Prather v. Prather

• Decision Date: 07 July 1983
• Docket Number: No. 15728,15728
• Citation: 305 S.E.2d 304,172 W.Va. 348
• Parties: Mary Kathryn PRATHER v. Charles H. PRATHER.
• Court: West Virginia Supreme Court

Page 304

305 S.E.2d 304

172 W.Va. 348

Mary Kathryn PRATHER v. Charles H. PRATHER.

No. 15728.

Supreme Court of Appeals of West Virginia.

July 7, 1983.

Syllabus by the Court

1. "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." Syllabus, Smith v. Smith, 134 W.Va. 448, 59 S.E.2d 894 (1950).

2. As a general rule, the law does not require a showing of fraud or wrongful disposition of property in order to impose a trust on personal property for security for payment of child support or alimony obligations. However, there is a necessity of demonstrating some significant circumstance that would justify the imposition of such trust. A trial court must make such findings before ordering the trust imposed.

3. "While as a general rule alimony does not survive the death of the payor former spouse, where there are compelling equitable considerations which militate in favor of making alimony a charge against a deceased former spouse's estate, the circuit court has the power to make such an award pursuant to the same authority which entitles a court of equity to modify any alimony award to reflect changed circumstances." Syllabus Point 2, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978).

4. In order for alimony to be binding on an estate the divorce decree or property settlement agreement if it is ratified or approved in the court decree must specifically state that the obligation is binding on the estate.

5. A final divorce decree does not preclude a circuit court from subsequently determining upon proper motion that there is an arrearage on temporary alimony or child support that has occurred before the entry of the final decree.

Thomas E. Myles, Fayetteville, for appellee.

James M. Cagle, Charleston, for appellant.

MILLER, Justice:

This is an appeal by Charles H. Prather from a final divorce order entered by the Circuit Court of Fayette County. The order impressed a trust on a $30,000 certificate of deposit registered in Mr. Prather's name to secure his payment of alimony and medical expenses to his former wife. Mr. Prather contends that the circuit court erred in impressing the trust on the certificate. He also claims that the circuit court erred in holding him answerable in contempt for failure to pay temporary alimony or alimony pendente lite, when the hearing occurred after the entry of the court's final divorce decree. We find that the Circuit Court of Fayette County had the power to impress the trust but because its decree was ambiguous, we remand the case. We also affirm the authority of the circuit court to render the judgment for back temporary alimony.

Mr. Prather and his wife had been married for thirty-eight years when this proceeding was instituted. By order dated April 29, 1980, the circuit court directed that Mr. Prather pay his wife $475 per month as temporary alimony. The court also directed that he maintain hospitalization insurance on her and that he pay certain other medical expenses incurred by her. On March 2, 1981, Mrs. Prather moved that her husband be held in contempt for failing to make the payments required by the April 29, 1980, order. Before this question was resolved, hearings were held in the final divorce proceeding.

At the final hearing, evidence was introduced showing that when Mr. Prather retired from his employment with the New River Company he had chosen to receive a lump sum distribution of $47,000 in lieu of a pension. From the lump sum retirement payment, he had set aside the sum of $17,000 for potential tax liability, and with the remaining $30,000 he had purchased a certificate of deposit from a local savings and loan company. Evidence was also introduced showing that Mrs. Prather was a housewife, that she was fifty-five years of age, and that during her thirty-eight years of marriage she had not been gainfully employed. The evidence indicated that she was in poor health and would likely need continuing medical care.

At the conclusion of the final hearing, the Circuit Court of Fayette County awarded a divorce to Mrs. Prather and held that she was entitled to permanent alimony of $500 per month. The court directed Mr. Prather to pay necessary doctors' fees, hospital bills, and surgical expenses for his wife. ¹ The court also ordered that the certificate of deposit be impressed with a trust to secure the payment of permanent alimony and medical expenses ordered in favor of the wife. The trust was made binding on the husband's heirs and devisees. ²

The final divorce decree made no mention of the arrearages for temporary alimony nor of the contempt petition which had been filed to obtain those payments. The court subsequently held a hearing and concluded that the appellant had not complied with the temporary alimony order.

