Travis v. Travis

• Decision Date: 08 July 1983
• Docket Number: No. 15577,15577
• Citation: 305 S.E.2d 329,172 W.Va. 372
• Court: West Virginia Supreme Court
• Parties: Terry Dale TRAVIS v. Donna Kay TRAVIS.

Page 329

305 S.E.2d 329

172 W.Va. 372

Terry Dale TRAVIS v. Donna Kay TRAVIS.

No. 15577.

Supreme Court of Appeals of West Virginia.

July 8, 1983.

Syllabus by the Court

"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." Syl. pt. 1, Simmons v. Simmons, 171 W.Va. 170, 298 S.E.2d 144 (1982), quoting, syl. pt. 1, McKinney v. Kingdon, 162 W.Va. 319, 251 S.E.2d 216 (1978).

Robert S. Baker, Lee H. Adler, Adler & Baker, Beckley, for appellant.

Robert Browning, Jr., Bailey, Worrell & Viers, Pineville, for appellee.

PER CURIAM:

Terry Dale Travis appeals the Wyoming County Circuit Court's division of property in his divorce action. We conclude that the trial judge incorrectly awarded the use of the marital home and part of the husband's business and personal property to his ex-wife, and reverse the circuit court.

The appellant and the appellee, Donna Kay Travis, were married on August 22, 1974. At the time of the marriage, the appellee was a widow with two minor children. No children were born of the marriage between the parties. The appellant did not adopt the children from the appellee's previous marriage, although the children lived with them. This fact is critical to the appeal sub judice because the trial court awarded the use of the marital home to the wife during the minority of children who were not the appellant's.

During the marriage, the appellant started and ran a business from his home, manufacturing a belt clamping tool which he designed for use in the mines. Until June 12, 1980 the parties lived together on a farm which was purchased and owned jointly. Although the appellee was not employed, she did considerable maintenance work on the house and farm, and cared for the livestock.

The marriage foundered, however, and on June 13, 1980 the appellant filed a complaint for divorce. The appellee counterclaimed for a divorce as well. Each asked for possession of the house and property, furnishings, livestock, farm truck and tractor with attachments, a 1978 Ford Bronco; one-half of their joint savings, clothing and personal effects. In addition, the appellant asked for possession of his business tools, equipment and fixtures. The appellee sought alimony, payment of her attorney fees and court costs, and one-half of the appellant's business, alleging that she had helped establish and fund it.

On June 27, 1980 the circuit court awarded appellee temporary alimony of $250 per month; possession of the house and property, furnishings, equipment, livestock, the Bronco, truck and tractor with attachments. The court awarded appellant his business tools, equipment and records, clothing and personal effects; and ordered him to pay the appellee's attorney fees of $450. Certificates of Deposit in the sum of $18,000 were divided equally between the parties.

On January 30, 1981 the court entered the final decree granting the parties a divorce on the grounds of irreconcilable differences. The court found inequitable conduct on the part of the appellant, and ordered him to pay appellee $300 per month as alimony. The court further awarded the appellee exclusive ownership of the household contents, and possession of the home and real estate until her younger child reaches 18 years of age, at which time the parties may partition the property and divide the proceeds. The livestock was awarded to the appellee, with all other personalty to be divided equally between them.

The court denied appellant's motion for a new trial, but entered an amended decree on May 6, 1981 providing that the appellant's business properties belonged solely to him. The appellant was also unsuccessful in his attempt to modify the alimony award, on the ground that appellee had been restored to Social Security survivor's benefits. In December, 1981 he petitioned the court for his business and personal property still in the possession of the appellee, submitting a list of those items as an exhibit. By order of January 18, 1982 the court awarded appellant certain items on the list, granting the remainder to the appellee.

The appellant now contends that the trial court erred in: granting ownership of the jointly-owned household furnishings and livestock to the appellee; awarding her possession of the jointly-owned real estate; refusing to reconsider an excessively high alimony award; and, awarding a portion of his business and personal property to the appellee.

" '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)." Syl. pt. 1, Simmons v. Simmons, 171 W.Va. 170, 298 S.E.2d 144 (1982).

Under W.Va.Code, 48-2-15 [1980], a trial court may award the exclusive use of jointly-owned home property to a...