Patrick L. Cottrell
Richard E. Boyle, Jr.
Charleston, West Virginia Constance H. Weber
Attorney for the Appellant Erin R. Brewster
Jill D. Sinatra
Kay, Casto & Chaney, P.L.L.C.
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. “This Court reviews the circuit court's final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess
v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).
2. “A
circuit court lacks jurisdiction under W.Va.Code, 48-2-15(e) [1986]
to modify a divorce decree when the modification proceeding does not involve
alimony, child support or child custody.” Syl. Pt. 2,
Segal v. Beard, 181 W. Va. 92, 380 S.E.2d 444 (1989). 3. “Where a court, by an order in the first instance,
disposes of multiple claims and adjudicates all controversies, but a party
by a Rule 59(e) R.C.P. motion asks the court to alter or amend the order as
to one of the claims, but not the other, the Rule 59(e) motion extends the
time of finality of the order as it relates to the claim contained in the
59(e) motion until the Rule 59(e) motion is determined, but the order in the
first instance is final as to the other claims determined therein, and the
time for appeal as to that claim runs from the entry of the order in the first
instance.” Syl. Pt. 6, Dixon v. American Indus. Leasing Co., 157
W. Va. 735, 205 S.E.2d 4 (1974).
5.
Per Curiam: This is an appeal by Tammy Zikos
(See footnote 1) (hereinafter
“Appellant”), Administratrix of the Estate of Mary Alice Bayles
Clark (hereinafter “decedent” or “Mrs. Clark”), from a
final order of the Circuit Court of Kanawha County denying her motion to set
aside a September 17, 1998, order which had set aside a 1991 divorce between
the decedent and Mr. Jack Ray Clark (hereinafter “Appellee” or “Mr.
Clark”). The Appellant contends that the lower court erred in setting
aside the 1991 divorce order. Based upon our review of the arguments of counsel
and the record in this matter, we reverse the order of the lower court, order
reinstatement of the 1991 order of divorce, and remand for final calculation
of alimony arrearages and outstanding issues of property distribution.
On October 7, 1994, Mrs. Clark initiated a contempt proceeding against the
Appellee for failure to pay alimony. On January 4, 1995, the Appellee petitioned the lower
court for a modification of alimony. In response, by order dated January 25, 1995, the lower
court reaffirmed “the obligations as set out in the previous Order dated August 15, 1991,”
and directed judgment against the Appellee in the amount of $11,400.00 in alimony
arrearage. By order dated February 28, 1995, the Appellee's request for modification of
alimony was denied by the family law master. That denial was confirmed by the lower court
on March 6, 1995.
We disagree with the Appellee's characterization of
the impact of lower court orders in this matter. This Court has consistently
observed that a circuit court does not infinitely retain subject matter jurisdiction
over a divorce case. As this Court explained in State ex rel. Watson v.
Rodgers, 129 W. Va. 174, 39 S.E.2d 268 (1946), circuit courts have no
inherent powers in divorce cases; rather, the circuit court has only the specified
statutory powers assigned to it in such matters. Id. at 176, 39 S.E.2d
at 269. (See
footnote 3) In Crouch v. Easley, 119 W. Va. 208,
192 S.E. 690 (1937), this Court specified that in a divorce suit which does
not involve minor children, maintenance or property rights, a decree of divorce
a vinculo terminates the suit because the marital relation is the only subject
before the court. In syllabus point two of Segal v. Beard, 181 W. Va.
92, 380 S.E.2d 444 (1989), this Court again addressed this issue as follows:
“A circuit court lacks jurisdiction under W.Va.Code, 48-2-15(e) [1986] to modify a divorce decree when the modification proceeding
does not involve alimony, child support or child custody.”
4.
On August 15, 1991, a final divorce decree was
entered by the lower court, based upon the recommendation of the family law
master. Through this order, Mrs. Mary Alice Bayles Clark and Mr. Jack Ray Clark
were divorced, and Mrs. Clark was awarded possession of the marital home and
$300.00 monthly alimony. On August 22, 1991, the Appellee filed a “Motion
to Stay Enforcement of the Property Provisions in the Final Decree” based upon the fact that neither the Appellee nor his counsel had received
notice of the final hearing before the family law master. Consequently, on
August 27, 1992, the lower court entered an order temporarily staying the
property provisions of the final divorce decree pending a ruling on the Appellee's
untimely exceptions. Specifically, the language of that order provided as
follows: “[I]t is hereby ORDERED that this matter be remanded to the
Family Law Master for additional hearings and that the property settlement
provisions of the final order of August 15, 1991, remain stayed pending further
hearings.”
