginia. In that fire, the dealership's garage burned to the ground. It appears that following the fire Robert E. Mayhew and his father were at odds as to the course of action to be taken with regard to the dealership. Robert E. Mayhew was of the view that a parcel of land outside town should be purchased and that the dealership should be moved away from the downtown area. James Mayhew apparently did not agree.

[197 W.Va. 294] further seven shares. After the 1990 transaction, Robert E. Mayhew held thirty-four shares of the one hundred twenty-five shares of Mayhew Chevrolet-Oldsmobile, Inc., stock, and Robert E. Mayhew's father, James Mayhew, owned the remaining ninety-one shares.

Ultimately, the dealership was moved to the location outside of town, and in December, 1991, the corporation, Mayhew Chevrolet-Oldsmobile, Inc., purchased James Mayhew's ninety-one shares of the corporation for $250,000.00. The ninety-one shares became treasury stock, and at that point Robert E. Mayhew held all thirty-four shares of outstanding stock. In effect, Robert E. Mayhew became the sole owner and made all business decisions with regard to the operation of Mayhew Chevrolet.

Late in 1992, Nancy E. Mayhew learned that Robert E. Mayhew was possibly involved in an intimate relationship with another female. Nancy H. Mayhew confronted Robert E. Mayhew over this matter, and he did not deny the relationship, but indicated that he wanted a divorce. Shortly thereafter, he moved out of the marital home.

Divorce proceedings were subsequently instituted, and a temporary order was entered on October 13, 1993. In the temporary order, Nancy H. Mayhew was awarded legal custody of the parties' two children, exclusive possession of the marital home, child support in the amount of $875.00 per month, and alimony in the amount of $500.00 per month. Robert E. Mayhew was additionally required to pay all marital indebtedness on a monthly basis.

Pursuant to the temporary order, Robert E. Mayhew paid the mortgage on the parties' marital home in the amount of $402.01 per month. He also made a car payment in the amount of $142.17 per month, paid the utilities for the marital home, and paid health-related expenses for the two...