Mr. Prather claims that the trial court erred in ordering that his certificate of deposit should be impressed with a trust and making it binding on his estate. He argues that a trial court, in a domestic relations case, has authority only to impress a trust under W.Va.Code, 48-2-15 (1980), on one party's property to effectuate a decree of maintenance to prevent fraud or other wrongful disposition of property. ³

We do not believe that our law restricts the authority of a trial court to impress a trust to those situations involving fraud or other wrongful disposition of property. In the single Syllabus of Smith v. Smith, 134 W.Va. 448, 59 S.E.2d 894 (1950), we discussed the scope of this statute:

"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 Smith, we concluded that the trial court abused its discretion by directing that a cashier's check received by the husband from the sale of bonds be delivered to the general receiver of the court as security for payment of child support obligations. We concluded that the trial court abused its discretion since the amount impounded constituted "practically all of the savings of the parties at the time of the entry of the final decree." 134 W.Va. at 455, 59 S.E.2d at 898. Furthermore, we found that the husband "had indicated ... [no] disposition to avoid personal responsibility of support and maintenance of his two children." 134 W.Va. at 455, 59 S.E.2d at 898-99.

Other jurisdictions with general statutes like ours have followed the Smith rationale and have recognized the power to impress a trust on personal property to secure alimony or child support payments in certain situations. E.g., Rosenthal v. Rosenthal, 197 Cal.App.2d 289, 17 Cal.Rptr. 186 (1961) (alimony); Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962), reh. denied, 85 Idaho 148, 376 P.2d 368, 3 A.L.R.3d 1167 (1962) (child support); Atkinson v. Atkinson, 82 Ill.App.3d 617, 37 Ill.Dec. 829, 402 N.E.2d 831 (1980), cert. denied, 456 U.S. 905, 102 S.Ct. 1751, 72 L.Ed.2d 162 (1982) (child support); Kuyper v. Kuyper, 244 Iowa 1, 55 N.W.2d 485 (1952) (alimony and child support); Hemman v. Hemman, 251 S.W. 313 (Tex.Civ.App.1923) (child support); Abel v. Abel, 47 Wash.2d 816, 289 P.2d 724 (1955); Annot., 3 A.L.R.3d 1170 (1965). ⁴ In most of these cases, the courts have not elaborated any guidelines for determining when a trust should be imposed. In Atkinson v. Atkinson, supra, the court made this statement which is reminiscent of the language used by this Court in Smith v. Smith, supra:

"Nevertheless, we believe imposition of a section 503(d) trust is inappropriate in the absence of evidence showing some need to protect the interests of the children. See In re Marriage of Olsher (1979), 78 Ill.App.3d 627, 34 Ill.Dec. 32, 397 N.E.2d 488.

"Although Jeff Atkinson's assets have been reduced, there is no evidence that this was caused by irresponsible actions. Nor was there any evidence to show that Jeff Atkinson would be likely to ignore his daughters' financial needs in the future. The evidence presented below demonstrated that Jeff Atkinson has been a fit, devoted and responsible parent. Under these circumstances we conclude the trial court exceeded the scope of its discretion in ordering the establishment of a trust fund for the benefit of the children." 82 Ill.App.3d at 627, 37 Ill.Dec. at 836, 402 N.E.2d at 838.

It seems clear from Smith and the other cases that we have cited that, as a general rule, the law does not require a showing of fraud or wrongful disposition of property in order to impose a trust on personal property for security for payment of child support or alimony obligations. However, there is a necessity of demonstrating some significant circumstance that would justify the imposition of such trust. A trial court must make such findings before ordering the trust imposed.

In the present case, we do not have a complete record of the proceedings below. It appears that Mr. Prather had failed to make some temporary alimony payments, but facts definitely demonstrating this point are not in the record. We can envision situations where the failure to pay temporary alimony or child support payments would be sufficient for utilization of a security trust. Property shifting or concealment of assets in anticipation of the divorce might also warrant application of a trust. In view of our remand, the circuit court is entitled to review the trust question and place appropriate findings in the record if it is to be continued.

Another problem presented in this case is whether it was proper to...