Simmons v. Simmons

• Citation: 175 W.Va. 3,330 S.E.2d 325
• Decision Date: 10 May 1985
• Docket Number: No. 16233,16233
• Parties: Lena Y. SIMMONS v. Bert C. SIMMONS.
• Court: Supreme Court of West Virginia

Page 325

330 S.E.2d 325

175 W.Va. 3

Lena Y. SIMMONS v. Bert C. SIMMONS.

No. 16233.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 29, 1985.

Decided May 10, 1985.

Syllabus by the Court

"Though a decree for alimony ... may be enforced by execution, it is a decree not merely for the payment of money, but for the payment of money in discharge of the high marital duty of maintenance, wherefore it may be enforced by attachment for contempt also." Syllabus Point 4, Smith v. Smith, 81 W.Va. 761, 95 S.E. 199 (1918).

Richard W. Cardot, Elkins, for appellant.

John F. Brown, Jr., Elkins, for appellee.

PER CURIAM:

We have granted the appellant, Lena Y. Simmons, a second appeal from a final judgment of the Circuit Court of Randolph County rendered in a divorce action. In the first appeal, we reversed the judgment below and remanded the case for a hearing to determine the ownership of personal and household property and money held in three joint bank accounts. Simmons v. Simmons, --- W.Va. ----, ----, 298 S.E.2d 144, 147 (1982).

Although the appellant contends that the trial court erred in its ruling on the remand issues, she also forcefully argues that the lower court erred in failing to hold the appellee in contempt of court for his refusal to make alimony payments as ordered by the court. Believing this to be the most important issue in the case, we address this issue first.

Following remand, the appellant filed a motion seeking, among other things, a judgment for accrued alimony arrearages in the amount of $4,800, plus attorney's fees. She also moved the court to find the appellee in contempt of court for failure to abide by the divorce decree requiring him to pay $300 a month in alimony and for failure to pay prior judgments for accrued alimony and attorney's fees. The appellee did not appear in person at the initial hearing on January 19, 1983, and an order was entered directing him to appear at a hearing set for January 26, 1983. His attorney was present at the initial hearing, however, and the trial court based upon the appellant's testimony granted judgment for the alimony arrearages as prayed for plus $200 in attorney's fees. The appellant testified that the appellee since the 1979 divorce had made approximately three alimony payments. The trial court, over objection, refused to rule on the appellant's contempt motion.

At the January 26 hearing, both parties appeared and testified at length about the ownership of the personal property and the joint banking accounts. At subsequent hearings, evidence was introduced revealing that the appellee, who retired in 1973, receives monthly benefits from four sources totaling about $1,100 per month. These benefits come from the United Mine Workers Retirement Fund, the Social Security Administration, the Federal Black Lung Program, and the West Virginia Public Employees Retirement Fund. At this hearing, the trial judge again refused to consider holding the appellee in contempt of court, advising counsel that his only remedy was to collect on the judgments for accrued alimony as he would on any other money judgment.

The trial court committed clear legal error in refusing to consider whether the appellee should be held in contempt. Alimony payment obligations are tinged with a public interest and have traditionally been enforceable by contempt proceedings. See, e.g., Bailey v. Bailey, 127 W.Va. 826, 35 S.E.2d 81 (1945); Smith v. Smith, 81 W.Va. 761, 95 S.E. 199 (1918). As the Court held in Syllabus Point 4 of Smith:

"Though a decree for alimony ... may be enforced by execution, it is a decree not merely for the payment of money, but for the payment of money in discharge of the high marital duty of maintenance, wherefore it may be enforced by attachment for contempt also."

We expressly stated in note 14 of Hendershot v. Hendershot, --- W.Va. ----, ----, 263 S.E.2d 90, 97 (1980), that our decision affording a jury trial in criminal contempt proceedings did not apply in civil contempt proceedings. As an obvious example of civil contempt, we noted that where a contumacious refusal to pay alimony had been established, incarceration without a jury trial was still proper if the sentencing order contained "the condition that the contemnor can gain immediate release by purging himself of the contempt by performing an act that is within his power to accomplish." --- W.Va. at ----, 263 S.E.2d at 97. The contempt is civil rather than criminal, if "[a]s the courts sometimes say, he carries his own prison keys." Ex Parte Beavers, 80 W.Va. 34, 39, 91 S.E. 1076, 1078 (1917). See Syllabus Points 2 and 3, State ex rel. Robinson v. Michael, --- W.Va. ----, 276 S.E.2d 812 (1981); State ex rel. Canada v. Hatfield, 163 W.Va. 548, 258 S.E.2d 440 (1979); State ex rel. Trembly v. Whiston, 159 W.Va. 298, 220 S.E.2d 690 (1975); Syllabus Point 9, Eastern Assoc. Coal Co. v. Doe, 159 W.Va. 200, 220 S.E.2d 672 (1975); State ex rel. Varner v. Janco, 156 W.Va. 139, 191 S.E.2d 504 (1972); Syllabus Point 7, Smith v. Smith, supra; 6A Michie's Jurisprudence Divorce and Alimony §§ 74, 75 (1985); 27B C.J.S. Divorce § 260(e)(2) (1959).

It is a matter of concern to this Court that the appellee with apparent means to do so has made approximately three alimony payments since the divorce. Considering the nature of the appellee's income, his longstanding failure to abide by the court's orders raises a strong inference of willful disobedience. Due to the nature of the appellee's income, exercise of the appellant's garnishment remedies may well be ineffective. ¹ This Court recognized many years ago in Smith, 81 W.Va. at 767, 199 S.E. at 201, that resort to the traditional methods of enforcing a judgment can involve "ruinous delay and ... may be unavailing, and yet the delinquent party may have it in its power easily to raise and pay the money."

Consequently, on remand, the trial court shall hold a hearing pursuant to W.Va.Code, 48-2-22(b) (1984), within thirty days from and after the date of our decision to determine whether the appellee has contumaciously refused to make alimony payments. If the trial court finds after a hearing that the appellee has committed civil contempt, it should consider a conditional jail sentence, granting him a reasonable time to purge himself of contempt by making a substantial payment eliminating all alimony arrearages to the extent that it is within his power to do so. See Bailey v. Bailey, supra. The appellee should be prepared to make a complete disclosure of his financial condition at the hearing.

In connection with the contempt hearing, it should be observed that the great majority of jurisdictions have expressly held or recognized that in civil contempt proceedings based upon a failure to comply with a court order requiring the payment of alimony, the burden rests upon the alleged contemnor to prove his inability to pay. See 24 Am.Jur.2d Divorce & Separation § 807 (1983); Annot., 53 A.L.R.2d 591 (1957). See generally Syllabus Points 1 and 2, Ex Parte Beavers, supra.

We conclude the trial court did not err in ruling that the appellee was entitled to the money in the joint bank accounts. In the first appeal in this case, we reaffirmed the holding in Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974), our leading case on the ownership rights of living persons in joint bank accounts, and in Syllabus Point 3 of Simmons reiterated the following rule:

" '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)."

We recognized in Dorsey that courts in resolving the often difficult questions concerning the ownership rights in multiple-party bank accounts have placed primary weight...