Province v. Province
| Decision Date | 17 May 1996 |
| Docket Number | No. 22689,22689 |
| Citation | 473 S.E.2d 894,196 W.Va. 473 |
| Court | West Virginia Supreme Court |
| Parties | William L. PROVINCE, Plaintiff Below, Appellee, v. Tammy M. PROVINCE, Defendant Below, Appellant, and Michael L. PROVINCE and Linda D. Province, Intervenors Below, Appellees, v. William L. PROVINCE and Tammy M. Province, Defendants Below, Tammy M. Province, Appellant. |
1. In reviewing a circuit court's certification under Rule 54(b) of the West Virginia Rules of Civil Procedure, this Court applies a two-prong test. First, we scrutinize de novo the circuit court's evaluation of the interrelationship of the claims, in order to decide whether the circuit court completely disposed of one or more claims, which is a prerequisite for an appeal under this rule. As to the second prong of the inquiry under the rule--whether there is any just reason for delay--this Court accords the circuit court's determination considerably more deference than its first-prong determination. The circuit court's assessment that there is "no just reason for delay" will not be disturbed unless the circuit court's conclusion was clearly unreasonable, because the task of balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case.
2. Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
3. " Syllabus Point 3, Rodgers v. Rodgers, 184 W.Va. 82, 399 S.E.2d 664 (1990).
James M. Powell, Hardman & Powell, Parkersburg, for Appellant Tammy M. Province.
Robert S. Fluharty, Fluharty & Townsend, Parkersburg, for Appellees Michael W. Province and Linda D. Province.
In this divorce proceeding, Tammy M. Province, the defendant below and appellant herein, appeals the order of the Circuit Court of Wood County entered April 15, 1994. 1 In its order, the circuit court adopted the special commissioner's recommended order of December 20, 1993, concerning property distribution. The defendant contends that a 50-acre farm held in trust for her and the plaintiff, together with rental proceeds from a lease agreement on that property should have been included as part of the marital estate for equitable distribution purposes.
[196 W.Va. 476] She maintains this property was conveyed to the plaintiff's brother and sister-in-law in "paper title" only, with the understanding that the conveyance was for the purpose of protecting the property from creditors and the property would be reconveyed to the plaintiff and the defendant when their financial situation improved. The special commissioner refused to hear evidence on this issue presumably because the trust claim was barred by the statute of limitations. The defendant asserts the commissioner erred in refusing to hear this evidence. We agree.
William Province, the plaintiff below and one of the appellees herein, 2 and Tammy Province were married in 1978 and had two children, Billie Jo Province, born in October, 1978, and Jesse William Province, born in November, 1984. This action arises out of William Province's divorce petition filed in the Circuit Court of Wood County in 1990. The relevant facts are as follows.
In 1980, the plaintiff and defendant purchased a 62-acre farm in Mineral Wells, West Virginia, which is the subject of this appeal. By general warranty deed dated January 7, 1985, the plaintiff and the defendant conveyed fifty acres of that property to Michael and Linda Province, the plaintiff's brother and sister-in-law. 3 Following the conveyance, the plaintiff and the defendant continued to live in their home which was part of the property conveyed, and continued to operate the dairy farm located on the property. On January 22, 1985, the plaintiff and Michael Province entered into a written partnership agreement concerning the farm. The agreement provided the plaintiff would supply the labor and Michael Province would supply the farm real estate, that being the same property conveyed by the plaintiff and defendant to Michael and Linda Province on January 7, 1985. 4
On September 19, 1988, the two couples entered into an agreement to lease a 15-acre wood lot on the property to the Mead Corporation. The lease agreement provided that the lessee would pay $12,500 semi-annually to the plaintiff and the defendant, as the "parties in possession." Prior to the filing of the divorce, all lease payments were received by the plaintiff and defendant together.
William Province filed this divorce proceeding in August of 1990. A preliminary order was entered pursuant to a hearing before a family law master on September 25, 1990. Paragraph 11 of that order states: "Except as provided hereinabove, the parties shall each be and they are hereby mutually enjoined and restrained from transferring possession, ownership, or otherwise dissipating, encumbering, or disposing of any of their real or personal assets until further Order of Court." In apparent contravention of that order, the plaintiff used two Mead lease checks, payable on October 1, 1990, and April 1, 1991, to pay one Opal Finch, purportedly as repayment of marital debts. 5
The defendant subsequently filed a contempt petition complaining, among other things, that the plaintiff had spent these rental proceeds, disposed of other marital property, and failed to pay alimony and child support payments to the defendant. 6 From October 1991 to April 1993, when the lease to the Mead Corporation ended, the semi-annual rental checks were received by Richard Bush, counsel for plaintiff, as escrow agent. 7
[196 W.Va. 477] The circuit court by order of January 3, 1992, disposed of the contempt issue by ordering that the escrow agent pay to the defendant certain sums owed by the plaintiff, including unpaid alimony and child support.
On January 14, 1992, the plaintiff moved to refer the case to a special commissioner for all further proceedings on the issues of equitable distribution and alimony. 8 On January 21, 1992, Michael and Linda Province filed a motion to intervene arguing they were the owners of the property in question and were entitled to all lease payments on the property after April 1, 1991. 9 Both the plaintiff's motion for reference to a commissioner and the motion to intervene were heard on February 3, 1992, and both were granted by order of the circuit court.
Hearings on equitable distribution and alimony were held before the special commissioner on April 2, 1993; June 21, 1993; and August 30, 1993. No transcript was made of these hearings, but apparently the special commissioner refused to allow the defendant to introduce evidence to show the intervenors held title to the land in trust for the defendant and the plaintiff. On September 8, 1993, the defendant filed a proffer of evidence which was intended to show that the conveyance of the property to the intervenors was made with the understanding that the intervenors were merely "paper title holders" and all subsequent acts of the parties show the actual legal owners of the real estate are the plaintiff and the defendant. 10
In his recommended order of December 20, 1993, the commissioner said, in pertinent part, that one-half of the rent checks paid to the plaintiff and defendant by the Mead Corporation prior to the divorce was credited to the intervenors' "obligation" to the plaintiff and defendant. He further found that each of the two couples have a vested interest in and own 50 percent of the lease proceeds paid subsequent to the filing of the divorce and, therefore, half of those proceeds was a marital asset of the plaintiff and defendant. The basis for the commissioner's findings was that the dissolution of the partnership By order entered April 15, 1994, the circuit court adopted the findings of fact and conclusions of law of the special commissioner and granted the plaintiff and defendant a divorce. The defendant challenges the special commissioner's conclusion that her claim for reconveyance of the trust property is time barred. We will address her contentions below.
[196 W.Va. 478] between Michael Province and the plaintiff should not operate to the detriment of the defendant, who had a vested interest in a portion of the lease proceeds, but had no control over the dissolution of the partnership. The special commissioner held the defendant's claim for reconveyance was barred by the statute of limitations.
The question raised on this appeal is whether the lower tribunals committed error by excluding evidence regarding the establishment of a trust in the property conveyed to the intervenors by the plaintiff and the defendant. In determining whether this evidence was probative of any fact of consequence, we must address whether the claim of the defendant, Tammy M. Province, was barred by the statute of limitations or by the provisions of W. Va. Code, 36-1-4 (1931). Our review of the record shows that the evidence was wrongfully excluded. Thus, we remand this case with specific instructions.
There is a threshold problem. The parties assume we have jurisdiction to hear the appeal from the April 15, 1994 order of the circuit court...
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