McKinney v. Kingdon, 14195
Decision Date | 05 December 1978 |
Docket Number | No. 14195,14195 |
Citation | 162 W.Va. 319,251 S.E.2d 216 |
Court | West Virginia Supreme Court |
Parties | Ronald Keith McKINNEY v. Hon. A. R. KINGDON, Judge. |
Syllabus by the Court
1. "Code, 48-2-15, confers on a court in a divorce suit power to make any order or decree concerning the estate of the parties, or either of them, as it may deem expedient, only for the purpose of making effectual any order or decree made in the case relating to the maintenance of the parties, or the custody and maintenance of their children." Syl. pt. 2, State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958); Kinsey v. Kinsey, 143 W.Va. 574, 583, 103 S.E.2d 409, 414 (1958); syl. pt. 2, Wood v. Wood, 126 W.Va. 189, 28 S.E.2d 423 (1943).
2. A spouse in a divorce action may be ordered to give the other possession and use of an automobile and to convey its title, but only when such an order makes effectual an order or decree as contemplated by W.Va.Code § 48-2-15 and our case law.
Lynch, Mann & Knapp and Norman Knapp, Beckley, for relator.
Bailey, Worrell & Viers and Paul A. Viers, Pineville, for respondent.
On September 14, 1977, respondent Regina McKinney filed in the Circuit Court of Wyoming County an action for divorce by which she prayed, Inter alia,
. . . that (she) be awarded and granted the exclusive possession and use of a 1977 Volkswagen Rabbit motor vehicle owned by the parties hereto for the transportation of (her) and her infant children in and about the transaction of their everyday affairs and business . . . .
At trial, respondent testified that she and her husband owned the contested 1977 Volkswagen Rabbit as well as a 1977 Dodge van. In his petition before this Court, petitioner alleges that he is and has been the equitable, legal and record owner of the automobile in dispute.
Petitioner did not appear at trial, and the court awarded respondent a divorce, custody of the children and "the exclusive possession, ownership and use of a 1977 Volkswagen Rabbit motor vehicle owned by the parties hereto for the transportation and transaction of the everyday affairs of the (respondent) and her infant children."
After the divorce proceeding below, petitioner attempted to convey title of the automobile to a third party and has refused to surrender it to the respondent.
It is the execution of the final order and the subsequent order of March 3, 1978, finding him in contempt of court to which the petitioner seeks a writ of prohibition. He prays that this Court prohibit the enforcement of the final order insofar as it requires him to transfer the possession, ownership, and use of the 1977 Volkswagen Rabbit. 1
It is axiomatic to this area of law that, "The jurisdiction of divorce cases is purely statutory, and the court possesses no powers in such cases involving matters of property beyond those conferred by statute . . . ." State ex rel. Hammond v. Worrell, 144 W.Va. 83, 88-9, 106 S.E.2d 521, 524 (1958) Citing Selvy v. Selvy, 115 W.Va. 338, 177 S.E. 437 (1934) and Phillips v. Phillips, 106 W.Va. 105, 144 S.E. 875 (1928).
Prior to 1931, the statute conferring jurisdiction was Code 1923, Ch. 64, § 11, which provided that:
Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce . . . 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 provision and the cases under it, formerly gave the court "almost unlimited control of the property of the parties in a divorce proceeding." State ex rel. Hammond v. Worrell, 144 W.Va. 83, 89, 106 S.E.2d 521, 525 (1958) Quoting Selvy, supra, 115 W.Va. at 341, 177 S.E. at 439. Phillips v. Phillips, supra, 106 W.Va. at 109, 144 S.E. at 877, for example, discusses how "it was the intention of the act to give the court . . . the power to settle the claims of the respective parties in and to the property acquired by them during marriage."
But this provision was changed in the Code of 1931 and appears today in W.Va.Code § 48-2-15 as follows For the purpose of making effectual any order or decree provided for in this section the court may make any order or decree concerning the estate of the parties, or either of them, as it shall deem expedient (emphasis added).
Selvy v. Selvy, supra, 115 W.Va. at 341, 177 S.E. at 439, characterizes this revised provision as "decidedly more restrictive" than its predecessor and explains how circuit court jurisdiction over property of the parties to a divorce was restricted by the statutory change:
(U)nder the (new) divorce statute of this state, the court's control over the estate of the parties, as such, is indirect and is such only as is necessary to enforce its decrees for alimony and for maintenance. Under the . . . former statute . . . that control was said to be direct.
