Stillings v. Stillings

• Decision Date: 17 July 1981
• Docket Number: No. 14934,14934
• Citation: 167 W.Va. 796,280 S.E.2d 689
• Parties: Samuel L. STILLINGS v. Lucy E. STILLINGS.
• Court: West Virginia Supreme Court

Page 689

280 S.E.2d 689

167 W.Va. 796

Samuel L. STILLINGS v. Lucy E. STILLINGS.

No. 14934.

Supreme Court of Appeals of West Virginia.

Decided July 17, 1981.

Concurring Opinion July 27, 1981.

Syllabus by the Court

1. "By virtue of W.Va.Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale." Syllabus Point 3, Consolidated Gas Supply Corp. v. Riley, W.Va., 247 S.E.2d 712 (1978).

2. In the absence of some specific statutory provision, a person is entitled to bring partition if he possesses a present right of possession to the property; the actual physical possession of the property is not required. Paul E. Parker, Jr., Fairmont, John S. Sibray, Charleston, for appellant.

Rose, Southern & Padden and Philip C. Petty, Fairmont, for appellee.

MILLER, Justice:

Samuel L. Stillings appeals from an order of the Circuit Court of Marion County dismissing his partition suit for the sale of certain real estate jointly owned by Stillings and his former wife. The circuit court refused to order the sale of the property under W.Va.Code, 37-4-3, because Mrs. Stillings had been previously awarded in a divorce decree the exclusive use and possession of the real estate in question. It was the trial court's conclusion that the divorce decree which gave the wife exclusive use of the home property deprived her former husband of the type of possessory interest in the property necessary to bring a partition suit. For reasons herein set out, we disagree and reverse.

It is apparent that part of the problem in this case centers on what happens to the right of a joint tenant to partition when, as a result of a divorce decree, the other joint tenant is awarded exclusive possession of the home property. In Syllabus Point 2 of Murredu v. Murredu, W.Va., 236 S.E.2d 452 (1977), we stated:

"A trial court in the exercise of its sound discretion under the provisions of W.Va.Code, 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children."

We also recognized by way of dictum in Murredu that the right to partition under W.Va.Code, 37-4-1, may still be possible although exclusive possession has been granted to a spouse joint tenant as an incident to a divorce. ¹

The appellant husband argues that our partition statute gives him an absolute right to have a partition through sale. On the other hand, the appellee wife contends the husband has no right to partition since he has no present possessory interest and it was upon this theory that the trial court dismissed the husband's partition suit.

In Consolidated Gas Supply Corp. v. Riley, W.Va., 247 S.E.2d 712 (1978), we discussed in some detail the common law right of partition and the expanded right to partition arising from our partition statute. W.Va.Code, 37-4-1 et seq. We expressly stated that "this Court has never interpreted the statutory right to partition by sale as absolute. W.Va.Code, 37-4-3." 247 S.E.2d at 714. In Syllabus Point 3 of Riley, we set out the initial statutory requirements for a partition by sale as follows:

"By virtue of W.Va.Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale."

Consequently, the appellant husband's position that he has an absolute right to partition for sale cannot be sustained under our law.

However, we do not accept the wife's position that because she was granted exclusive use of the jointly-owned property in the divorce action, her former husband lacks a sufficient possessory interest to bring a partition suit.

It does not appear that we have had occasion to extensively discuss the type of possessory interest needed for partition. In Woodrum v. Price, 100 W.Va. 639, 641, 131 S.E. 550, 550 (1926), we stated:

"The fact that the plaintiffs are not in actual possession of this land, and that the defendant grantees hold and claim it adversely, is not a determining factor in the question of jurisdiction. Under the West Virginia statute, possession by the plaintiffs is not a jurisdictional requirement. The sole test of jurisdiction in our statutory partition is the relationship of the parties to the land sought to be partitioned."

