Murredu v. Murredu

• Decision Date: 12 July 1977
• Docket Number: No. 13653,13653
• Citation: 98 A.L.R.3d 1136,160 W.Va. 610,236 S.E.2d 452
• Court: West Virginia Supreme Court
• Parties: , 98 A.L.R.3d 1136 Brenda B. MURREDU v. John Samuel MURREDU.

Page 452

236 S.E.2d 452

160 W.Va. 610, 98 A.L.R.3d 1136

Brenda B. MURREDU v. John Samuel MURREDU.

No. 13653.

Supreme Court of Appeals of West Virginia.

July 12, 1977.

Syllabus by the Court

1. W.Va.Code, 48-2-10, relating to corroboration in divorce actions, is applicable to a divorce proceeding based upon the two-year separation ground contained in W.Va.Code, 48-2-4(a)(7).

2. 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.

3. Under the provisions of W.Va.Code, 48-2-21, in the absence of a specific request for possession of enumerated personal property, the trial court is not authorized to award ownership of personal property in a divorce action.

4. In a contest involving the custody of infant children, their welfare is the guiding principle by which the discretion of the trial court will be controlled and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion.

5. A trial court in appropriate circumstances, after taking into account the earnings, income, property and financial condition of both parties, may require a wife to contribute to the financial support of her minor children.

6. Rule 15 of the Rules of Civil Procedure relating to amended and supplemental pleadings is applicable to divorce actions, and such Rule should be liberally construed.

Guy R. Bucci, Charleston, for appellant.

John V. Esposito, Logan, for appellee.

MILLER, Justice:

This is an appeal by a wife from a final divorce decree under which her husband obtained the custody of the three minor children, the right to live in the home property until the youngest child reaches eighteen, and possession of the household furnishings. The decree required the wife to pay $1.00 a month for each child as child support. We affirm in part and reverse in part.

The wife originally filed for divorce in October of 1972 alleging mental cruelty. The husband answered denying her allegation and counterclaimed on the same ground. After a commissioner's hearing, a report was returned to the court recommending that the wife be granted a divorce, custody of the three minor children, and possession of the family home. No action was taken by the trial court on this report.

Approximately three months after the commissioner's report was filed with the court, the husband obtained leave to file an amended answer and counterclaim asserting a new ground for divorce against the wife. The matter was again referred to the commissioner, who in his second report recommended that neither party be granted a divorce, and that the husband be given custody of the three children and the exclusive possession of the home property and the household furnishings.

Both parties filed exceptions to this report. The court, in an opinion letter dated November 21, 1974, essentially confirmed the commissioner's second report, but pointed out that the two-year separation statute ¹ would enable the parties to obtain a divorce. The court stated that if either of the parties would file an amended complaint alleging this ground, it would grant a divorce without the taking of any additional evidence. Such amendment was filed by the husband to which the wife responded, admitting the two-year separation.

The court, without further hearing, entered the final decree.

Wife's first ground of error is that the requirement of corroboration under W.Va.Code, 48-2-10, applies to a divorce based on the two-year separation ground set out in W.Va.Code, 48-2-4(a)(7). We agree that the statutory corroboration requirement is applicable. There is nothing in the two-year separation statute which would suggest otherwise. The Legislature, at the time it made revisions to the divorce statutes in 1969 adding the two-year separation ground, must have considered the impact of the section requiring corroboration in divorce actions. It is presumed that the Legislature was aware of this Court's uniform holdings that this statute requires some corroboration of the material facts on which the divorce grounds are based. Finnegan v. Finnegan, 134 W.Va. 94, 58 S.E.2d 594 (1950); Persinger v. Persinger, 133 W.Va. 312, 56 S.E.2d 110 (1949); Marcum v. Marcum, 113 W.Va. 374, 168 S.E. 389 (1933). The reason for some corroboration independent of the parties is to prevent collusive divorces. As this Court stated in Marcum :

"Common experience forces the observation that in divorce cases jurisdiction is apt to be, perhaps more frequently than any other fact, the subject of collusion. In view of the public interest in divorce proceedings, we can see no reason for not requiring jurisdictional facts to be both pleaded and proved in strict conformity with the statute in its literal interpretation." (113 W.Va. at 378, 168 S.E. at 391)