(See footnote 2) This August 27, 1992, order does not indicate
that the 1991 dissolution of the marriage is altered or affected in any manner
by the stay of the property issues.
On September 8, 1995, the lower court held a hearing
on Mrs. Clark's petition for contempt. On September 17, 1998, the lower court,
sua sponte, entered an order setting aside the August 15, 1991, divorce decree
in its entirety. The September 1998 order was not signed by counsel for either
party. On August 8, 2000, Mrs. Clark died intestate. The Appellee contended
that he and the decedent were still married at the time of her death, giving
the Appellee rights of inheritance in the estate of the decedent.
On November 1, 2000, the Appellant, as administratrix
of her mother's estate, filed a motion to set aside the lower court's September
1998 order. The Appellant also filed a Motion for Declaratory Relief, requesting
that the lower court clarify the marital status of the parties at the time of
the decedent's death and determine the accrued alimony due and payable by the
Appellee to the decedent's estate. By order dated March 27, 2002, the lower
court refused to set aside the September 1998 order, ruling that the decedent
and the Appellee were still married at the time of the decedent's death and
that the Appellee had a right of inheritance. The Appellant appeals that determination,
asserting that the lower court erred in finding that no final order of divorce
had been entered by the time of the decedent's death.
This Court expressed the appropriate standard of review in syllabus point four
of Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996), as follows: “This Court
reviews the circuit court's final order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a clearly erroneous standard;
conclusions of law are reviewed de novo.” This Court has also recognized that the “purpose
of a declaratory judgment action is to resolve legal questions [and] a circuit court's ultimate
resolution in a declaratory judgment action is reviewed de novo.” Cox v. Amick, 195 W. Va.
608, 612, 466 S.E.2d 459, 463 (1995). The standing and jurisdictional issues raised in the
case sub judice are legal matters subject to de novo review in this Court.
The Appellee contends that the lower court acted properly and within its
jurisdiction in 1998 by setting aside a 1991 dissolution of marriage. This contention
somewhat paradoxically assumes that an individual who had been divorced for seven years,
with only property and alimony issues still pending before the court, would, upon the death
of his ex-spouse, maintain that the divorce had never been accomplished. The Appellee
would assert that the litany of lower court orders from 1991 through 1998 reveals an
intention to void the marriage dissolution by entering an order staying the property issue in
1992, in response to the Appellee's “Motion to Stay Enforcement of the Property Provisions
of the Final Decree,” or, at the very least, that no dissolution was ever accomplished due to
the partial stay of the final order entered in 1992.
We note initially that the relator does not dispute subject
matter jurisdiction and recognizes that the circuit court
originally granting a divorce is vested with continuing subject
matter jurisdiction under W.Va. Code § 48-2-15 to modify or
alter its original order as to alimony and child support, as the
altered circumstances of the parties and the needs of the children
may require. See, e. g., Syl. pt. 6, In re Estate of Hereford, 162
W.Va. 477, 250 S.E.2d 45 (1978) (child support subject to
continuing judicial modification); State ex rel. Trembly v.
Whiston, 159 W. Va. 298, 220 S.E.2d 690 (1975) (child custody
agreement merged in decree did not preclude change in
custody). Although the divorce portion of the decree
becomes final, we recognized in Acord v. Acord, 164 W.Va.
562, 264 S.E.2d 848 (1980), that the circuit court has continuing
jurisdiction to reopen the judgment and modify the decree as to
other matters pursuant to the provisions of W.Va. Code §
48-2-15.
166 W. Va. at 197, 273 S.E.2d at 372 (emphasis supplied).
[W]hen the parties challenge only the permanent orders relating
to marital property in their motions for a new trial, that portion
of the decree dissolving their marriage remains unaffected and
becomes final at the expiration of the time within which the
parties can move for a new trial on that issue. In this case, the
district court no longer had jurisdiction to set aside the
dissolution decree after the parties failed to file a timely motion
for a new trial on whether the marriage was irretrievably broken.
Id. at 481 (footnote omitted).
(See footnote 4)
In the present case, we conclude that the lower court acted within its authority
in 1992 by granting a partial stay of the 1991 final order, pursuant to the Appellee's request
for a stay on the property division issues. Through that action, however, the lower court
retained jurisdiction of only the property issues which had been stayed. The underlying
marital dissolution was not challenged; nor was a stay requested or granted on that issue.
