Downey v. Kamka
Annotate this CaseJanuary 1993 Term
___________
No. 21188
___________
MARY MARGARET DOWNEY,
Plaintiff Below, Appellant
v.
GORDON CHRIS KAMKA,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable A. Andrew MacQueen III, Judge
Civil Action No. 89-C-3709
AFFIRMED, IN PART;
REVERSED, IN PART.
___________________________________________________
Submitted: January 19, 1993
Filed: March 25, 1993
Robin Jean Davis
Charleston, West Virginia
Attorney for the Appellant
John J. Charonko
Charleston, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Questions relating to alimony and to the maintenance
and custody of the children are within the sound discretion of the
trial court and its action with respect to such matters will not be
disturbed on appeal unless it clearly appears that such discretion
has been abused." Syl., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).
2. "In a divorce suit the finding of fact of a trial
chancellor based on conflicting evidence will not be disturbed on
appeal unless it is clearly wrong or against the preponderance of
the evidence." Syl. pt. 3, Taylor v. Taylor, 128 W. Va. 198, 36 S.E.2d 601 (1945).
3. "In computing the value of any net asset, the
indebtedness owed against such asset should ordinarily be deducted
from its fair market value." Syl. pt. 3, in part, LaRue v. LaRue,
172 W. Va. 158, 304 S.E.2d 312 (1983).
4. "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[.]" Syl. pt. 1, in part,
Somerville v. Somerville, 179 W. Va. 386, 369 S.E.2d 459 (1988).
Per Curiam:
This action is before this Court upon an appeal from the
October 1, 1991, order of the Circuit Court of Kanawha County, West
Virginia, which granted the parties a divorce upon the grounds of
irreconcilable differences. The circuit court awarded custody of
the parties' child, Caitlin Chris Downey, who was born on July 29,
1989, to the appellant, Mary Margaret Downey. The appellee is
Gordon Chris Kamka. The appellant raises four issues on appeal:
(1) the date the child support award is to become effective; (2)
whether the appellant is required to pay one-half of the tax debt
indebtedness incurred by the appellee prior to the parties'
marriage; (3) whether the appellant is further required to pay one-half of the outstanding taxes due and owing to the State and one-half of an accounting bill which were incurred during the marriage;
and (4) whether the appellant is entitled to one-half of the equity
in certain farm equipment which accrued during the marriage.
The parties to this action were married on May 9, 1987,
and separated on April 4, 1989. The civil action seeking the
divorce was filed in the Circuit Court of Kanawha County, West
Virginia on October 24, 1989.
On February 13, 1990,the parties entered into an agreed
temporary order with regard to issues concerning custody, child
support and exclusive use and possession of certain marital assets.
In her recommended decision, on March 25, 1991, the family law
master utilized the child support formula and recommended an
increase in child support from $800.00 per month, as stated in the
agreed temporary order, to $1,148.50 per month. Furthermore, the
family law master recommended that outstanding taxes due and owing
to the State is a marital indebtedness to be divided equally
between the parties, and that the farm equipment is the appellee's
separate property.
On October 1, 1991, the circuit court judge affirmed the
findings of fact and conclusions of law as recommended by the
family law master on March 25, 1991.
This Court has before it the petition for
appeal, all
matters of record and the briefs of counsel. For the reasons
stated below, the judgment of the circuit court is affirmed, in
part, and reversed, in part.
The appellant's first contention is that the appellee
should be required to pay the increase in the child support
retroactively to the date of the recommended decision of the family
law master. Specifically, the appellant seeks approximately
$2,440.00 in child support between March 25, 1991, the date of the
recommended decision, and October 1, 1991, the date the final order
was entered.
The appellant primarily argues that it is not in the best
interest of the child to be deprived of child support payments
because of delays in our judicial system. We have recognized the
importance of considering the best interest of the child when
determining the date the child support award is to become
effective. See Marsh v. Marsh, 183 W. Va. 279, 282, 395 S.E.2d 523, 526 (1990). However, it is well established that "questions
relating to alimony and to the maintenance and custody of the
children are within the sound discretion of the trial court and its
action with respect to such matters will not be disturbed on appeal
unless it clearly appears that such discretion has been abused."
Syl., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).