Certainly, if the Legislature had intended that no corroboration was necessary on the two-year separation, it could have provided similar language to that found in its recent amendment to W.Va.Code, 48-2-4. There, in establishing a new ground on the basis of irreconcilable differences, the Legislature expressly permitted the court to grant a divorce upon the verified answer of the respondent admitting the existence of irreconcilable differences, and stated that "no corroboration of the grounds of such divorce shall be required" in such case. ²

Here, we are of the view that there was sufficient corroboration of the two-year separation to justify the trial court's finding. This was not a situation where the lower court granted the divorce based solely on the complaint and answer. Two lengthy hearings were conducted before the divorce commissioner and all aspects of this case were hotly contested. The evidence reflects that the parties separated in October of 1972 and remained separated through the entire period up to the final decree of December 6, 1974. While the record does not contain a precise statement of a corroborating witness that two years had transpired, it is clear that as of July, 1974, the parties were still separated and openly hostile.

The wife's second ground of error centers on the court's disposition of the real and personal property. Specifically, she claims that the court had no authority to order that the husband be given exclusive possession of the jointly owned home property until the youngest child reaches eighteen. She also asserts the court erred in awarding all of the furnishings in the home property to the husband, as some of the items were her personal property and no hearing was held to determine ownership.

With regard to the granting of exclusive possession of the home property to the husband incident to his obtaining custody of the children, we can find only one case in this jurisdiction that touches on this subject. In Kinsey v. Kinsey, 143 W.Va. 574, 103 S.E.2d 409 (1958), the Court made this statement:

"The decree of the Domestic Relations Court of Cabell County provides that the plaintiff and the infant children shall have 'exclusive use of that certain dwelling house located at 2453 Collis Avenue, Huntington, West Virginia, the house being owned jointly by both parties.', and we find that such is supported by the bill and the evidence adduced at the hearing. This decree does not, as contended by counsel for the appellant, give a life estate in the property to the wife." (143 W.Va. at 582-83, 103 S.E.2d at 414)

There appears to be statutory authority for permitting this practice under the general statute on alimony and maintenance, W.Va.Code, 48-2-15, which contains this language:

"For the purpose of making effectual any order provided for in this section the court may make any order concerning the estate of the parties, or either of them, as it shall deem expedient."

W.Va.Code, 48-2-21, gives authority to the divorce court to decree the transfer of real and personal property, as follows:

"Upon decreeing the annulment of a marriage, or upon decreeing a divorce, the court shall have power to award to either of the parties whatever of his or her property, real or personal, may be in the possession, or under the control, or in the name, of the other, and to compel a transfer or conveyance thereof as in other cases of chancery."

In State ex rel. Collins v. Muntzing, 151 W.Va. 843, 157 S.E.2d 16 (1967), this Court held that neither of the foregoing statutes conferred jurisdiction to permit the divorce court to order a sale of real estate owned by the wife. The Court expressly noted that the challenged order of sale was ". . . not entered for the purpose of making effectual an order relating to the maintenance of the parties . . ." Implicit in the opinion was the recognition that in certain instances W.Va.Code, 48-2-15, would authorize an order affecting the property of the parties. Essentially this same position was adopted by the Court in State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958).

In the present case, it is clear that the exclusive possession of the home property was given to the husband as a result of his obtaining custody of the children. We interpret W.Va.Code, 48-2-15, as conferring authority on a divorce court to grant exclusive possession of the home property to one spouse incident to obtaining custody of the children. This interpretation was expressly left open in Muntzing, supra, and Worrell, supra.

We are aware that a partition suit under W.Va.Code, 37-4-1, is available where there is joint ownership of real property. However, as indicated in Stalnaker v. Stalnaker, 139 W.Va. 658, 80 S.E.2d 878 (1954), such action is equitable in nature and it must be shown that the interest of the persons owning the land would be promoted by the sale. It would seem that this would afford sufficient protection against a partition suit designed to frustrate a divorce court's award of exclusive possession of the home property...