Shawn P. Durbin v. Dana L. Durbin
16-1004
| W. Va. | Oct 23, 2017Background
- Shawn and Dana Durbin married in 1999 and divorced by final divorce order in June 2015; equitable distribution and attorney’s fees were reserved for later proceedings.
- Shawn sustained a severe workplace injury in September 2005; the parties jointly settled a deliberate-intent personal injury suit in December 2009 for $350,000, with $157,500 in attorney’s fees and $4,184.74 expenses deducted.
- $53,622.41 from the settlement was held in a client trust to satisfy a workers’ compensation subrogation lien (the "insurance escrow"); $134,692.85 was disbursed to the parties in 2009.
- Shawn later sought disbursements from the insurance escrow (about $18,787.68) without Dana’s authorization; the family court found the remaining escrow balance marital property and ordered equal division after lien release.
- The family court found Shawn’s long-term unemployment (post-injury through separation) diminished the marital estate and awarded Dana $6,500 in attorney’s fees (from her incurred $13,691.59), offset against equitable distribution; net equalization left Dana owing Shawn $4,089.66.
- The circuit court affirmed the family court’s equitable-distribution and fee rulings; Shawn appealed to the West Virginia Supreme Court, which issued a memorandum decision affirming the lower courts.
Issues
| Issue | Plaintiff's Argument (Shawn) | Defendant's Argument (Dana) | Held |
|---|---|---|---|
| Whether funds in the insurance escrow are marital property subject to division | Escrowed personal-injury funds were earmarked for nonmarital future damages or subrogation and thus not marital | Settlement did not allocate damages; escrow funds compensating economic loss are marital | Funds in escrow are marital property because Shawn failed to prove any portion was nonmarital compensation |
| Whether awarding Dana 50% of escrow was an abuse given she already received settlement distributions | Fifty-percent split is unfair because Dana already received substantial settlement proceeds | Dana is entitled to share in amounts compensating diminished marital estate (e.g., lost wages) | No abuse of discretion; Shawn did not propose an alternative allocation or quantify nonmarital shares |
| Whether awarding Dana attorney’s fees was appropriate and whether Arneault factors were considered | Fees should not have been awarded or were not properly analyzed under Arneault | Fees appropriate due to Shawn’s delay, failure to disclose finances, and the work required to litigate complex issues | Fee award of $6,500 upheld; family court considered relevant Arneault and Pitrolo factors and did not abuse discretion |
| Whether equitable-distribution calculations erred (classification, offsets, and consideration of Shawn’s separate contributions) | Misclassification of escrow, improper offsets for fees, and failure to credit Shawn’s separate contributions | Settlement undifferentiated; Shawn failed to carry burden to identify separate-property portions; unemployment diminished estate | Calculations upheld; Shawn failed to prove separate property portions or rebut diminution due to long-term unemployment |
Key Cases Cited
- Carr v. Hancock, 216 W. Va. 474 (standards of review for family- to circuit-court appeals)
- Whiting v. Whiting, 183 W. Va. 451 (presumption that property acquired during marriage is marital)
- Hardy v. Hardy, 186 W. Va. 496 (personal-injury awards: nonmarital for pain/suffering; economic losses distributable as marital; burden on proponent to prove nonmarital purpose)
- Arneault v. Arneault, 216 W. Va. 215 (factors to consider when awarding attorney’s fees in family cases)
- Landis v. Landis, 223 W. Va. 325 (delay and intransigence as relevant to fee awards)
- Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190 (factors for determining reasonableness of attorney’s fees)