Segal v. Beard

• Decision Date: 19 April 1989
• Docket Number: No. 18378,18378
• Citation: 181 W.Va. 92,380 S.E.2d 444
• Court: West Virginia Supreme Court
• Parties: George Sumner SEGAL v. Margaret Jane Segal BEARD.

Page 444

380 S.E.2d 444

181 W.Va. 92

George Sumner SEGAL v. Margaret Jane Segal BEARD.

No. 18378 Supreme Court of Appeals of West Virginia.

April 19, 1989.

Syllabus by the Court

1. A family law master lacks jurisdiction to hear a petition for modification of an order when the modification proceeding does not involve child custody, child visitation, child support or spousal support. W.Va.Code, 48A-4-1(i)(4) [1986].

2. A circuit court lacks jurisdiction under W.Va.Code, 48-2-15(e) [1986] to modify a divorce decree when the modification proceeding does not involve alimony, child support or child custody.

3. The ten-day period for filing a petition for review of a family law master's recommended decision, W.Va.Code, 48A-4-7(a) [1986], is tolled until an aggrieved party is served with notice of the filing of the recommended decision. The family law master must serve notice of the filing of the recommended decision.

4. "Bringing or defending an action to promote or protect one's economic or property interests does not per se constitute bad faith, vexatious, wanton or oppressive conduct within the meaning of the exceptional rule in equity authorizing an award to the prevailing litigant of his or her reasonable attorney's fees as 'costs' of the action." Syl. pt. 4, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

Robert A. Yahn, Wheeling, for Margaret Jane Segal Beard.

Robin J. Davis, Hostler and Segal, Charleston, for George Sumner Segal.

McHUGH, Justice:

This appeal raises novel issues with respect to the subject matter jurisdiction of family law masters and with respect to notice of a family law master's recommended decision. This appeal also raises the issue of the subject matter jurisdiction of a circuit court in a proceeding to modify a divorce decree when the modification proceeding does not involve alimony, child support or child custody. We reverse the ruling in question for the reasons hereinafter set forth.

I

The appellant, Margaret Jane Segal Beard, and the appellee, George Sumner Segal, were divorced in April, 1984. The ground for the divorce was irreconcilable differences. No children were born of their marriage. The divorce decree "ratified" the parties' property settlement agreement and expressly "merged" that agreement into the divorce decree. ¹ In the property settlement agreement the appellant waived all rights to alimony, "past, present and future." The property settlement agreement was silent as to income tax liabilities of the parties and provided that the appellee was to permit the appellant to use a condominium located in Florida "for one or two weeks twice a year" for so long as the appellee maintained ownership thereof. The appellee and a third party, his business partner, were coowners of that condominium.

The appellee refused to permit the appellant to use the condominium in Florida for over a year after the divorce was final. The appellant then filed a petition for contempt of court. In ruling on the contempt petition the Circuit Court of Monongalia County ("the trial court") clarified the divorce decree and the property settlement agreement upon which it was based by setting specific periods for the appellant to use the condominium in Florida, specifically, two seven-to-ten-day periods, one commencing on the third Sunday in April and one commencing on the second Sunday in November.

A few weeks later, the appellee, in February, 1987, petitioned for modification of the divorce decree. The appellee sought a change in the periods during which the appellant could use the condominium in Florida, alleging that her use of the condominium in Florida in November interfered with the peak rental period.

The appellee also sought in his petition for modification that the court hold the appellant responsible for half of a federal income tax liability of $34,923.08, for the years 1976 through 1979, which was during the parties' marriage. The appellee had received notice of and had paid the assessment of the tax deficiency (for disallowed deductions) after entry of the divorce decree.

The appellant answered the appellee's petition for modification. She asserted lack of personal jurisdiction on the ground that there had not been personal service of that petition in New York where she resides. She also asserted that neither the family law master nor the circuit court had subject matter jurisdiction under the divorce statutes to hear the matters pertaining to modification of the use of the real property in question and pertaining to the federal income tax liabilities of the parties, for neither of those matters involved alimony or child custody, child support or visitation. She also asked for recovery of reasonable attorney's fees of $500.00, due to the lack of personal and subject matter jurisdiction.

