Roig v. Roig
| Decision Date | 02 December 1987 |
| Docket Number | No. 17155,17155 |
| Citation | 364 S.E.2d 794,178 W.Va. 781 |
| Parties | Carmen A. ROIG v. George M. ROIG. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "The findings of the trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence." Syllabus Point 5, Lieberman v. Lieberman, 142 W.Va. 716, 98 S.E.2d 275 (1957).
2. A gift made under the Uniform Gifts to Minors Act, W.Va.Code, 36-7-1 [1971], et seq. is irrevocable and conveys to the minor indefeasibly vested legal title to the security, life insurance policy, annuity contract or money given.
3. When the issue in a divorce proceeding is the equitable distribution of marital property, both parties have the burden of presenting competent evidence to the trial court concerning the value of such property.
4. Syllabus Point 2 of Hamstead v. Hamstead, --- W.Va. ----, 357 S.E.2d 216 (1987), which says: "Under W.Va.Code, 48-2-1(e)(1) [1986], property and earnings acquired by either spouse during a marriage, except property specifically excluded by Code, 48-2-1(f) [1986], is 'marital property' for purposes of equitable distribution at the time of divorce notwithstanding that the assets have been acquired by one spouse and 'given' to the other," is overruled. W.Va.Code, 48-3-10 [1984] implies that the word "gift" in Code, 48-2-1(e)(1) [1986], includes gifts between spouses.
W. Dean DeLaMater, Weirton, for Carmen Roig.
Jeremy C. McCamic, Wheeling, for George Roig.
This divorce case involves a wealthy doctor and his wife. The wife's appeal asks us to pick every imaginable nit from a court order awarding her $4,000 a month in alimony and child support and $365,287 as her half of the marital property. Although the appellant urges 15 assignments of error divided into twice again as many sub-assignments, we dispose of all but three specific assignments and one general assignment by repairing to the ancient wisdom of Syllabus Point 5 of Lieberman v. Lieberman, 142 W.Va. 716, 98 S.E.2d 275 (1957):
The findings of the trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence.
George and Carmen Roig were married in 1962 when Carmen was employed as a hospital laboratory technician and George was waiting to continue his medical studies in Spain. From 1962 until 1972, when Dr. Roig finished his residency in anesthesiology, Mrs. Roig earned more than Dr. Roig and, in addition to caring for their two children, Mrs. Roig worked to support the family. In 1972, the couple moved from Chicago to Weirton, and Mrs. Roig became a full time housewife and mother. Sometime in 1975 the parties built a house with a mortgage of $110,000. Mrs. Roig ran the household (with some hired help) and cared for the three children, while Dr. Roig supported the family on a steadily rising income from his medical practice. In 1974 Dr. Roig earned $96,476; by 1983, the last full year for which there is an income figure, Dr. Roig earned $173,450.
The case before us began in October, 1982 when Mrs. Roig filed for separate maintenance on the grounds of cruelty. Dr. Roig responded a year later with a counterclaim for divorce based on one year voluntary separation. After exhaustive hearings, the circuit court granted Mrs. Roig $3,000 a month in permanent alimony and $1,000 a month in child support for two minor children in addition to $365,287 as Mrs. Roig's half of the marital property. Dr. Roig was also required to keep existing health insurance policies for Mrs. Roig and the minor children in effect and was required to make tuition payments for the two children during high school and college.
We find that the circuit court made two significant errors of law relating to the evaluation of the marital property that require reversal. In addition, there is one assignment of error challenging a ruling by the circuit court that was correct under our own earlier interpretation of the law, but that must be reversed because we erred ourselves in an earlier case. We shall simply address these issues seriatim.
Appellant assigns as error the trial court's inclusion of three Shearson Accounts with an estimated value of $50,000 held by the appellant as custodian for each of the three children under the West Virginia Uniform Gift to Minors Act as marital property. Each of these accounts clearly stated that the children were the equitable owners, yet the circuit court found that the accounts were marital assets and allocated them to the appellant as part of her distributive share. We agree with appellant that this ruling contravenes W.Va.Code, 36-7-3 [1971] 1 which provides:
(a) A gift made in the manner prescribed in this article is irrevocable and conveys to the minor indefeasibly vested legal title to the security, life insurance policy, annuity contract or money given, but no guardian of the minor has any right, power, duty or authority with respect to the custodial property except as provided in this article.
Unfortunately, the trial court did exactly what W.Va.Code, 36-7-3(a) [1971] says cannot be done--by his order the trial court said that these accounts belong to the parents instead of the children.
Indeed, there is evidence in the record that Mrs. Roig used the interest on these accounts to purchase a fur coat for herself and for other of her expenses. Whether that was proper is an issue that Mrs. Roig may one day fight about with the children; however, the custodian's use of the interest on the accounts does not convert them from the children's separate property to the custodian's property. Therefore, we find that the court erred in declaring the Shearson Accounts marital property.
Next the appellant asserts that the trial court erred in reducing the combined value of two pension plans and a profit sharing plan in order to take into consideration Dr. Roig's deferred income tax liabilities. The pension plans worth $114,981 were discounted $66,897 and the profit sharing plan worth $181,894 was discounted $85,979 for inchoate tax liabilities. Unfortunately, it is almost impossible to understand what the expert witnesses on the pension and profit sharing plan issue were talking about from the record before us. Apparently the appellee's contention below was that if the plans were liquidated at the time of divorce, tax penalties would be payable under the Internal Revenue Code because of termination of the plan before retirement. Alternatively, appellee's position was that sometime in the future appellee would be required to pay income tax at the 50 percent marginal rate on his withdrawals from the plan. For these reasons appellee asserted that the actual value of the pension and profit sharing plans was substantially less than the cash balance of the plans at the time of divorce.
Indeed, there may be actuarial merit to the appellee's contentions in this regard, but there was no incisive analysis of the relationship between tax deferred accumulations of interest earnings on money that, but for the pension plan, would be paid to the federal government in taxes immediately, and the ultimate tax liability. Although the trial judge's adjustment in the value of the pension plan may be accurate, it is not supported by the weight of the evidence. Yet, ironically, it is not contradicted by the weight of the evidence either, and we are reluctant to speculate on what the proper evaluation should be.
The pension assets constitute a significant percentage of the total marital estate and it was error for the trial court not to demand accurate, methodologically sound, expert testimony on the present value of the right to receive pensions. Modern divorce cases are different from traditional civil lawsuits. When a court is asked to divide property equitably to allow the parties to go their separate ways there is no plaintiff or defendant for the purposes of allocating the burden of proof. When a divorce proceeding focuses on the distribution of property, as opposed to the assessment of fault, the burden of proof is upon both parties to present evidence that will assist the court in reaching a sound result. Accordingly, we remand this case for a new...
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