Purnell v. Purnell

• Decision Date: 17 July 1981
• Docket Number: No. 15103,15103
• Citation: 167 W.Va. 715,280 S.E.2d 281
• Parties: Douglas G. PURNELL v. Evelyn Louise PURNELL
• Court: West Virginia Supreme Court

Page 281

280 S.E.2d 281

167 W.Va. 715

Douglas G. PURNELL v.Evelyn Louise PURNELL

No. 15103.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

"Before a trial court may properly impress a constructive trust on property titled in the name of one spouse for the benefit of the other, the spouse seeking the trust must by a preponderance of the evidence: (1) overcome the presumption that there was a gift between the parties, and (2) show that he or she is otherwise entitled to the declaration of a constructive trust.Entitlement to a constructive trust requires: (a) a showing that the party transferred to his or her spouse money, property, or services which were actually used to procure property titled in the other spouse's name only; (b) that the transfer was induced by (i) fraud, (ii) duress, (iii) undue influence, (iv) mistake, (v) breach of implicit fidiciary duty, or (vi) that in light of the dissolution of the marriage the other spouse would be unjustly enriched by the transfer."Syl. pt. 4, Patterson v. Patterson, W.Va., 277 S.E.2d 709(1981).

Gilbert Wilkes, III, Martinsburg, for appellant.

Rice, Hannis & Douglas and Charles F. Printz, Jr., Martinsburg, for appellee.

PER CURIAM:

This is an appeal by Evelyn Louise Purnell from a divorce decree entered by the Circuit Court of Berkeley County on October 2, 1979.That decree awarded the appellant $40.00 per week alimony.The appellant contends that the amount of alimony awarded and the property settlement made by the court were inadequate and inequitable.We conclude that the facts contained in the record suggest that the alimony and property arrangement were inequitable, and we remand for further development of the record and decision of the case in accordance with our holding in Patterson v. Patterson, W.Va., 277 S.E.2d 709(1981).

The parties to this proceeding were married in Maryland in 1954.In 1963they purchased a dwelling house located in Martinsburg, West Virginia, which was originally titled in both their names as joint tenants with the right of survivorship.However, in 1974, because she feared that creditors' suits against her son would affect her interest in the property, the appellant transferred her interest to the appellee.

In 1977, the appellee, after moving out of the dwelling house, sued the appellant for divorce.In the course of the divorce proceedings she moved for the exclusive use and possession of the house.She made this motion in spite of the fact that the parties' children had been emancipated.

By its order dated October 2, 1979, the circuit court granted the parties a divorce on the ground that they had lived separate and apart for one year.The court's order also directed the appellee to pay the appellant $40.00 per week alimony and that he compensate her for her inchoate right of dower in the former marital domicile.

In the course of the divorce proceedings the appellant testified that she was forty-seven years of age and that she had suffered from, and been treated for, Weber-Christian disease for two years.She indicated that as a result of the disease nodules formed under the skin of her thighs and legs she was unable to work.She indicated that her income consisted of $61.00 per month in food stamps, $20.00 per week from her eldest son for room and board, $35.00 per week baby sitting, and additional money from her son for medicine.She estimated that her total expenses, if she had to leave the marital domicile, would be $870.00 per month (including a projected rent of $200.00 per month).

The appellee testified that he had been unaware of the appellant's medical condition, that she had been employed at several jobs in the course of their marriage, and that he had no reason to believe that she was unable to work.He indicated that his net monthly take-home pay was $732.40.A recent bi-weekly wage statement showed a savings deduction from gross pay of $100.00 which he testified was for a truck payment and a Christmas Club account.He stated that his monthly expenditures averaged $679.75 which included the joint deed of trust payment on the marital domicile and insurance payments and taxes on the house which totalled approximately $130.00 per month.

In this proceeding the appellant asserts that...