Hinerman v. Hinerman
Annotate this Case
January 1995 Term
___________
No. 22652
___________
DAVID E. HINERMAN,
Plaintiff Below, Appellee
v.
MARY ALICE HINERMAN,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Hancock County
Honorable George Spillers, Judge
Civil Action No. 91-C-18
AFFIRMED, IN PART,
REVERSED, IN PART, AND REMANDED.
___________________________________________________
Submitted: May 3, 1995
Filed: June 19, 1995
Penny E. Loucas
Weirton, West Virginia
Attorney for the Appellant
William T. Fahey
Hinerman & Fahey
Weirton, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "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. The third step is to divide the marital
estate 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).
2. "The doctrine of equitable distribution permits a
spouse, who has made a material economic contribution toward the
acquisition of property which is titled in the name of or under the
control of the other spouse, to claim an equitable interest in such
property in a proceeding seeking a divorce. Because these are
economic contributions, the right to claim such equitable relief is
not barred because the party seeking them may be found at fault in
the divorce action itself." Syl. pt. 2, LaRue v. LaRue, 172 W. Va.
158, 304 S.E.2d 312 (1983).
3. "There are three broad inquiries that need to be
considered in regard to rehabilitative alimony: (1) whether in
view of the length of the marriage and the age, health, and skills
of the dependent spouse, it should be granted; (2) if it is
feasible, then the amount and duration of rehabilitative alimony
must be determined; and (3) consideration should be given to
continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony." Syl. pt. 3, Molnar v. Molnar, 173 W. Va.
200, 314 S.E.2d 73 (1984).
Per Curiam:
This action is before this Court upon the appeal of the
appellant, Mary Alice Hinerman, from the final order of the Circuit
Court of Hancock County, West Virginia, entered on February 25,
1994. Pursuant to that order, the circuit court adopted, inter
alia, the determination of the family law master that the residence
of the appellant and the appellee, David E. Hinerman, was the
separate property of David E. Hinerman and not subject to equitable
distribution. This Court has before it all matters of record and
the briefs of counsel. For the reasons stated below, this Court
affirms, in part, and reverses, in part, the final order of the
Circuit Court of Hancock County, and we remand this action to that
court for further proceedings.
I
The record indicates that in 1968, in contemplation of
marriage, the appellant and the appellee shopped for and located a
residence in Weirton, West Virginia. By deed dated October 8,
1968, the residence was purchased and titled in the name of David
E. Hinerman, the appellee. The purchase price for the property was
$16,500, and the appellee paid the down payment and all of the
subsequent trust deed installments until the debt was retired
during the marriage.
On November 30, 1968, soon after the purchase, the
appellant and the appellee were married. Mary Alice Hinerman's
name, however, was never added to the title, even though the
appellee, in testimony before the family law master, stated that he intended to add the appellant's name to the title after the date of
marriage.
The appellant asserted that the appellee never kept his
promise to add her name to the title and, furthermore, explained
before the family law master:
He said that my name would not go on it
when the thing was purchased because I was
teaching school and I was single, and it would
look bad in the paper if there were two
separate names; I believed him[.] After we
were married, as time went on I said, 'Dave,
how about putting my name on the house?' He
said, 'Oh, no, Mary Alice, if something would
happen at dancing school [operated by Mary
Alice Hinerman] you would be sued and we would
lose the house; so, it will stay in my name
because that way we don't lose anything.
During the marriage, David Hinerman, the appellee, worked
for Weirton Steel Corporation at a recent salary of approximately
$37,000 per year. Moreover, in 1979, during the marriage, the
appellee and his brother purchased and operated a rental building
in Weirton. The purchase price was $63,600. The record indicates
that the down payment for the building was given to the appellee
and his brother by their parents, and the trust deed for the
balance of the purchase was retired from rental payments.
The appellant, during the marriage, operated a children's
dancing school, which, in recent years, brought the appellant an
annual net income of approximately $2,000. In addition, the
appellant worked as an elementary school teacher until the birth of
the parties' only child, at which time, early in the marriage, the
appellant left her teaching employment.
With regard to the principal expenses of the parties, the
testimony before the family law master revealed that, although
David E. Hinerman paid the trust deed installments for the marital
residence until the debt was retired, the appellant paid for their
child's education at parochial schools through grade twelve.
