Pierce v. Pierce, 14200

• Decision Date: 10 February 1981
• Docket Number: No. 14200,14200
• Citation: 166 W.Va. 389,274 S.E.2d 514
• Court: West Virginia Supreme Court
• Parties: Ruby PIERCE v. Henry L. PIERCE.

Page 514

274 S.E.2d 514

166 W.Va. 389

Ruby PIERCE v. Henry L. PIERCE.

No. 14200.

Supreme Court of Appeals of West Virginia.

Feb. 10, 1981.

Syllabus by the Court

1. "In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law." Syl. pt. 1, Burks v. McNeel, W.Va., 264 S.E.2d 651 (1980).

2. "Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately his conclusions of law thereon before the entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance." Syl. pt. 6, Parkway Fuel Service, Inc. v. Pauley, W.Va., 220 S.E.2d 439 (1975), quoting, Syl. pt. 1, Commonwealth Tire Company v. Tri-State Tire Company, 156 W.Va. 351, 193 S.E.2d 544 (1972).

Kingery & Nibert and David Nibert, Point Pleasant, for appellant.

Duttine, Thomas, Covert, King & Riffee and Gary King, St. Albans, for appellee.

PER CURIAM:

This is an appeal by Henry L. Pierce from a final divorce decree entered by the Circuit Court of Mason County on October 21, 1976, granting a divorce to his wife upon the finding that he was guilty of cruel and inhuman treatment. The trial court awarded the wife the use and ownership of the household furnishings of the parties, the use and ownership of a 1971 Chrysler automobile, a one-half undivided interest in the mobile home which served as the parties' marital domicile, and $100.00 per week alimony which was to be reduced by one-half of the mobile home payment. ¹ The appellant-husband questions the trial court's authority to make such awards and contends the alimony award is excessive.

We first consider the household furnishings award. The wife agrees that the case should be remanded for further proceedings on the issue of the ownership of the household furnishings under W.Va. Code 48-2-21, since there was no evidence presented on the issue. We agree that the trial court erred in awarding the wife the ownership of all the household furnishings because even when a specific request for such property is made under W.Va. Code 48-2-21, the court has the power to award a party only such items as he owns and which are in the control or possession of the other party. Murredu v. Murredu, W.Va., 236 S.E.2d 452 (1977). Here, no evidence was presented as to the ownership of the household furnishings. On remand the parties may petition the trial court under W.Va. Code 48-2-21, to determine the ownership and control of specific household furnishings.

We also conclude that the trial court erred in ordering the husband to transfer the automobile to the wife. Our recent decision in McKinney v. Kingdon, W.Va., 251 S.E.2d 216 (1979), holding that a spouse in a divorce action may be ordered to give the other possession and use of an automobile and to convey its title, is distinguishable. In McKinney, the wife was awarded possession and title to one of the couple's two automobiles but this was only "for the purpose of making effectual that part of the final order granting to her custody of the minor children." Id., 251 S.E.2d at 219. In McKinney the Court found that the wife was given the use of one of the cars as an incident to her transporting the children and accomplishing other trips in connection with the necessities incident to their support. Here, there are no minor children involved and we, therefore, find that the court's award of the automobile does not come within the McKinney doctrine. On remand, however, the wife may petition under W.Va. Code 48-2-21, if the facts warrant, to establish an equitable ownership interest in the automobile. Because of the acknowledged error of law in connection with the personal property, and because of the erroneous legal conclusion as to the automobile, the court's order must be reversed. Syl. pt. 1, Burks v. McNeel, W.Va., 264 S.E.2d 651 (1980).

As to the interest in the mobile home awarded to the wife, appellant's principal argument is that our law does not provide for the transfer of property from one spouse to the other without evidence that the property is owned by one spouse and is in the...