In Brown v. Brown, 67 W.Va. 251, 251-52, 67 S.E. 596, 596 (1910), we denied the right of a remainderman to bring a partition suit stating:

"He cannot maintain a suit for partition by virtue of his remainder. Nor can he have partition unless entitled to immediate possession. A remainderman is not so entitled. This court has decided that a reversioner or remainderman cannot compel partition during the continuance of a particular estate. Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56; Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 Am.St.Rep. 918."

The general rule elsewhere is that in the absence of some specific statutory provision a person is entitled to bring partition if he possesses a present right of possession to the property; the actual physical possession of the property is not required. E.g., Penfield v. Jarvis, 175 Conn. 463, 399 A.2d 1280 (1978); Hurwich v. Zoss, 170 Ind.App. 542, 353 N.E.2d 549 (1976); Lawrence v. Harvey, 607 P.2d 551 (Mont.1980); 59 Am.Jur.2d Partition § 34 (1971); Annot., 171 A.L.R. 932 (1947).

The fact that a divorce court is empowered under Murredu to grant exclusive custody of the home property to one of the joint owners as an incident to the divorce does not mean that this "exclusive possession" is converted into an estate in property such as a life tenancy or some other form of tenancy. ² We refuse to impose common law property concepts onto the Murredu exclusive possession right.

There is considerable confusion in other jurisdictions over the issue of whether partition can be obtained on jointly-owned property where one of the spouses has obtained exclusive custody by virtue of a divorce decree. Most of the cases do not contain any extensive discussion of the problem. Some courts preclude partition based on equitable principles that are not fully articulated. E.g., Terrible v. Terrible, 91 Nev. 279, 534 P.2d 919 (1975); Goodpasture v. Goodpasture, 115 N.J.Super. 189, 278 A.2d 531 (1971); cf., Wilisch v. Wilisch, 335 So.2d 861 (Fla.App.1976); Balderston v. Balderston, 40 Md.App. 239, 388 A.2d 183 (1978).

Illinois appears to permit partition regardless of any equities in the one having exclusive possession. Heldt v. Heldt, 29 Ill.2d 61, 193 N.E.2d 7 (1963); Davis v. Davis, 128 Ill.App.2d 427, 262 N.E.2d 788 (1970). One court suggests that "it would be against public policy and principles of law and equity to allow partition during the minority of the children while the house was set aside for the exclusive use of the mother and minor children under a decree of dissolution." Lawrence v. Harvey, supra, 607 P.2d at 556.

We think that a proper solution to this issue is to recognize that since the "exclusive possession" decree does not vest a common law property interest, it may be modified as any other divorce decree. The general rule is that divorce decrees relating to support, maintenance, and custody of children may be subsequently modified by the court based on the changed conditions of the parties. W.Va.Code, 48-2-16; Nichols v. Nichols, W.Va., 236 S.E.2d 36 (1977); Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898 (1974); 24 Am.Jur.2d, Divorce and Separation § 665 (1966).

The modification of a divorce decree is essentially based on equitable principles of fairness; this is the same general standard that is required to obtain a partition by way of sale. Under W.Va.Code, 37-4-3, it must be demonstrated that the interests of one or more of the parties will be promoted by the sale and that the interest of the other parties will not be prejudiced. So, a partition suit for sale is not a remedy incompatible with a modification of a divorce decree.

One of the primary purposes of the Murredu exclusive possession rule is to enable the divorce court to utilize the family home property as the living situs for the spouse who has obtained custody of the children. It provides a vehicle to award the use of habitation, thereby diminishing the monetary payments necessary for shelter for the spouse and children. However, it is not difficult to foresee changes in circumstances where it would become inequitable to continue the exclusive possession decree. The New York court in Ripp v. Ripp, 38 A.D.2d 65, 69, 327 N.Y.S.2d 465, 469-70 (N.Y.App.1971) aff'd, 344 N.Y.S.2d 950, 32 N.Y.2d 755, 298 N.E.2d 114 (1973), addressed some of these factors in the context of determining whether a partition sale should be authorized:

"(I)n making that decision, (the court) should give weight to the relative financial resources of the parties, the need of either party for occupancy of the home, and the duration of the exclusive possession. For example, the court's decision might well be affected, among...