Zanke v. Zanke, No. 19525

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM
Citation404 S.E.2d 92,185 W.Va. 1
PartiesSusan ZANKE, Plaintiff Below, Appellant, v. Ronald F. ZANKE, Defendant Below, Appellee.
Decision Date02 April 1991
Docket NumberNo. 19525

Page 92

404 S.E.2d 92
185 W.Va. 1
Susan ZANKE, Plaintiff Below, Appellant,
v.
Ronald F. ZANKE, Defendant Below, Appellee.
No. 19525.
Supreme Court of Appeals of
West Virginia.
Submitted Jan. 8, 1991.
Decided April 2, 1991.

Page 93

[185 W.Va. 2] Syllabus by the Court

1. "Matured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as 'decretal judgments' against the party charged with the payments." Syllabus Point 1, Goff v. Goff, 177 W.Va. 742 , 356 S.E.2d 496 (1987).

2. "The limitation provided in Code, 38-3-18, applied to a decretal judgment payable in installments, commences to run when each installment becomes due, as to the part of said judgment then payable." Syllabus Point 3, Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947).

3. "Mature alimony and child support installments are judgments for money which accrue statutory interest from the date the payments are due." Syllabus Point 5, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

4. "Rule 52(a) of the West Virginia Rules of Civil Procedure requires a trial court in a divorce proceeding to state on the record findings of fact and conclusions of law which support its decision. A divorce decree which does not comply with this mandatory requirement may be remanded for compliance." Syllabus Point 3, Witte v. Witte, 173 W.Va. 281, 315 S.E.2d 246 (1984).

Jay T. McCamic, McCamic & McCamic, Wheeling, for plaintiff below, appellant.

David J. Sims, Wheeling, for defendant below, appellee.

PER CURIAM:

This case is before us on the appeal of Susan Britt Zanke, the plaintiff below, from an order of the Circuit Court of Ohio County, which reduced the amount of accumulated alimony arrearage owed her by Ronald F. Zanke, the defendant below, and terminated the defendant's future alimony obligation.

The parties were married on November 30, 1972, and cohabited as husband and wife for thirty-six months. They were divorced on May 20, 1976. As part of the divorce, the husband was ordered to pay $130 per month in alimony to the wife, which he did for three months. There is evidence that the parties saw each other occasionally over the intervening years and may have discussed the alimony arrearage. No formal action to enforce the order was brought by the wife, nor was an action to modify brought by the husband.

In 1987, the husband received an award of approximately $75,000 in a personal injury lawsuit. On May 24, 1988, the wife filed a petition for a contempt order and for judgment for the arrearage of $18,070.

A hearing was held on the petition before the family law master, who filed his report on January 4, 1989. He recommended that the husband be found in willful contempt of a prior court order and that the wife be granted a decretal judgment in the amount of $16,250. 1

The husband filed a petition for review of the recommendations of the family law master on January 13, 1989. He then filed a petition for modification, seeking termination of his alimony obligation. The wife filed a response requesting a hearing, which was held on April 17, 1989.

The hearing was rather brief. It established the date of the divorce, the amount of alimony set in the final decree, and the fact that payments were made for three months. It also revealed that the wife had lived in Lexington, Kentucky, for several years before returning to the Wheeling area. She stated that she had asked about payments on several occasions, but that the husband had indicated that he had no money. At the time of the hearing, she was working as a clerk in a florist shop.

The husband described his financial problems and stated that his share of the personal injury award had already been spent. He did indicate that the award included a $20,000 component, which he would not receive until he reached his sixtieth birthday

Page 94

[185 W.Va. 3] in about eight years. He claimed that his wife had told him sometime after the divorce that she did not want any alimony payments.

The circuit court, in its final order, entered a judgment in favor of the wife in the amount of $8,125, but terminated her right to receive alimony in the future. The court offered no specific reasons for cutting the family law master's back alimony recommendation in half or for terminating the wife's future alimony. 2

I.

The wife first assigns as error the circuit court's reduction of the judgment recommended by the family law master from $16,250 to $8,125. We hold that the circuit court incorrectly reduced the accrued alimony and remand the case for a determination of the actual amount due the wife.