The appellee's petition for modification was eventually brought on for hearing before a family law master on August 10, 1987. The appellant was not personally present at the hearing and her attorney had another attorney, not associated with him, to make a special appearance to contest jurisdiction. That substitute attorney left the hearing upon learning that the family law master was going to hear evidence on the merits and not on jurisdiction.

After the hearing the appellee's attorney, on behalf of the family law master, prepared a proposed recommended decision and a proposed court order, both granting the relief requested by the appellee, that is, imposing upon the appellant liability for half of the federal income tax deficiency in question as well as changing the periods during which the appellant was to use the Florida condominium from stated times in April and November to stated times in May and October. ²

The appellee's attorney mailed to the appellant's attorney a copy of the proposed recommended decision and of the initial draft of the proposed court order. This mailing was on August 13, 1987. ³ The recommended decision was filed by the family law master on or after September 8, 1987, but the appellant's attorney was not notified of the filing until a date not specified in the record.

On September 22, 1987, the appellant's attorney served and filed a motion for reconsideration of the family law master's recommended decision. After receiving no ruling on such motion, the appellant's attorney, on October 2, 1987, served and filed a petition for review by the trial court of the master's recommended decision. The trial court subsequently adopted the recommended decision of the family law master, without specifying its reasons for agreeing with such decision.

II

The first assignment of error is that the family law master lacked jurisdiction to hear a petition for modification of an order when the modification proceeding does not involve spousal support or child support, child custody or child visitation. We agree.

W.Va.Code, 48A-4-1(i)(4) [1986] provides for the jurisdiction of a family law master in a modification proceeding:

(i) A circuit court or the chief judge thereof shall refer to the master the following matters for hearing to be conducted pursuant to section two of this article:

....

(4) All petitions for modification of an order involving child custody, child visitation, child support or spousal support filed after the first day of December, one thousand nine hundred eighty-six[.]

The jurisdiction of a family law master is purely statutory; he or she has no inherent powers. Cf. Starcher v. Crabtree, 176 W.Va. 707, 708, 348 S.E.2d 293, 294 (1986), and State ex rel. Watson v. Rodgers, 129 W.Va. 174, 176, 39 S.E.2d 268, 269 (1946) (circuit courts have no inherent powers in divorce cases, but, rather, purely statutory powers in such cases). It is clear that the powers possessed by a family law master are restricted to those conferred by statute. First, a "circuit court shall not follow the recommendation, findings, and conclusions of a master found to be: ... (3) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.]" W.Va.Code, 48A-4-10(c) [1986]. Second, the relatively limited grant of powers to a family law master in W.Va.Code, 48A-4-1(i) [1986] is in contrast with the broad grant of powers to a divorce commissioner in W.Va.Code, 48-2-25 [1969]. ⁴ Third, the provisions on family law masters are part of the Family Obligations Enforcement Act, ⁵ the purpose of which is to improve and facilitate the enforcement of child and spousal support obligations, especially child support. ⁶

The appellee argues that certain language in W.Va.Code, 48A-4-1(i)(3) [1986] supports his position that the family law master had jurisdiction in this case with respect to modifying the divorce decree to change the appellant's use of the property in question and with respect to modifying the divorce decree to impose upon the appellant liability for half of the federal income tax deficiency. ⁷ We disagree with the appellee's argument. The appellee's characterization of this paragraph is not accurate. It does not authorize a circuit court to refer "domestic matters" (the appellee's language) to a family law master. It, instead, authorizes a circuit court to refer to a family law master motions for pendente lite relief affecting child custody, visitation, child support or spousal support. This paragraph obviously has nothing to say about the powers of a family law master in a modification proceeding.

The appellee's argument that W.Va.Code, 48A-4-2(d) [1986] empowers a family law master to hear the matters in question in a modification proceeding is not sound. The appellee relies upon this language in section 2(d): "In determining claims for money due or the amount of payments to be made, when a party will not be prejudiced thereby, the master may adopt procedures for the submission of all or part of the evidence in written form." W.Va.Code, 48A-4-2 [1986] confers no jurisdiction upon a family law master; it merely sets forth...