Summers v. Summers

• Citation: 465 S.E.2d 224,195 W.Va. 224
• Decision Date: 09 November 1995
• Docket Number: No. 22862,22862
• Court: West Virginia Supreme Court
• Parties: Betty Jo SUMMERS, nka Betty Jo Kidd, Plaintiff Below, Appellant, v. Samuel David SUMMERS, Jr., Defendant Below, Appellee.

Page 224

465 S.E.2d 224

195 W.Va. 224

Betty Jo SUMMERS, nka Betty Jo Kidd, Plaintiff Below, Appellant, v. Samuel David SUMMERS, Jr., Defendant Below, Appellee.

No. 22862.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 27, 1995.

Decided Nov. 9, 1995.

[195 W.Va. 225] Syllabus by the Court

1. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

2. "Where the value of an equitable distribution asset is payable over a term of years, interest should be paid at the going rate in the absence of some special hardship factor shown by the obligor." Syllabus Point 7, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

3. "The purpose of W.Va.Code, 48-2-13(a)(4) (1986), [now 48-2-13(a)(6)(A) (1993) ] is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees [incurred] during the course of the litigation." Syllabus point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

Ronald Wm. Kasserman, Seibert, Kasserman, Farnsworth, Gillenwater, Glauser, Richardson & Curtis, Wheeling, for Appellant.

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

PER CURIAM:

This divorce case involving matters of equitable distribution is before this Court again following our decision in Summers v. Summers, 186 W.Va. 635, 413 S.E.2d 692 (1991), to remand to the circuit court for a determination of the enforceability of an oral post-decree settlement agreement. By order entered December 14, 1993, the Circuit Court of Taylor County found the agreement was not obtained by "fraud or duress," but was unenforceable because its terms were "patently unfair." The circuit court ordered Samuel David Summers, Jr., the defendant

[195 W.Va. 226] below and appellee herein, to pay $71,113.68 over the next four years to Betty Jo Summers, now known as Betty Jo Kidd, the plaintiff below and appellant herein, to finalize an equitable division of the marital assets. The plaintiff asserts the circuit court erred by: (1) failing to order a sale of the marital property; (2) failing to award post-judgment interest; (3) failing to award her attorney's fees; and (4) not specifically finding the defendant's conduct constituted fraud. In addition to responding to the plaintiff's assignments of error, the defendant raises two cross-assignments of error, alleging the circuit court erred by: (1) finding the post-decree settlement agreement was not fair; and (2) awarding the plaintiff $71,113.68 to equalize the distribution of assets.

I. FACTS

The parties were married in 1967. They raised seven children during the marriage, all of whom have now reached the age of majority--the defendant's three sons from a previous marriage and the parties' four children. The parties operated a family timber and saw mill operation on their approximately 400-acre farm in Taylor County. In 1980, an appraisal was made on the farm which indicated a value of $210,000. The defendant provided expertise and labor for the family business, while the plaintiff provided bookkeeping services in addition to her homemaker services.

In June of 1987, a hearing was conducted before the family law master for this divorce proceeding. The family law master recommended the disposition of various personal property and recommended the sale of many of the marital assets, including the family farm, with the proceeds to be evenly divided after the cost of the sale and indebtedness. The family law master also recommended that the plaintiff receive $200 per month alimony for five years unless she remarried. On November 13, 1987, the circuit court granted the divorce and adopted the findings of the family law master.

Numerous procedural events concerning the terms of the order took place following its entry. The events are set out in our previous opinion. See Summers, 186 W.Va. at 637-38, 413 S.E.2d at 694-95. In March of 1989, the parties entered into the post-decree settlement agreement which was at issue in our earlier decision. As per the terms of the settlement agreement, the plaintiff accepted $30,000 in exchange for her rights in the remainder of the marital property. The plaintiff also received approximately $10,000 from a whole life insurance policy and approximately $3,000 from the sale of other marital property.

Following our remand of this case, a hearing was held before the family law master on March 22, 1993. The family law master heard evidence regarding the enforceability of this unsigned property settlement agreement. ¹

At this hearing, the defendant submitted evidence on the issue of the value of the farm in an attempt to demonstrate the agreement was fair. A real estate appraiser, Jerry M. Gavitt, testified that the location of the sawmill would have a negative impact on the sale of the farm. Mr. Gavitt testified that the fair market value of the farm in 1988 was $176,000. He further testified that taking all things into consideration a forced sale of the farm in 1988 would have brought only $110,000.

The family law master was not persuaded by the plaintiff's argument that she entered into the agreement because of fraud and duress. However, he did find the agreement was unfair and therefore not enforceable. The family law master found:

"The 'agreement' is patently unfair. To suggest, as defendant does, that a settlement "Because of its unfairness the 'agreement' is unconscionable."

[195 W.Va. 227] of sum $47,530.39 [sic ] ² on a marital estate valued at $228,088.14 is fair is ridiculous. While there was an agreement it is hard to imagine that this was to be a total agreement.

In arriving at the figure of $228,088.14, as the sum of the marital estate, the personal property was valued at approximately $137,000. The family law master relied upon the appraisal of the farm submitted by the plaintiff at the earlier hearing. He stated:

"In finding XVI of the original findings of fact the real property was valued at $200,000.00. Since then this value has become somewhat suspect but since neither party had it adequately appraised recent speculations as to what its then fair market value was are inappropriate to consider. For the purposes of this distribution the vale [sic ] is $200,000.00."

Accordingly, the plaintiff was awarded $71,113.68, which is half the value of the marital estate minus the $42,930.39 she already received. On December 13, 1993, the circuit court adopted the findings and recommendations of the family law master. It is from this order that both parties appeal.

II. DISCUSSION

A. Standard of Review

We begin by noting that this Court accords deference to the circuit court in conducting a review of a final equitable distribution order. Syllabus Point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), sets forth the standard of review this Court should employ when examining challenges to a decision of the circuit court which adopted the findings of the family law master:

"In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review."

In the present case, the family law master relied upon the appraisal of the farm submitted by the plaintiff to arrive at his factual finding that the fair market value of the farm was $200,000. For reasons discussed below, we decline to reverse that finding. Furthermore, the circuit court determined a cash settlement was "the most appropriate method of equalization." Similarly, we do not find the circuit court erred in not forcing a sale of the farm in light of the peculiar facts of this case. The circuit court's recommended decision did not address the plaintiff's request for post-judgment interest. As we discuss in more detail below, we find the law clearly provides that the plaintiff should receive post-judgment interest. Accordingly, we find it necessary to remand this case for entry of an order awarding post-judgment interest. Finally, a review of the record demonstrates the circuit court did not abuse its discretion in failing to award the plaintiff her attorney's fees. ³

B. Marital Property

The first issue relating to the marital property is the value assigned to the farm in determining equitable distribution. The defendant asserts that in light of his evidence indicating the value of the farm at $110,000, the circuit court erred by finding the settlement agreement unfair and erred in awarding the plaintiff an additional $71,113.68 to equalize the distribution of assets. However, he concedes that had the marital estate been worth over $228,000, the settlement agreement would have been unfair.

When evaluating the fairness of the post-decree settlement agreement in this case, we need to focus on the information available to the parties at the time the contract was entered into. "The fairness of the "(b) In cases where the parties to an action commenced under the provisions of this article have executed a separation agreement, then the court shall divide the marital property in accordance with the terms of the agreement, unless the court finds:

                [195 W.Va. 228] transaction in making an agreement should be determined by the condition of things at the time the agreement was made and executed, and

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