Thereafter, the appellee paid the majority of their child's
expenses for a college education at Ohio State University.
The marriage of the parties deteriorated, and in 1985
divorce proceedings were instituted. A reconciliation resulted in
the withdrawal of those proceedings. The reconciliation failed,
however, and in January, 1991, a complaint for divorce was filed by
David E. Hinerman. Pursuant to an order entered on November 6,
1992, the Circuit Court of Hancock County bifurcated the
proceedings by (1) granting the parties a divorce and (2) reserving
for further consideration the issues of equitable distribution and
support.
Thereafter, the family law master took evidence upon the
issues of equitable distribution and support, and in an October,
1993, report concluded and recommended, inter alia, that (1)
subject to $6,750 to be paid to Mary Alice Hinerman representing an
equitable share in the retirement of the trust deed upon the
marital residence, the marital residence was the separate property
of David E. Hinerman and not subject to equitable distribution; (2)
the appellee's interest in the rental building, jointly owned with
his brother, was also the appellee's separate property; (3) the
appellant, Mary Alice Hinerman, was entitled to rehabilitative alimony at $400 per month for three years, rather than permanent
alimony; and (4) the appellant and the appellee should bear their
own attorney fees. Those conclusions and recommendations were
adopted by the Circuit Court of Hancock County pursuant to the
final order of February 25, 1994, and form the basis of this
appeal.
II
As this Court recognized in Marilyn H. v. Roger Lee H.,
___ W. Va. ___, ___, 455 S.E.2d 570, 573 (1995), a recommended
order of a family law master is reviewable by a circuit court
pursuant to statute, W. Va. Code, 48A-4-16 [1993], W. Va. Code,
48A-4-20 [1993], and pursuant to this Court's Rules of Practice and
Procedure for Family Law. The final order of a circuit court in
such cases is, of course, reviewable by this Court. Moreover, we
have recently recognized that rulings upon questions of law are
reviewed de novo. Stephen L. H. v. Sherry L. H., No. 22084, ___
W. Va. ___ n. 19, ___ S.E.2d ___ n. 19 (Mar. 6, 1995); State v.
Honaker, ___ W. Va. ___, ___, 454 S.E.2d 96, 101 (1994); Adkins v.
Gatson, ___ W. Va. ___, ___, 453 S.E.2d 395, 399 (1994); State v.
Stuart, ___ W. Va. ___, ___, 452 S.E.2d 886, 891 (1994); syl. pt.
3, Committee on Legal Ethics v. McCorkle, ___ W. Va. ___, 452 S.E.2d 377 (1994).
The first issue raised by the appellant concerns her
assertion that she was entitled to an equitable distribution of
fifty percent of the value of the marital residence, less the
appellee's down payment. The record indicates that the residence was purchased for $16,500 in 1968, and, during this litigation, was
appraised at $38,000 and sold for that amount. The family law
master and circuit court determined that the residence was not
subject to equitable distribution. Specifically, the family law
master found that the marital residence "was acquired by the
plaintiff [the appellee] prior to the marriage and has always been
titled in the name of the plaintiff alone, and is his separate
property." The appellant was awarded $6,750 as to the residence,
representing an equitable share in the retirement of the trust deed
upon the property.
The definitions of "marital property" and "separate
property" are statutory and are found in W. Va. Code, 48-2-1
[1992]. Moreover, provisions concerning the disposition of marital
property are also statutory and are found in W. Va. Code, 48-2-32
[1984]. Those statutes were discussed by this Court in Whiting v.
Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990), syllabus point 1 of
which declares:
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. The
third step is to divide the marital estate
between the parties in accordance with the
principles contained in W. Va. Code, 48-2-32.
Specifically, we stated in Whiting as follows, the quoted language
of W. Va. Code, 48-2-1 [1986], therein appearing in the current
version of that statute:
For purposes of equitable distribution,
'marital property' is defined in W. Va. Code,
48-2-1(e)(1) (1986), as '[a]ll property and earnings acquired by either spouse during a
marriage, . . . regardless of the form of
ownership, . . . except that marital property
shall not include separate property . . . .'
