Davis, Justice:
The appellant herein and defendant below,
Kenneth Fortney [hereinafter referred to as “Mr. Fortney”], appeals
from an order entered September 8, 2003, by the Circuit Court of Marion County.
By that order, the court determined that W. Va. Code § 38-8-1
(1999) (Supp. 1999) did not prevent the appellee herein and plaintiff below,
Delmus Burge [hereinafter referred to as “Mr. Burge”], from executing
and suggesting upon Mr. Fortney's individual retirement account [hereinafter
referred to as “IRA”] funds held by The Equitable Life Assurance Society
[hereinafter referred to as “The Equitable”] in order to satisfy the
judgment he earlier had obtained against Mr. Fortney. On appeal to this Court,
Mr. Fortney contends that the circuit court incorrectly allowed his IRA funds
to be subjected to Mr. Burge's writ of execution and suggestion. Upon a review
of the parties' arguments, the record designated for appellate consideration,
and the pertinent authorities, we affirm the decision of the Circuit Court of
Marion County.
1. The
defendants [Mr. Fortney and Kevin] breached a contract with the plaintiff [Mr.
Burge] by failing to pay for labor and materials supplied by the plaintiff;
2. The
defendants have been unjustly enriched by the plaintiff; and,
3. The
defendants fraudulently induced the plaintiff into continuing to supply labor
and services with
no intention of paying the plaintiff and, such actions were done with deliberate
intent to hinder, defraud and delay full payment and in reckless, willful,
intentional and wanton disregard to the plaintiff's rights.
On the day after the circuit court entered judgment for Mr. Burge, and on the
same day that the circuit court was conducting the damages portion of Mr. Burge's
civil case, Mr. Fortney filed a petition for Chapter 7 bankruptcy. (See
footnote 1) By order entered October 7, 2001, the bankruptcy court
lifted the automatic stay of actions against Mr. Fortney to permit the circuit
court to continue its determination of Mr. Burge's damages caused by Mr. Fortney's
misconduct. By order entered October 12, 2001, the circuit court entered judgment
in favor of Mr. Burge and against Kevin, in light of Mr. Fortney's pending
bankruptcy action, awarding damages to Mr. Burge in the total amount of $31,855.51. (See
footnote 2) By agreed order of
February 6, 2002, said judgment was additionally entered jointly and severally
against Mr. Fortney.
Thereafter, Mr. Burge unsuccessfully tried
to satisfy his judgment against Mr. Fortney, but discovered he had no available
assets. At approximately the same time, Mr. Fortney attempted to discharge his
judgment debt to Mr. Burge in his aforementioned bankruptcy proceeding. In response
to this attempted discharge, Mr. Burge filed an adversary proceeding objecting
to Mr. Fortney's attempted discharge of this obligation. By orders entered October
28 and 29, 2002, the bankruptcy court determined that “the debt due and
owing to Delmus V. Burge by the Debtor/Defendant [Mr. Fortney] is deemed
NONDISCHARGEABLE.” (Emphasis in original).
Ultimately, Mr. Burge learned that Mr. Fortney
had an IRA account (See footnote
3) with The Equitable, containing approximately $64,000.00, and attempted
to satisfy his judgment with those funds through a Writ of Suggestion (See
footnote 4) and Execution filed on January 6, 2003. Mr. Fortney objected,
claiming that such monies were deemed exempt by W. Va. Code § 38-8-1
(1999) (Supp. 1999), which provides, in pertinent part, that
[a]ny husband, wife, parent or other head of a household residing in this state, or the infant children of deceased parents, may set apart and hold personal property not exceeding one thousand dollars in value to be exempt from execution or other process, except as hereinafter provided. . . . Provided, however, That funds on deposit in an individual retirement account (IRA) including a simplified employee pension (SEP) in the name of the defendant are exempt from attachment: Provided further, That such amount shall be exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under section 4973 [26 U.S.C. § 4973] and/or section 4979 [26 U.S.C. § 4979] of the Internal Revenue Code of 1986, or any successor provisions, regardless of whether such tax is or has been paid.
(Emphasis added). Ruling upon this matter, the circuit court, by order entered September 8, 2003, determined that Mr. Fortney's IRA funds were not exempt from suggestion and execution and that Mr. Burge was entitled to such monies in satisfaction of his judgment against Mr. Fortney. In so ruling, the circuit court determined that
[t]he
Court finds as a matter of law that 38-8-1 does not exempt the suggested funds
from execution and suggestion. The Court finds as a matter of law that the legislature
chose to exempt such funds only from “attachment”. “Attachment” has
as its commonly accepted usage the meaning of a judicial process of seizing and
holding one's property prior to a plaintiff obtaining judgment and, therefore,
does not apply to this matter. The Court finds as a matter of law that the plaintiff
is not seeking to attach the defendant's personal property but, is seeking to
obtain such funds by way of postjudgment execution and suggestion. The statute
is not ambiguous and, therefore, not subject to any form of interpretative construction.