The record is unclear as to what caused the delay. The
appellee suggests that the delay was based upon a combination of
the trial judge failing to timely receive income information he
requested, and the parties filing numerous motions and pleadings
after the hearing before the judge. On the other hand, the
appellant asserts that much of the paperwork was a result of the
appellee's failure to comply with various orders entered by the
circuit court. Yet, these petitions, as the appellant argues, had
no effect on the speed of the decision on exceptions before the
judge.See footnote 1
Furthermore, the record has not been developed to show
any abuse in discretion by the trial judge in not granting the
child support retroactively to the recommendation of the family law
master. Moreover, it is important to note that there is nothing in
the record to indicate that the retroactivity issue was ever raised
below.
We, therefore, find that the record is void of any clear-cut evidence that would tend to prove that the circuit court's
delay and setting the date of the child support payments on the
date of its order was an abuse of its discretion. Thus, we affirm
the ruling of the circuit court.See footnote 2
Next, the appellant contends that she is entitled to be
reimbursed for one-half of the pre-marital tax debt, incurred by
the appellee prior to the parties' marriage, which was later paid
with marital funds. We agree with the appellant.
The appellee admitted that he paid all of his 1985-86 tax
liabilities, totalling $27,595.00, during the parties' marriage.
The amount of indebtedness was obviously reduced through the
expenditure of marital assets. See W. Va. Code, 48-2-1(e)(1) & (2)
[1992].
"In a divorce suit the finding of fact of a trial
chancellor based on conflicting evidence will not be disturbed on
appeal unless it is clearly wrong or against the preponderance of
the evidence." Syl. pt. 3, Taylor v. Taylor, 128 W. Va. 198, 36 S.E.2d 601 (1945). In this case, we are of the opinion that the
circuit court erred in requiring the appellant to pay one-half of
the appellee's tax indebtedness of $27,595.00, incurred by the
appellee prior to the parties' marriage. We reverse the ruling of
the circuit court and find that the appellee shall reimburse the
appellant for one-half of the premarital tax debt which was paid
with marital funds, or $13,797.50. See syllabus, Spielman v.
Spielman, 181 W. Va. 178, 381 S.E.2d 377 (1989).
The third issue before us is the appellant's contention
that she should not be required to pay one-half of the $5,784.00 in
outstanding taxes due and owing to the State, or $2,892.00, plus
one-half of the appellee's $3,000.00 marital accounting bill, or
$1,500.00, for a total of $4,392.00. We disagree.
Mr. Luther Hanson, the parties' accountant, provided
information to the circuit court regarding the $5,784.00 in West
Virginia state taxes still due and owing for the years 1987, 1988,
and 1989, during which the parties were married.
The appellant argues that during the marriage, the
parties filed separate tax returns, and the appellant paid her
taxes in a timely fashion, unlike the appellee. The appellant
further argues that it is unfair to require her to pay $4,392.00 or
one-half, respectively, of the outstanding taxes and accounting
bills which were the direct result of the appellee's failure to
timely pay his share of the taxes. The fact that the parties filed
separate tax returns during their marriage is irrelevant, because
the tax liability incurred was a marital debt.
Similarly, the marital accounting bill was incurred
during the marriage for the benefit of the parties and is also a
marital debt. Mr. Ira Sugar preceded Mr. Luther Hanson as the
parties' accountant, but part of Mr. Sugar's bill remained unpaid.
In a divorce action, the parties must comply with the
discovery rules pursuant to Rule 81(a)(2) of the West Virginia
Rules of Civil Procedure. The court may also require each party to
furnish information pertaining to all assets owned by the parties
including all debts and liabilities owed by the parties. W. Va.
Code, 48-2-33 [1992]. See also syllabus point 1, Hamstead v.
Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987), overruled on
another point, syl. pt. 4, Roig v. Roig, 178 W. Va. 781, 364 S.E.2d 794 (1987). This information is necessary to enable the circuit
court to carry out the equitable distribution process. More
specifically, equitable distribution allocates the assets and
liabilities between the parties.
Equitable distribution under W. Va. Code,
48-2-1, et seq., is a three-step process. The
first step is to classify the parties'
property as marital or nonmarital. The second
step is to value the marital assets. [W. Va.
Code, 48-2-32(d)(1) [1984]]. The third step
is to divide the marital assets between the
parties in accordance with the principles
contained in W. Va. Code, 48-2-32.
Syl. pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413
(1990). In the instant case, we are concerned with step two. "For
purposes of equitable distribution, W. Va. Code, 48-2-32(d)(1)
[1984], requires that a determination be made of the net value of
the marital property of the parties. Syl. pt. 2, Tankersley v.
Tankersley, 182 W. Va. 627, 390 S.E.2d 826 (1990). Specifically,
"[i]n computing the value of any net asset, the indebtedness owed
against such asset should ordinarily be deducted from its fair
market value." Syl. pt. 3, in part, LaRue v. LaRue, 172 W. Va.