'Separate property' is defined in W. Va. Code,
48-2-1(f), as including property acquired by a
spouse before the marriage. Whether a
particular unit of property is marital or
separate property is primarily a question of
law.
183 W. Va. at 454-55, 396 S.E.2d at 416-17.
Many of the statutory provisions in this area, however,
were enacted in light of the opinion of this Court in the leading
case of LaRue v. LaRue, 172 W. Va. 158, 304 S.E.2d 312 (1983). In
syllabus point 2 of LaRue, we held:
The doctrine of equitable distribution
permits a spouse, who has made a material
economic contribution toward the acquisition
of property which is titled in the name of or
under the control of the other spouse, to
claim an equitable interest in such property
in a proceeding seeking a divorce. Because
these are economic contributions, the right to
claim such equitable relief is not barred
because the party seeking them may be found at
fault in the divorce action itself.
See also syl. pt. 3, Cross v. Cross, 178 W. Va. 563, 363 S.E.2d 449
(1987); Burger v. Burger, 176 W. Va. 416, 419, 345 S.E.2d 18, 21
(1986): "[A] court is empowered to divide marital property
irrespective of nominal or actual title."
In this action, it is clear that the marital residence
was marital property and subject to equitable distribution. The
appellant and the appellee shopped for and located the property,
and the appellee stated that he purchased the residence in
contemplation of marriage. The appellant and the appellee were
married soon after the October 8, 1968, deed. Moreover, the appellee, in his testimony before the family law master, indicated
that he intended to add the appellant's name to the title after the
date of marriage. The testimony of the appellant, that her name
was not added to the title because the parties' were single at the
time of purchase and because, later, the parties were afraid that
the property would be exposed to claims because of the appellant's
dancing school, was unrefuted. In addition, the deed of trust
payments were made from the joint checking account of the parties,
although the appellee was the principal contributor to that
account.
All of the evidence of record suggests that the appellant
and the appellee used the property as their marital home, to which
both made economic contributions within the meaning of W. Va. Code,
48-2-1, et seq. and LaRue, supra. Accordingly, the final order of
the Circuit Court of Hancock County, that the marital residence was
the separate property of the appellee, David E. Hinerman, is
reversed, and this action is remanded to the circuit court for a
determination and distribution of the appellant's fifty percent of
the value of the marital residence, less an amount to be determined
concerning the appellee's down payment upon the property and less
the $6,750 previously awarded the appellant.
By contrast, the evidence in this action suggests that
the appellee's interest in the rental building, jointly owned with
his brother, was the appellee's separate property. Although that
property was acquired by the appellee during his marriage, the down
payment was provided by the appellee's parents, and the trust deed for the balance of the purchase was retired from rental payments.
The appellee testified that a separate checking account was
maintained for the rental building. Also, the appellee stated that
the appellant was reimbursed for a $1,000 contribution she made for
a new roof for the building. Ultimately, the rental building
declined in value. This Court is of the opinion that, under the
circumstances set forth in the record, the Circuit Court of Hancock
County was correct in concluding that the appellee's interest in
the rental building was separate property, and that aspect of the
final order of the circuit court is affirmed.
With regard to rehabilitative alimony, the family law
master noted the appellant's educational background and resulting
earning capacity and concluded that the appellant was entitled to
rehabilitative alimony at $400 per month for three years, rather
than permanent alimony. The circuit court adopted that conclusion.
The appellant contends, however, that she should have been given an
award of permanent alimony.
In syllabus point 1 of Molnar v. Molnar, 173 W. Va. 200,
314 S.E.2d 73 (1984), this Court stated: "The concept of
'rehabilitative alimony' generally connotes an attempt to encourage
a dependent spouse to become self-supporting by providing alimony
for a limited period of time during which gainful employment can be
obtained."
The circumstances in Molnar are similar to the facts in
this action. In Molnar, the parties were divorced after twenty-
five years of marriage, and, although the former wife, age fifty-three, had been employed during the marriage, her income was small
compared to that of her former husband. The former wife was
awarded rehabilitative alimony by the circuit court. Discussing
the length of the marriage and the former wife's age and limited
opportunities in the job market, this Court, in Molnar, remanded
the case to the circuit court for a reconsideration of the alimony
issue.