It is well established in West Virginia that when a provision for periodic payments of alimony is made in a divorce decree, these installments become decretal judgments as they become due, as we held in Syllabus Point 1 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987):

"Matured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as 'decretal judgments' against the party charged with the payments."

See Sauls v. Howell, 172 W.Va. 528, 309 S.E.2d 26 (1983); Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947); Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889 (1940).

A related question is what period of time will foreclose the enforcement of such decretal judgments. This point was discussed in Korczyk v. Solonka, supra, where a decree for support of $40 per month was ordered in 1929. No payments were made, and in October of 1945, a judgment was obtained in the circuit court for $11,464.20, including interest. When a suit was filed to sell the debtor's real estate, the trial court certified several questions to this Court, including whether the ten-year period for enforcement of judgments contained in W.Va.Code,...

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7 practice notes
  • Shaffer v. Stanley, No. 31118.
    • United States
    • Supreme Court of West Virginia
    • November 26, 2003
    ...that there is no exception to the 10-year statute of limitations set forth in West Virginia Code Section ... 38-3-18. In Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991), the Court reaffirmed this principal [sic]. Accordingly, it is ORDERED and ADJUDGED that ... the plaintiff and the State......
  • Robinson v. McKinney, No. 21549
    • United States
    • Supreme Court of West Virginia
    • June 24, 1993
    ...continued to follow the above statement set forth in Korczyk. See Hudson v. Peck, 183 W.Va. 300, 395 S.E.2d 544 (1990) and Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 However, in Zanke, supra at n. 5, we noted that the doctrine of laches was applied in Hartley v. Ungvari, 173 W.Va. 583, 318 ......
  • State ex rel. Wv Dept. of Health v. Varney, No. 33332.
    • United States
    • Supreme Court of West Virginia
    • November 21, 2007
    ...to run from the return date of the execution." Collins, 209 W.Va. 115, 543 S.E.2d 672, at syl. pt. 7. As we recognized in Zanke v. Zanke, 185 W.Va. 1, 4, 404 S.E.2d 92, 95 (1991), appeal after remand, 192 W.Va. 310, 452 S.E.2d 401 [u]nder W.Va.Code, 38-3-18, a judgment may remain alive afte......
  • Lauderback v. Wadsworth, No. 20447
    • United States
    • Supreme Court of West Virginia
    • March 20, 1992
    ...alimony and child support, stand as 'decretal judgment' against the party charged with the payments. See Syllabus Point 1, Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991); Sauls v. Howell, 172 W.Va. 528, 309 S.E.2d 26 (1983); Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947); Holcom......
  • Request a trial to view additional results
7 cases
  • Shaffer v. Stanley, No. 31118.
    • United States
    • Supreme Court of West Virginia
    • November 26, 2003
    ...that there is no exception to the 10-year statute of limitations set forth in West Virginia Code Section ... 38-3-18. In Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991), the Court reaffirmed this principal [sic]. Accordingly, it is ORDERED and ADJUDGED that ... the plaintiff and the State......
  • Robinson v. McKinney, No. 21549
    • United States
    • Supreme Court of West Virginia
    • June 24, 1993
    ...continued to follow the above statement set forth in Korczyk. See Hudson v. Peck, 183 W.Va. 300, 395 S.E.2d 544 (1990) and Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 However, in Zanke, supra at n. 5, we noted that the doctrine of laches was applied in Hartley v. Ungvari, 173 W.Va. 583, 318 ......
  • State ex rel. Wv Dept. of Health v. Varney, No. 33332.
    • United States
    • Supreme Court of West Virginia
    • November 21, 2007
    ...to run from the return date of the execution." Collins, 209 W.Va. 115, 543 S.E.2d 672, at syl. pt. 7. As we recognized in Zanke v. Zanke, 185 W.Va. 1, 4, 404 S.E.2d 92, 95 (1991), appeal after remand, 192 W.Va. 310, 452 S.E.2d 401 [u]nder W.Va.Code, 38-3-18, a judgment may remain alive afte......
  • Lauderback v. Wadsworth, No. 20447
    • United States
    • Supreme Court of West Virginia
    • March 20, 1992
    ...alimony and child support, stand as 'decretal judgment' against the party charged with the payments. See Syllabus Point 1, Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991); Sauls v. Howell, 172 W.Va. 528, 309 S.E.2d 26 (1983); Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947); Holcom......
  • Request a trial to view additional results

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