158, 304 S.E.2d 312 (1983).
In the case before us, the record indicates that the
family law master appropriately considered the value of all the
parties' assets against the debts and liabilities of the parties in
arriving at an equal distribution of the same. This includes the
equitable distributions of the outstanding tax debt and accounting
bill incurred during the marriage. Thus, the ruling of the circuit
court that the parties assume equal responsibility of the
outstanding tax and accounting debts incurred during the marriage
is affirmed.
The final issue before us deals with the appellant's
contention that she is entitled to one-half of the equity in the
farm equipment which accrued during the parties' marriage. It is
undisputed that the farm equipment was acquired by the appellee
prior to the marriage and that marital assets were used to make
payments on the farm equipment during the marriage. A payment
schedule was introduced into evidence by the appellant which
reflects that the total equity paid on the equipment during the
marriage was $6,000.00.
The appellant correctly argues that she is entitled to
her equity in the farm equipment in the amount of $3,000.00.
Pursuant to W. Va. Code, 48-2-1(e)(2)(A) [1992], marital property,
as relevant herein, is:
the amount of any increase in value in the
separate property [separate property means
property acquired by a person before marriage.
W. Va. Code, 48-2-1(f)(1) [1992].] of either
of the parties to a marriage, which increase
results from an expenditure of funds which are
marital property, including an expenditure of
such funds which reduces indebtedness against
separate property, extinguishes liens, or
otherwise increases the net value of separate
property[.]
"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[.]" Syl. pt. 1, in part,
Somerville v. Somerville, 179 W. Va. 386, 369 S.E.2d 459 (1988).
To assist in the equitable distribution, W. Va. Code, 48-2-32(d)(7)(C) [1984] provides, in part:
To make such equitable distribution, the court
may: direct either party to pay a sum of
money to the other party in lieu of
transferring specific property or an interest
therein, if necessary to adjust the equities
and rights of the parties, which sum may be
paid in installments or otherwise, as the
court may direct[.]
When the factors outlined above are considered, it is
clear that the circuit court erred in holding that the farm
equipment is the appellee's sole and separate property. Therefore,
we find that the appellant is entitled to $3,000.00, or one-half of
the equity in the farm equipment which accumulated during the
marriage.
Accordingly, we find that the record has not been
sufficiently developed to determine that the circuit court's delay
in ruling upon this case was an abuse of the court's discretion,
and, furthermore, there is nothing in the record to indicate that
the retroactivity issue was ever raised below. The effective date
of the child support award will therefore remain October 1, 1991.
However, the circuit court did err in requiring the appellant to
pay one-half of the appellee's tax indebtedness which was incurred
prior to the marriage, and thus, the appellee shall reimburse the
appellant for one-half of the premarital tax debt which was paid
with marital funds, or $13,797.50. We further find that the
circuit court was correct in its decision that the appellant be
required to pay $4,392.00, which is one-half of the $5,784.00 in
outstanding taxes due and owing to the State, or $2,892.00, plus
one-half of the $3,000.00 accounting bill incurred during the
marriage, or $1,500.00. Finally, the circuit court's decision is
reversed insofar as we find the farm equipment to be marital
property, and as a result of its new status, the appellant is
entitled to $3,000.00, or one-half of the equity which accumulated
in the farm equipment during the marriage.
Thus, for the reasons set forth herein, this Court is of
the opinion that the final order of the Circuit Court of Kanawha
County should be affirmed, in part, and reversed, in part.
Affirmed, in part;
reversed, in part.
Footnote: 1 During evidentiary hearings, the testimony focused on
custody and visitation issues relating to the parties' child. The
appellant filed a petition for contempt on June 5, 1991, for the
appellee's failure to comply with the visitation schedules. In
reply, the appellee filed a counter petition for contempt on June
26, 1991, for the appellant's failure to comply with previous
visitation orders of the circuit court.
Footnote: 2 Rules for Practice and Procedure for Family Law are now
being considered for adoption by the Court. These rules are being
designed to govern the procedures applicable to actions filed
pursuant to chapters 48 and 48A (48-1-1, et seq. and 48A-1-1, et
seq.) of the W. Va. Code before family law masters and circuit
court judges. Chapter XI, section 43(c) of the rules addresses the
date the child support orders are to become effective. The rule
states that unless a circuit judge or family law master expressly
states otherwise, the effective date of the order establishing
support is the date the child support pleading was filed.
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