Somerville v. Somerville, 17526
| Decision Date | 21 April 1988 |
| Docket Number | No. 17526,17526 |
| Citation | 179 W.Va. 386,369 S.E.2d 459 |
| Court | West Virginia Supreme Court |
| Parties | Jean D. SOMERVILLE v. Paul R. SOMERVILLE, Jr. |
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).
2. In any order making a division of marital property, the trial court must set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted. W.Va.Code § 48-2-32(f) (1986).
3. An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors.
Margaret Phipps Brown, Baer, Colburn & Morris, Huntington, for Jean D. Somerville.
John G. Anderson, Winfield, for Paul R. Somerville.
This is an appeal by Jean D. Somerville from a divorce decree entered by the Circuit Court of Mason County. On appeal the appellant contends that the trial court failed to award her a proper and equitable percentage of the marital property and that the court erred in refusing to award her permanent alimony. She also claims that she entered into an unconscionable settlement agreement, that the trial court improperly valued a marital asset, and that the trial court erred in making certain orders relating to temporary alimony, fees, and costs pending appeal. After reviewing the record, the Court finds that the trial court's unequal division of marital property without articulating the basis therefor was in error. Accordingly, the judgment of the Circuit Court of Mason County is reversed and the case is remanded for further proceedings.
The appellant, Jean D. Somerville, and the appellee, Paul R. Somerville, Jr., were married on June 6, 1953. The parties separated in October, 1984, after thirty-one years of marriage. They had two children, both of whom were emancipated when the parties separated. The appellant and the appellee were aged 54 and 55, respectively, when hearings commenced in May, 1985.
Prior to the marriage and for three years after, the appellant was a clerical employee of Appalachian Power Company, earning $300 to $400 per month. At that time, the appellee was a partner in a grocery business, which he sold in 1959. Thereafter he became an insurance agent. His 1985 federal income tax return shows a total income of over $67,000. During the marriage, the appellant provided primary child care and homemaker services, and at least occasionally assisted her husband in his business without compensation. In 1969, she began taking classes at Marshall University. She received a Bachelor's Degree in Spanish and Language Arts in 1974, and a Master's Degree in English and Education Arts in 1982. Since completing her education, the appellant has worked as a substitute teacher in Mason County, with gross wages of approximately $5,000 per year.
Shortly after the separation the appellant commenced this action for divorce in the Circuit Court of Mason County. In her complaint she alleged irreconcilable differences, cruelty, and adultery. Her husband filed an answer to the complaint and a counterclaim seeking a divorce on the ground of cruelty.
After conducting hearings in the matter the circuit court on March 10, 1986, entered an order which, without finding fault, granted the parties a divorce on the ground of irreconcilable differences. Additionally, the court awarded each of the parties certain separate property and granted Jean Somerville 30%, and Paul Somerville 70%, of the marital property enumerated and valued in the divorce order. The court refused to grant the appellant permanent alimony. The court confined its findings of fact and conclusions of law primarily to allocation of specifically enumerated property, and did not mention our equitable distribution statute, W.Va.Code § 48-2-32, or the factors set out therein.
A substantial asset of the parties was a 25% interest in a truck stop located in Putnam County, which the court found to be marital property, although it was titled in the husband's name. The decree set a value of $125,000 for the 25% interest, but made clear that the percentages established for equitable distribution, and not the assigned value, would control if the property were sold in order to implement the property settlement.
After entry of the March 10, 1986, order the parties partitioned certain of their properties. Difficulties arose, however, over the husband buying out the appellant's interests in other parcels, including the truck stop property. As a consequence, the appellant filed a "Motion to Clarify Provisions of Final Divorce Decree." The circuit court conducted a hearing on this motion on May 16, 1986. In the course of the hearing the parties, at the court's urging, agreed to settle their disputes. In an agreement incorporated in a court order dated June 23, 1986, they agreed that the husband would pay the appellant $62,500 as her equitable distribution of all remaining marital property except the truck stop interest. The parties agreed further that at the time of payment they would execute mutual releases "as to alimony and all marital property and separate property of both parties." The order also prohibited the sale of the truck stop interest without the appellant's prior written approval.
On July 1, 1986, Mr. Somerville tendered to the appellant a check for $62,500. The appellant refused to accept it. Mr. Somerville then delivered the check to the circuit court, which directed that the clerk of the court place the proceeds of the check in an interest-bearing account until further order.
Following a number of conveyances of the truck stop that were subsequently set aside by the court for failure to follow the procedural requirements of the divorce order, the husband's interest in the truck stop was conveyed to a third party for $212,500. The trial court paid 30% of this amount to the appellant and 50% to the appellant's husband. The remainder was placed in escrow, pending resolution of this appeal.
The appellant's primary assignment of error is that the court erred in awarding her only 30% of the marital property without findings on the record that would justify deviation from the statutory presumption that marital property should be divided equally. West Virginia Code § 48-2-32(c) (1986) provides that in the absence of a valid agreement the trial court shall presume that all marital property is to be divided equally. The court may alter this distribution, however, based on consideration of certain factors. Because the legislature saw fit to include a detailed list of factors, we quote the relevant portion of the statute here in full:
In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to any attribution of fault to either party which may be alleged or proved in the course of the action, after a consideration of the following:
(1) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including, but not limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by nonmonetary contributions, including, but not limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than adequate compensation, in a family business or other business entity in which one or both of the parties has an interest;
(D) Labor performed in the actual maintenance or improvement of tangible marital property; and
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