The partial stay, relating to property matters, had no effect upon the actual dissolution of the
marriage between the parties. The marriage was dissolved by the 1991 order; only property issues remained unresolved. While the issues of property distribution had
been left open and alimony arrearages had been contentiously debated, the
validity of the actual dissolution of the marriage was never contested. It
was settled by the 1991 order; the 1992 order did not affect the dissolution
of the marriage; and the issue was not subject to resurrection by the lower
court in 1998. We find that the 1998 order was void
(See footnote 6) and
that the 1991 order declaring the dissolution of the marriage was in effect
at the time of Mrs. Clark's death in 2000.
In assessing the Appellee's claim that his daughter,
as administratrix of her mother's estate, does not have standing to bring
this action and litigate the issue of the validity of the 1998 order, we must
emphasize that, quite to the contrary, the Appellant is obligated to initiate
such action through her fiduciary duties as administratrix of Mrs. Clark's
estate. (See
footnote 7) In syllabus point one of Latimer v. Mechling,
171 W. Va. 729, 301 S.E.2d 819 (1983), this Court explained:
The personal representative of the estate of a deceased
acts in a fiduciary capacity. His duty is to manage the estate
under his control to the advantage of those interested in it and to
act on their behalf. In the discharge of this duty, the executor or
administrator of a deceased's estate is held to the highest degree
of good faith and is required to exercise the ordinary care and
reasonable diligence which prudent persons ordinarily exercise,
under like circumstances, in their own personal affairs.
Based upon the foregoing, we reverse the order of the lower court and remand
for determination of alimony arrearages to which the estate of Mrs. Clark is entitled.
Reversed and Remanded with Directions.
Where a court, by an order in the first instance, disposes
of multiple claims and adjudicates all controversies, but a party
by a Rule 59(e) R.C.P. motion asks the court to alter or amend
the order as to one of the claims, but not the other, the Rule
59(e) motion extends the time of finality of the order as it relates
to the claim contained in the 59(e) motion until the Rule 59(e)
motion is determined, but the order in the first instance is final
as to the other claims determined therein, and the time for
appeal as to that claim runs from the entry of the order in the
first instance.
An evaluation of the marital status of parties subsequent to the death of one of
the ex-spouses was addressed in Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
A divorce had been granted prior to the husband's death, but financial matters remained
unresolved in the dissolution proceedings at the time of the husband's death. The Colorado
court held that “the decree of dissolution dissolved the marriage of the parties even though
the decree was not final for purposes of appellate review.” Id. at 955. The court further
explained:
The marital status of the parties was dissolved; the parties were
no longer husband and wife. Thereafter, when the husband died
before the date of the permanent orders hearing, the dissolution
action did not abate, and the district court properly maintained
jurisdiction over the marital estate to conduct hearings to resolve
financial matters raised in the dissolution proceedings. The
probate court was correct in precluding the wife's claim in the
husband's estate as a surviving spouse.
Id.
The Appellee has also asserted that the Appellant lacks standing to litigate this
action. The Appellee suggests that the divorce action “ceased to exist or 'abated' upon the
decedent's death . . . .” We find that our holding in Bridgeman v. Bridgeman, 182 W. Va.
677, 391 S.E.2d 367 (1990), supports the Appellant's standing and permits this action by the
Appellant. In Bridgeman, executors of the estate of the late Dr. Robert Bridgeman appealed
from a judgment which granted a divorce between Dr. Bridgeman and his wife and awarded
lump-sum alimony to the wife. In syllabus point one of Bridgeman, this Court stated that
“[d]ivorce actions, and appeals therefrom, abate at the death of a party, except as to property
rights.” The Bridgeman Court expressly stated that “[a]n appeal does lie, however, as to
attendant property rights, if those rights survive a party's death and are enforceable in favor
of, or against, a party's estate.” Id. at 679, 391 S.E.2d at 369.
While it would have been preferable for the Appellant, as administratrix, to have initiated a
separate declaratory judgement action to reach issues controlling this case, her motion for
declaratory relief may be viewed by this Court as an attempted supplemental or amended
complaint in the underlying action. We decline to delay the resolution of these pivotal issues
on technical procedural grounds, particularly because all necessary parties appear to be
before the court. We therefore conclude that pursuit of these matters within the context of
the underlying divorce action is not destructive to the Appellant's claims.
Footnote: 1
At any time after the entry of an order pursuant to the provisions of this article, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice.