___________
___________
________________________________________________________
Charles R. Webb, Esq.
Gordon
Billheimer, Esq.
Giatras & Webb
Billheimer
Law Firm, PLLC
Charleston, West Virginia
Montgomery,
West Virginia
Attorney for Appellant
Attorney
for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICES DAVIS and STARCHER dissent and reserve the right to file dissenting
opinions.
2. “Equitable distribution . . . 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 [former] W.Va.Code, 48-2-32 [now W.Va. Code § 48-7-103].” Syllabus Point 1, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).
3. “Unless the parties have made a joint stipulation or property settlement agreement, under Rule 52(a) of the West Virginia Rules of Civil Procedure the circuit court [and family court] is required to make findings of fact and conclusions of law in its final order which reflect each step of the equitable distribution procedure. ” Syllabus Point 2, in part, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).
4. “'In any order making a division of marital property, the trial court . . . must set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted. [Former] W.Va.Code § 48-2-32(f) (1986) [now W.Va. Code § 48-7-106 (2001)].' Syllabus Point 2, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).” Syllabus Point 5, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
Per
Curiam:
This
case is before this Court upon appeal of a final order of the Circuit Court of
Kanawha County entered on January 31, 2005. In that order, the circuit court
refused to consider an appeal of an order of the Family Court of Kanawha County
filed by the appellant and respondent below, William Jack Stuck (hereinafter “Mr.
Stuck”), which granted him a divorce from the appellee and petitioner below
Anna Jean Duncan Stuck (hereinafter “Ms. Duncan” (See
footnote 1) ). In addition to granting the parties a divorce, the
family court order contained a finding that the parcel of real estate where the
parties resided during their marriage was marital property and, therefore, subject
to equitable distribution. In this appeal, Mr. Stuck contends that the residential
real estate was not marital property since he owned it prior to the marriage,
and thus, he seeks a reversal of that portion of the order which granted Ms.
Duncan a one-half interest in the property.
This
Court has before it the petition for appeal, the entire record, and the briefs
and argument of counsel. For the reasons set forth below, the final order is
reversed, and this case is remanded to the circuit court with directions to enter
an order remanding the case to the family court for further proceedings consistent
with this opinion.
On August 4, 2004, a hearing was held in the Family Court of Kanawha County, and the parties presented evidence with regard to the disposition of the subject property. On November 17, 2004, the family court entered an order with the following findings of fact and conclusions of law:
There
were two prenuptial agreements prepared prior to the marriage but the transfer
of the residence and the automobile (See
footnote 3) were some time after the marriage and the Court finds
that as to these two items the prenuptial agreements have no effect as both agreements
contemplate owning and transferring property after the marriage.
The
Court does find that the residential real estate is owned by the parties as joint
tenants. The court orders that the survivorship relationship be terminated effective
with this order. The respondent and petitioner are ordered to effectuate a new
deed or deeds in conformity with this order.
(Footnote added).
Subsequently,
Mr. Stuck filed an appeal with the circuit court. On January 31, 2005, the circuit
court refused the petition for appeal. Mr. Stuck then filed an appeal with this
Court.
This
Court's standard of review for an appeal from a circuit court that reviewed a
family court's final order, or refused to consider a petition for appeal to review
a family court's final order, is the same. In reviewing a final order entered
by a circuit court judge upon a review of, or upon a refusal to review, a final
order of a family court judge, we review the findings of fact made by the family
court judge under the clearly erroneous standard, and the application of law
to the facts under an abuse of discretion standard. We review questions of law de
novo.
See W.Va. Code § 51-2A-15(b) (2001). With these standards in mind,
we now consider the issues presented in this case.
Mr.
Stuck first asserts that the circuit court erred by finding that his separate
property became marital property when he executed a deed placing the real estate
in both his and Ms. Duncan's names as joint tenants with the right of survivorship.
Mr. Stuck maintains that in executing the deed he did not intend to make the
property a gift to the marital estate.
Rather, the deed was only intended as a probate instrument in the event that
he died while married to Ms. Duncan. He wanted her to have a place to live
if he passed away first, and he believed Ms. Duncan would provide that upon
her death, the property would be inherited by his daughters. Mr. Stuck says
that given the existence of the prenuptial agreements, it is clear that he
did not intend for the property to be part of the marital estate.
In Syllabus
Point 4 of the seminal case of Whiting v. Whiting, 183 W.Va. 451, 396
S.E.2d 413 (1990), this Court held that:
Where,
during the course of the marriage, one spouse transfers title to his or her separate
property into the joint names of both spouses, a presumption that the transferring
spouse intended to make a gift of the property to the marital estate is consistent
with the principles underlying our equitable distribution statute.
We stressed in Whiting, however, that “the joint titling of the
separate property gives rise only to a rebuttable presumption of gift to the
marital estate.” 396 S.E.2d at 421, 183 W.Va. at 459. We further noted
that, “The presumption may be overcome by a showing that the transferring
spouse did not intend to transfer the property to joint ownership or was induced
to do so by fraud, coercion, duress, or deception.” Id. (Footnote
omitted).
In Burnside
v. Burnside, 194 W.Va. 263, 270, 460 S.E.2d 264, 271 (1995), this Court expanded
upon Whiting by providing an extensive analysis regarding the type of
evidence that is sufficient to rebut the presumption. In Burnside, this
Court was asked to determine whether the family law master (See
footnote 4) and circuit court erred by finding that Mrs. Burnside
had made a contribution to the marital estate when she used separate funds
she had inherited to payoff the parties' mortgage on the marital home. This
Court concluded that while both the family law master and circuit court had
made a finding that Mrs. Burnside did not prove she was under “coercion,
duress, or deception” when she paid off the mortgage, they failed to make
a specific finding regarding Mrs. Burnside's “intent” to make a gift.
Accordingly, the case was remanded for further consideration of the intent
aspect of the presumption with guidance as to what type of evidence would be
sufficient to rebut the presumption that a gift had been made to the martial
estate.
In the
case sub judice, the family court, like the family law master and circuit
court in Burnside, found that Mr. Stuck had not proved that he was under “coercion,
duress and deception” when he transferred the property. The family court
further concluded that even if Mr. Stuck had intended to only transfer the property
so that Ms. Duncan would have a place to live should he pass away first, that
absent some limitation to that effect in the deed, the real estate had to be
deemed marital property. In other words, regardless of Mr. Stuck's intent, the
property was part of the marital estate because the deed specified that the property
was owned by the parties jointly with the right of survivorship. Clearly, the
family court misapplied the law and erred by not considering Mr. Stuck's intent.
Pursuant
to Whiting and Burnside, if Mr. Stuck is able to prove that he
never intended to make a gift to the marital estate, then the real estate at
issue must be deemed his separate property and not be subject to equitable distribution. (See
footnote 5) Therefore, we reverse the final order and remand this
case for consideration of the “intent” aspect of the presumption. The
family court is directed to make sufficient findings of fact with regard to whether
Mr. Stuck intended to make a gift of his separate property to the marital estate.
In doing so, the family court should be mindful of the examples set forth in Burnside with
regard to the type of evidence that is sufficient to overcome the presumption.
As his
second assignment of error, Mr. Stuck claims that the family court erred by failing
to apply the third step in the equitable distribution analysis. We agree. In
Syllabus Point 1 of Whiting, this Court held that,
Equitable
distribution . . . 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 [former] W.Va.Code, 48-2-32 [now
W.Va. Code § 48-7-103 (2001)]. (See
footnote 6)
(Footnote added). In this case, it is clear that the family court did not complete
the third step of the equitable distribution process. In fact, the family court's
order states, “This court, under the circumstances and controlling law
stated, does specifically not rule on the equitable aspects of the transfer.” The
family court order then concludes that “the residential real estate is
owned by the parties as joint tenants.”
In Syllabus
Point 2, in part, of Whiting, this Court held that,
Unless
the parties have made a joint stipulation or property settlement agreement, (See
footnote 7) under Rule 52(a) of the West Virginia Rules of Civil
Procedure the circuit court [and family court] is required to make findings of
fact and conclusions of law in its final order which reflect each step of the
equitable distribution procedure.
(Footnote added). Moreover, Syllabus Point 5 of Burnside mandates:
“In
any order making a division of marital property, the trial court . . . must set
out in detail its findings of fact and conclusions of law, and the reasons for
dividing the property in the manner adopted. [Former] W.Va.Code § 48-2-32(f)
(1986)
[now W.Va. Code § 48-7-106 (2001).].” Syllabus Point 2, Somerville
v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).
Accordingly, upon remand, should the family court determine that the subject
property is part of the marital estate, then the court must complete the remaining
steps of the equitable distribution process (See
footnote 8) and set forth adequate findings of fact and conclusions
of law which
explain the reasons for dividing the property in the manner adopted. (See
footnote 9)