Recognizing that age, in particular, reflects upon the
ability to work, we held in syllabus point 3 of Molnar:
There are three broad inquiries that need
to be considered in regard to rehabilitative
alimony: (1) whether in view of the length of
the marriage and the age, health, and skills
of the dependent spouse, it should be granted;
(2) if it is feasible, then the amount and
duration of rehabilitative alimony must be
determined; and (3) consideration should be
given to continuing jurisdiction to reconsider
the amount and duration of rehabilitative
alimony.
With regard to continuing jurisdiction, this Court
observed, in Molnar, that it is generally held "in the case of an
older dependent spouse, who has had a lengthy marriage, that the
court should retain continuing jurisdiction unless the record is
clear that the dependent spouse will be able to be financially
self-supporting at the end of the rehabilitative alimony period."
173 W. Va. at 205, 314 S.E.2d at 78.
In the action before this Court, the appellant and the
appellee were married for over twenty years, and the appellant is
more than fifty years old. She has been away from the teaching
profession for approximately twenty years. The appellant left that profession upon the birth of the child of the parties. The
evidence is undisputed that the children's dancing school, operated
by the appellant for more than thirty years, has been in financial
decline. Recently, its annual net income has been approximately
$2,000. In spite of the language of Molnar concerning continuing
jurisdiction in this context, the family law master and circuit
court determined that, after three years, rehabilitative alimony
would be barred.
The length of the marriage in this action, the age of the
appellant, and her limited opportunities in the job market, as in
Molnar, are significant factors to be considered in the context of
alimony. It is unlikely that the children's dancing school will
substantially contribute to the appellant's income in the future.
This Court is of the opinion, therefore, that the issue of alimony,
and whether it should be rehabilitative or permanent, and the
amount, must be reconsidered by the circuit court. The appellee's
statement to this Court that the appellant has recently found a
permanent teaching position should be developed and considered
below. Therefore, the order of the Circuit Court of Hancock County
as to the award of rehabilitative alimony is set aside.
Finally, the appellant contends that the circuit court
committed error in not awarding her attorney fees concerning this
litigation. The only finding upon that point with any specificity
was a statement by the family law master in his October, 1993
report to the effect that the appellant had needlessly protracted
the litigation by searching, unsuccessfully, for hidden assets of the appellee. The circuit court stated that the family law
master's finding in that regard was proper.
Although this Court has consistently held that a
determination as to an award of attorney fees in an action such as
this is within the sound discretion of the circuit court, Law v.
Law, 186 W. Va. 376, 380, 412 S.E.2d 777, 781 (1991), Hopkins v.
Yarbrough, 168 W. Va. 480, 489, 284 S.E.2d 907, 912 (1981), we have
indicated that such a determination should be based upon adequate
findings and not perfunctorily made. Burger, supra, 176 W. Va. at
418, 345 S.E.2d at 20.
The record before this Court does not readily demonstrate
how this litigation was protracted beyond the pursuit of a
legitimate theory, though ultimately unsuccessful, that the
appellee had hidden certain assets. In any event, no explanation
as to why the litigation was needlessly protracted was provided by
the family law master or the circuit court. Moreover, other
factors relevant to an award of attorney fees, such as the amount
of the fees in this action and the ability of the parties to pay
them, were not discussed in the findings and conclusions below.
Justice Cleckley, in his concurring opinion in Pratt v.
Pratt, ___ W. Va. ___, 454 S.E.2d 400, 405 (1994), stated in a
domestic relations matter that "we need the lower tribunals to
better explain their decision so that we can give that decision
proper appellate scrutiny." Accordingly, inasmuch as this action
is being remanded to the circuit court for further proceedings, the
circuit court is directed to reconsider the attorney fee issue and make appropriate findings. Consequently, the order of the Circuit
Court of Hancock County denying the appellant attorney fees is set
aside. Hopkins, supra, 168 W. Va. at 489, 284 S.E.2d at 912.
Upon all of the above, the final order of the Circuit
Court of Hancock County, entered on February 25, 1994, is affirmed
in part, reversed, in part, and this case is remanded to that court
for further proceedings.
Affirmed, in part,
reversed, in part,
and remanded.
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