Simmons v. Simmons, 15066
| Citation | 171 W.Va. 170,298 S.E.2d 144 |
| Decision Date | 24 November 1982 |
| Docket Number | No. 15066,15066 |
| Court | Supreme Court of West Virginia |
| Parties | Lena Y. SIMMONS v. Bert C. SIMMONS. |
Syllabus by the Court
1. "Code, 48-2-15, confers on a court in a divorce suit power to make any order or decree concerning the estate of the parties, or either of them, as it may deem expedient, only for the purpose of making effectual any order or decree made in the case relating to the maintenance of the parties, or the custody and maintenance of their children." Syllabus Point 1, McKinney v. Kingdon, 162 W.Va. 319, 251 S.E.2d 216 (1978).
2. "Under the provisions of W.Va.Code, 48-2-21, in the absence of a specific request for possession of enumerated personal property, the trial court is not authorized to award ownership of personal property in a divorce action." Syllabus Point 3, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977).
3. "Prior to the death of a donor depositor, a rebuttable presumption exists under the provisions of Code, 1931, 31A-4-33, as amended, that the ownership of the funds is joint, a presumption which may be overcome by competent evidence." Syllabus Point 3, Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974).
Richard W. Cardot, Elkins, for appellant.
John F. Brown, Jr., Brown, Harner & Busch, Elkins, for appellee.
The appellant, Lena Y. Simmons, appeals from a final order of the Circuit Court of Randolph County in which the court ruled that the ownership of personal property claimed by the appellant must be determined in a suit separate from the divorce proceeding involved in the instant appeal. Specifically, the appellant complains that the trial court erred when it refused to hear testimony concerning her alleged ownership of personal and household property in the possession of the appellee, Bert C. Simmons. Additionally, the appellant protests the trial court's finding that certain joint checking and savings accounts were the sole property of the appellee. We agree with the appellant that she is entitled to a determination of the ownership of the disputed personal and household property and that the trial court erred in its finding that the joint banking accounts were the sole property of the appellee. We therefore reverse the decision of the lower court and remand this case for a proper determination of these issues.
The appellant and the appellee were granted a divorce after 45 years of marriage on the grounds of irreconcilable differences, see W.Va.Code § 48-2-4 (1980 Replacement Vol.), on November 5, 1979. Several hearings were held on the issues of alimony and property distribution. The appellant claimed that many of the household furnishings at the former marital residence, where the appellee continued to live, belonged to her. Additionally, the appellant claimed to have an interest in three joint checking and savings accounts totalling $19,908.25 which the appellee claimed to be his separate property. The appellee had withdrawn all the money from these accounts in April and May of 1979.
At one of the hearings, both Mr. and Mrs. Simmons testified as to their contributions into these contested accounts, but the trial court found that "the interest in the joint savings and checking accounts belong [sic] solely to the defendant and plaintiff is not entitled to interest in, nor any of the proceeds thereto." Additionally, the trial court refused to elicit answers from the appellee as to the whereabouts of the money withdrawn from the accounts, even though the appellee failed to list the funds among his assets and protested continually that he was unable to pay the $300 per month alimony awarded to the appellant. 1
Despite its willingness to make a determination on the ownership of the bank accounts, the trial court refused to hear testimony concerning the ownership of the household property claimed by the appellee. The trial judge repeatedly noted that the ownership of this property would have to be determined in a separate suit.
The primary issue in this appeal is the propriety of resolving property ownership disputes in conjunction with a suit for divorce. Two sources of statutory power exist for resolving such disputes in divorce proceedings. The first is found in W.Va.Code § 48-2-15 (1980 Replacement Vol.) which governs alimony, maintenance and custody of children. We discussed this statute in Syllabus Point 1, McKinney v. Kingdon, 162 W.Va. 319, 251 S.E.2d 216 (1978), where we stated:
Code, 48-2-15, confers on a court in a divorce suit power to make any order or decree concerning the estate of the parties, or either of them, as it may deem expedient, only for the purpose of making effectual any order or decree made in the case relating to the maintenance of the parties, or the custody and maintenance of their children. (Citations omitted.)
The second statutory basis for adjudicating property ownership in divorce actions is found in W.Va.Code § 48-2-21 (1980 Replacement Vol.):
Upon decreeing the annulment of a marriage, or upon decreeing a divorce, the court shall have power to award to either of the parties whatever of his or her property, real or personal, may be in the possession, or under the control, or in the name, of the other, and to compel a transfer or conveyance thereof as in other cases of chancery.
Thus, the Legislature has granted to trial courts the power to determine the ownership of property in divorce actions. However, as noted in Syllabus Point 3, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977), the trial court may not enter into such disputes sua sponte:
Under the provisions of W.Va.Code, 48-2-21, in the absence of a specific request for possession of enumerated personal property, the trial court is not authorized to award ownership of personal property in a divorce action.
It is apparent under the facts before us that the trial court's refusal to determine the ownership of the specified items of personal and household property requested by the appellant contradicts W.Va.Code § 48- 2-21 and our decision in Murredu. Furthermore, the trial court's ruling that separate proceedings are required to resolve the question of the ownership of the disputed property also contradicts our recent decision in Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709 (1981),...
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