ACCORDINGLY,
it is the ORDER and JUDGMENT of this Court that the funds held
by the suggestee, The Equitable Life Assurance Society, belonging to Kenneth
Fortney, judgment debtor, are not subject to exemption pursuant to the
plaintiff's Writ of Execution and Suggestion.
(Emphasis in original). From this adverse ruling, Mr. Fortney now appeals to
this Court.
[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108,
492 S.E.2d 167 (1997).
More specifically, we accord plenary review
to questions of law and statutory interpretations decided by a lower court. “Where
the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard
of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va.
138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co.
v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424
(1995) (“Interpreting a statute or an administrative rule or regulation
presents a purely legal question subject to de novo review.”).
Mindful of these standards, we proceed to
consider the parties' arguments.
At issue in this appeal is the meaning of the language of W. Va. Code § 38-8- 1 (1999) (Supp. 1999), which provides, in pertinent part, that
[a]ny husband, wife, parent or other head of a household residing in this state, or the infant children of deceased parents, may set apart and hold personal property not exceeding one thousand dollars in value to be exempt from execution or other process, except as hereinafter provided. . . . Provided, however, That funds on deposit in an individual retirement account (IRA) including a simplified employee pension (SEP) in the name of the defendant are exempt from attachment: Provided further, That such amount shall be exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under section 4973 [26 U.S.C. § 4973] and/or section 4979 [26 U.S.C. § 4979] of the Internal Revenue Code of 1986, or any successor provisions, regardless of whether such tax is or has been paid.
(Emphasis added). Before we can ascertain whether the circuit court correctly
applied this statute to the facts of this case, however, we must first discern
the meaning of this enactment.
Typically, when we are faced with a matter
of statutory construction, we look first to the underlying legislative intent.
In this regard, we have held that “[t]he primary object in construing a
statute is to ascertain and give effect to the intent of the Legislature.” Syl.
pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219
S.E.2d 361 (1975). “Once the legislative intent underlying a particular
statute has been ascertained, we proceed to consider the precise language thereof.” State
ex rel. McGraw v. Combs Servs., 206 W. Va. 512, 518, 526 S.E.2d 34,
40 (1999). With respect to the particular language
employed by the Legislature, we apply, rather than construe, language that
is plain. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but
will be given full force and effect.” Syl. pt. 2, State v. Epperly,
135 W. Va. 877, 65 S.E.2d 488 (1951). Accord DeVane v. Kennedy,
205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999) (“Where the language
of a statutory provision is plain, its terms should be applied as written and
not construed.” (citations omitted)).
In the case sub judice, we find that
the above-quoted statutory language of W. Va. Code § 38-8-1 is
plain and unambiguous. That portion of the provision directly governing the instant
appeal provides that “funds on deposit in an individual retirement account
(IRA) . . . in the name of the defendant are exempt from attachment[.]” The
only portion of this language that is disputed by the parties is the meaning
and effect of the word “attachment”. However, the Legislature has provided
guidance therefor by clarifying the meaning of the word “attachment” in
W. Va. Code § 38-7-1 (1981) (Repl. Vol. 1997):
In any civil action for the recovery of any claim or debt arising out of contract, or to recover damages for any wrong, the plaintiff, after service of the summons upon the defendant, or at any time thereafter and before judgment may have an order of attachment against the property of the defendant . . . .
W. Va. Code § 38-7-1 (emphasis added). Thus, it is clear that
the Legislature intended the word “attachment” to refer to a prejudgment
seizure of property to provide security for the satisfaction of a claim for
damages or a debt. Therefore, we hold that the plain language
of W. Va. Code § 38-8-1 (1999) (Supp. 1999) exempts from attachment “funds
on deposit in an individual retirement account (IRA) . . . in the
name of the defendant.” We hold further that, pursuant to W. Va.
Code § 38-7-1 (1981) (Repl. Vol. 1997), an “attachment” refers
to an attempt to secure property for the repayment of a claim for damages or
a debt before judgment has been entered therefor.
Applying these holdings to the facts before
us, we find that the circuit court correctly interpreted W. Va. Code § 38-8-1
and properly applied that interpretation to permit Mr. Burge to suggest upon
Mr. Fortney's IRA funds. Had Mr. Burge attempted to attach Mr. Fortney's IRA
monies before he had obtained a judgment against him, that attachment
would clearly have been prohibited by the plain language of W. Va. Code § 38-
8-1. But those are not the facts currently before the Court. Rather, Mr. Burge
sought to suggest upon Mr. Fortney's IRA funds only after he had obtained
a judgment against him. (See
footnote 6) As such, Mr. Burge's suggestion was clearly permitted
by W. Va. Code § 38-8-1 as it was in force at the time of the
events at issue herein. (See
footnote 7) Accordingly, we affirm the circuit court's
ruling which found Mr. Burge's suggestion to be proper.