Selvy was preceded by Games v. Games, 111 W.Va. 327, 161 S.E. 560 (1931), the first case dealing with this new provision. The Court in Games held at 330, 161 S.E. at 562, that:
Obviously, under this new provision, the power of the court to deal with real estate in a divorce suit is secondary and not primary. The corpus of real estate ordinarily may not be decreed as and for alimony, but it may be impressed as a guarantee for the payment of alimony.
The Revisers' Note to 48-2-15, Code 1931, similarly affirms that the circuit courts have only secondary power over the property of a partner to a divorce and may exercise this power only "for the purpose of making effectual any order or decree," such as when a court makes a money decree for alimony a lien on the husband's land. See, e. g., Goff v. Goff, 60 W.Va. 9, 53 S.E. 769 (1907).
The Court uniformly followed this interpretation for over 45 years as exemplified by this second syllabus point from Wood v. Wood, 126 W.Va. 189, 28 S.E.2d 423 (1943), and State ex rel. Hammond v. Worrell, supra, as well as by Kinsey v. Kinsey, 143 W.Va. 574, 583, 103 S.E.2d 409, 414 (1958):
Code, 48-2-15, confers on a court in a divorce suit power to make any order or decree concerning the estate of the parties, or either of them, as it may deem expedient, only for the purpose of making effectual any order or decree made in the case relating to the maintenance of the parties, or the custody and maintenance of their children.
The syllabus of Smith v. Smith, 134 W.Va. 448, 59 S.E.2d 894 (1950) explains well the limited statutory power of the courts to deal with the property of the parties to a divorce action.
In a suit for divorce, courts are empowered by Code, 48-2-15, to enter such orders and decrees as may be deemed expedient to secure compliance with orders and decrees relating to the care, custody, education and maintenance of minor children, including the power to impound personal property; such power is a discretionary one, reviewable by the Supreme Court of Appeals.
In that case the trial court's impounding of proceeds from the sale of bonds as security for the payment of support and maintenance was found to be an abuse of discretion.
Thus, the statute has uniformly been interpreted to permit courts to deal with the property of the parties when necessary to effectuate orders entered for the welfare of the parties or of their minor children. Historically, as shown above, this has been used almost exclusively to guarantee the payments for support, maintenance, education, etc. Characteristically, the husband's real or personal property is tied up one way or another in order to secure his continued compliance with orders of the court.
But securing compliance by guaranteeing payments is only one way of "making effectual" a divorce order or decree. As the original Revisers' Notes to W.Va.Code 48-2-15, Code 1931, instruct, "The court . . . is free to follow any other plan that is called for by equity and the circumstances."
In Murredu v. Murredu, W.Va., 236 S.E.2d 452 (1977) another plan for effectuating a divorce order was before this Court. The trial court had granted a divorce to the husband and awarded him custody of the three minor children, the right to live in the home property until the youngest child achieved majority, and possession of the household furnishings. The wife argued, in effect, that the court had no jurisdiction to grant to the husband exclusive possession of the jointly owned home property and furnishings because any such order was not "for the purpose of making effectual any order or decree" as provided for in W.Va.Code 48-2-15.
We disagreed and held in syllabus point 2 that "A trial court in the exercise of its sound discretion under the provisions of W.Va.Code 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children." Thus, we determined that the trial court's award to the husband of the use of "the estate of the parties" was necessary in order to bring about and fulfill the award to him of custody of the minor children.
Today we must determine whether the court below had jurisdiction to award to the respondent-wife possession and use of the 1977 Volkswagen Rabbit, and if it did have jurisdiction, whether it exceeded its legitimate powers by ordering and compelling that possession of title be transferred to her.
As detailed above, jurisdiction in such cases is statutory. Thus, the threshold inquiry is whether under W.Va.Code 48-2-15 the court order respecting the automobile was "for the purpose of making effectual" the order granting custody to the petitioner. Petitioner, citing Murredu, supra, maintains:
That, however, is precisely the case in this instance. The car is necessary to the proper care and custody of the children as for taking to and from the doctor and dentist or getting their groceries or buying them clothing or any of the other multitudinous reasons that one Must leave his home to do in order to care for his family. The topography and rural nature of West...
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