Sellitti v. Sellitti

• Citation: 453 S.E.2d 380,192 W.Va. 546
• Decision Date: 19 December 1994
• Docket Number: No. 22094,22094
• Parties: Patricia L. SELLITTI, Plaintiff Below, Appellant, v. Patsy SELLITTI, Defendant Below, Appellee.
• Court: Supreme Court of West Virginia

Page 380

453 S.E.2d 380

192 W.Va. 546

Patricia L. SELLITTI, Plaintiff Below, Appellant, v. Patsy SELLITTI, Defendant Below, Appellee.

No. 22094.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 14, 1994.

Decided Dec. 19, 1994.

Syllabus by the Court

1. "In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily enumerated factors, including: (1) monetary contributions to marital property such as employment income, other earnings, and funds which were separate property; (2) non-monetary contributions to marital property, such as homemaker services, child care services, labor performed without compensation, labor performed in the actual maintenance or improvement of tangible marital property, or labor performed in the management or investment of assets which are marital property; (3) the effect of the marriage on the income-earning abilities of the parties, such as contributions by either party to the education or training of the other party, or foregoing by either party of employment or education; or (4) conduct by either party that lessened the value of marital property. W.Va.Code § 48-2-32(c) (1986)." Syllabus point 1, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).

2. "A motion to reopen a case to permit the introduction of further evidence is addressed to the sound discretion of the trial court and the exercise of such discretion is not subject to review by an appellate court unless there has been an abuse thereof." Syllabus point 4, Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973).

3. " ' "Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).' Syllabus Point 2, Lambert v. Miller, W.Va. , 358 S.E.2d 785 (1987)." Syllabus point 2, Whittaker v. Whittaker, 180 W.Va. 57, 375 S.E.2d 421 (1988).

4. " ' "In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syllabus Point 1, Marcum v. Browning, W.Va. , 297 S.E.2d 204 [ (1982) ].... (Citations omitted.)' " Syllabus point 1, Wharton v. Wharton, 188 W.Va. 399, 424 S.E.2d 744 (1992).

5. "The purpose of W.Va.Code, 48-2-13(a)(4) (1986), is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees [incurred] [sic] during the course of the litigation." Syllabus point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

William J. Leon, Gianola, Leon & Barnum, Morgantown, for appellant.

Mark A. Colantonio, Frankovitch & Anetakis, Weirton, for appellee.

PER CURIAM:

The appellant in this divorce proceeding, Patricia L. Sellitti, claims that the Circuit Court of Hancock County erred in distributing marital property and in otherwise adjusting the financial relationships existing between herself and the appellee, her former husband, Patsy Sellitti. After reviewing the questions raised and the facts presented, this Court believes that certain of the appellant's claims are meritorious and that others are not. The judgment of the Circuit Court of Hancock County is, therefore, reversed in part and affirmed in part.

The parties in this case, Patricia L. Sellitti and Patsy Sellitti, Sr., were married in 1955 and thereafter resided in Weirton, Hancock County, West Virginia. During their marriage, they were self-employed and acquired substantial assets, including the Town House Motel in Weirton and a number of apartment buildings.

On August 10, 1989, the appellant sued her husband for divorce. Evidentiary hearings were conducted in the matter before a family law master on July 26, 1991, and on October 2, 1991. The family law master issued a recommended decision in the case concerning the equitable distribution of the parties' marital assets on February 18, 1992, and after various hearings the Circuit Court of Hancock County, on May 28, 1993, entered a very complicated final order granting the parties a divorce, making marital distribution of the parties' assets, and otherwise adjusting the parties' affairs.

In the present proceeding, the appellant challenges six aspects of the final order:

1. She claims that the circuit court erred in charging her with one-half of a sum of money which appellee, without her consent, voluntarily undertook to pay to the parties' emancipated son and his wife;

2. She claims that the circuit court erred by declaring that the pendente lite alimony award which she received during the prosecution of the divorce should constitute a set-off against her share of the marital assets;

3. She claims that the circuit court erred in allowing appellee to introduce a revised survey of the parties' apartment properties and in basing the allocation of the property on the revised plat;

4. She claims that the circuit court erred in refusing to award her alimony;

5. She claims that the circuit court allowed the appellee credit for unreasonable expenses in allocating portions of the parties' accrued business income; and

6. She claims that the circuit court erred in refusing to require the appellee to pay her attorney fees and costs incurred in the prosecution of the divorce proceeding.

The appellant's first claim is that the circuit court erred in charging her with half of a sum of money which appellee voluntarily undertook to pay to the parties' adult son and his wife.

It appears that in January, 1981, the parties sold their son and daughter-in-law one-half of a duplex for $40,000.00. Apparently, the parties financed this transaction. After paying approximately $15,000.00 on the transaction, the son and daughter-in-law decided to leave town. It appears that at this time the appellee, without the consent or concurrence of the appellant, agreed to reimburse the $15,000.00 which the son and daughter-in-law had paid.

In the subsequent divorce proceeding, the appellee requested that the court charge the appellant with $7,500.00, or one-half, of the amount which he had agreed to repay to the son and daughter-in-law. The court found this to be reasonable and stated:

The Court finds that it is fair, equitable and just that the Plaintiff share in the obligation of repayment to Patsy Kent Sellitti and Pamela Sellitti, the son and daughter-in-law of the parties. The Defendant is surely entitled to be reimbursed one half ( 1/2) of the amount he has heretofore paid and agreed to repay the son and the daughter-in-law.

Although this Court has recognized, generally, that "[i]n computing the value of any net asset [in a divorce proceeding], the indebtedness owed against such asset should ordinarily be deducted from its fair market value," in Downey v. Kamka, 189 W.Va. 141, 428 S.E.2d 769 (1993), the Court has also indicated that it was inappropriate for a court, in making a division of marital property, to charge debts incurred by one party to the marriage, outside of the marriage, to the other party.

In the present case, it appears that the debt in question was a debt incurred separately by the appellee apparently without the appellant's permission. Although the beneficiary of the debt was the appellant's adult son, the debt cannot appropriately be considered a marital debt, since it was apparently not incurred jointly by the parties and since it was not incurred for any apparent marital purpose. Nor can the debt appropriately be characterized as a debt assumed by the appellant.

In view of all this, and in line with the reasoning in Downey v. Kamka, supra, this Court believes that the trial court did not properly charge the debt to the appellant and, consequently, the trial court's order on this point must be reversed.

The appellant's next claim involves the circuit court's ruling on pendente lite alimony which the appellee had been ordered to pay during the pendency of the divorce.

In the final order in this case, the circuit court, in effect, found that pendente lite alimony, which the appellee had previously been ordered to pay, was a factor which could be considered in making, and which could support an unequal, division of the parties' marital assets.

West Virginia Code, 48-2-13, indicates that the purpose of temporary or pendente lite alimony is to provide for the maintenance of the recipient party during the pendency of the divorce proceedings. See Blackshere v. Blackshere, 111 W.Va. 213, 161 S.E. 27 (1931). There is nothing in that statute which authorizes a trial court to make an unequal distribution of marital assets because one party had been ordered to pay the other temporary alimony. Moreover, W.Va.Code, 48-2-32(c), the portion of the marital distribution statute which governs the distribution of assets in cases such as the present one, does not state that temporary alimony payments can be offset against marital assets.

In Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988), the Court indicated that when a trial court made any division of marital property other than an equal division, the court was required to make its unequal division on the specific basis of one of the factors enumerated in W.Va.Code, 48-2-32(c). In syllabus point 1 of Somerville, the Court stated:

In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily enumerated factors, including: (1) monetary contributions to marital property such as employment...