Newton S. Wood v. Hazel Wood, (No. 9468)
| Decision Date | 02 November 1943 |
| Docket Number | (No. 9468) |
| Citation | 126 W.Va. 189 |
| Court | West Virginia Supreme Court |
| Parties | Newton S. Wood v. Hazel Wood |
Where property accumulated during married life is taken and held in the name of one spouse only, the law presumes, in the absence of an agreement to the contrary, that the contribution thereto of the other spouse was a gift to the one holding title to the property.
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 pur- pose 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.
In order that a party to a divorce suit may be awarded therein "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," (Code, 48-2-19) the party seeking such relief must by pleading lay a basis therefor by showing a reasonable description of the property, his or her ownership thereof or right thereto and the possession, control or title in the other party, and praying, either specially or generally, for the relief sought.
Appeal from Circuit Court, Randolph County.
Suit for divorce by Newton S. Wood against Hazel Wood, wherein defendant filed a cross-bill asking for divorce, custody of a child, alimony, and a settlement of property rights. The trial court awarded plaintiff a divorce and custody of the child and gave defendant a money judgment, and from so much of the monetary decree as exceeded a certain sum representing a loan, plaintiff appeals, and defendant assigned error in that she was not decreed a divorce and custody of the child.
Reversed in part; affirmed in part.
E. L. Maxwell, for appellant. Joseph J. Madden, for appellee.
Newton S. Wood instituted, against his wife, Hazel Wood, in the Circuit Court of Randolph County, a suit for divorce in which he sought, also, the custody of their only child, a son aged ten years. The defendant by answer denied the plaintiff's charges and, by way of crossbill, asked for a divorce from the plaintiff, the custody of the child, alimony, a decree for $175 for money lent to the plaintiff, and a "settlement" of property rights in cer- tain real estate claimed to be owned jointly by the plaintiff and defendant.
The court awarded the plaintiff a divorce and the custody of the child, and denied the defendant all relief except a personal decree for $1375 against the plaintiff. This included $175 lent by the defendant to the plaintiff. From so much of this monetary decree as exceeded the said sum of $175, an appeal was asked by the plaintiff, and granted. The defendant assigns cross-error in that she was not decreed a divorce and the custody of the child.
The decree on the cross-claims for divorce and for the custody of the child, was made upon sharply conflicting evidence, and, hence cannot be disturbed. We consider, however, that there was a clear preponderance of evidence in favor of the plaintiff. No complaint is made of the recovery allowed the defendant for the sum of $175, and this relief seems to be justified under Smith v. Smith, 110 W. Va. 82, 157 S. E. 37. The only controversy remaining is as to the allowance to the defendant of the additional sum of $1200.
The allegation in the defendant's answer and crossbill upon which this part of the decree is predicated is as follows:
"Your respondent further alleges that she and the plaintiff own considerable real estate jointly, situate in Valley Head, in Mingo District, Randolph County, West Virginia, and that the Plaintiff owns other real estate which stands in his own name, situate therein, and that he likewise is indebted to her in the amount of $175.00 for borrowed money; and she now here asks that a fair and equitable settlement of their property rights be made herein and that a decree be entered herein in her favor for said sum of $175.00 and proper interest."
Her prayer as to this branch of her cross-bill is " (e) That a settlement of the property rights of the parties be made herein", and for general relief.
It is to be noted that the defendant claims to be a joint owner with the plaintiff only in certain real estate, not in any personalty, and that she asks for a money decree only for the said sum of $175. Hence, the evidence in the record by which she claims an interest in certain personalty is outside the case and will be disregarded.
What statutory basis is there for this monetary decree in favor of the defendant? Prior to the Code of 1931 our statute provided that,
"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, * * *." Code, 1923, Chapter 64, Section 11.
But by the Code of 1931 this provision was modified, and it survives in its modified form only in the last sentence of Section 15, Article 2, Chapter 48, relating exclusively to alimony and the custody and maintenance of children, and reads 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."
Since the court allowed no alimony in the case and awarded the custody of the child to the plaintiff, this section of the statute does not authorize any decree to the defendant relating to the property of the parties.
Certain evidence offered by the defendant, however, is apparently based on the theory that the plaintiff holds exclusive title to certain real estate as to which the defendant claims some equitable or other interest, and certain personalty which she claims to own outright. But nowhere does she plead such facts or claim. There is a statute, however, under which such a claim might have been...
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