*1 Waldren, danger providing S.E.2d a hear- not such (1972). ing by petitioner is illustrated the case of Dennison, alleges who incom- that she was grantor The fact that the institute petent make of her to an effective waiver bring proceedings objections to his rights during A period question. the by a by injunction notice of the courts hearing on this issue those protect would justify to set suit aside the sale does consequences unable to understand the statutory defects in the scheme. from losing their actions their homes grantor such action the would be com- unscrupulous speculators their land to who and, pelled proof to at bear burden of advantage could take of the ill and infirm initially, the action. If a least costs of the inducing by agree them to to such terms. sale, hearing provided prior were to danger permit This exists when sum- grantor could as any objections raise affording mary foreclosures without defense, having to manner without bear grantor opportunity prior to be heard such burdens. The inconvenience to the Consequently, the sale. I would hold that requiring pre-sale hearing trustee where, pursuant to the deed of terms of a the other hand is In most cases minimal. trust, grantor per- waives his question simply would be whether the opportunity sonal notice and an heard to be grantor Consequent- had in fact defaulted. sale, prior grantor such enti- is at least provisions ly, Chapter article 1 hearing question tled to a on the wheth- process are violative of and of due provisions intelligent, er such constitute an policy public Virginia of the State of West voluntary knowing waiver his they provide grantor do not insofar rights. trust opportunity of a deed an to be heard prior to the foreclosure sale. course, the
Of foreclosures this case by
were controlled not terms of
statute,
express provisions
but
question
deeds of
trust. There is no
grantor
of a trust
fore-
deed
tary.
Boyd,
State v.
(1981).
Supreme
Appeals
Court
indulge every
Courts
Virginia.
West
presumption against
reasonable
waiver of
rights.
Mollohan,
fundamental
State v.
May
1983.
(1980).
In circumstances such as
property conveyed by a of trust deed
sold trustee default of the
grantor, pursuant to the of the trust terms
deed, personal oppor- without or an notice
tunity heard, to be very least that is
required is a hearing to determine whether opportunity
the waiver of notice and an knowing
be heard was voluntary. *4 Majorie & Martorella
Martorella Moser, Martorella, P. Huntington, Susan Wheeling, appellant. for Vieweg George B. Byrum Bailey, & III, Wheeling, appellee. Vieweg, for Avner, Levick, Anne E. I. Marsha Judith curiae— Simon, City, for amicus New York Le- Organization for Women The National and the Education Fund gal Defense and Family on Women National Center Law. owned,
MILLER, equally that of her Justice: earn- ings any property in were invested titled in action, appeal a final divorce In this Mr. LaRue’s name. The court found no recognize the doctrine of are asked grounds to establish constructive in trust property. of marital equitable distribution favor of Mrs. LaRue. essentially held The trial her claim was not entitled to Early parties wife in the had equitable distribution of the marital assets. owned a home located on East Cove Ave- trial court home, We conclude that the erred. Wheeling. nue in which had jointly, been titled in was both names sold were married $15,000 approximately and the their was a traditional one home, proceeds were reinvested another exclusively that Mr. handled sense LaRue Elm in Wheeling. located on Crest Drive family’s affairs and Mrs. La- financial January Prior to that home was mainly was a homemaker. Their Rue only. in the name of owned Mrs. LaRue At year marriage, gross income the last time, sign Mr. LaRue had Mrs. LaRue work, during which LaRue did not Mrs. transferring only. a deed to his name title $43,000. years thirty of mar- Out of signing The appellant did not recall employed riage, Mrs. LaRue was *5 deed, signed frequently stated that but she early years and her the of the papers request at her husband’s without years gross earnings seven totaled over knowing their The deed nature. was $51,000. presented that Mr. Evidence was signed at the about time when mar- encouraged spouse a LaRue his to be deteriorate, riage began to but was not homemaker, accordingly housewife and and recorded until after November children, two cared for house she raised parties separated. bringing Prior to her family, and the comfort of her and enter- petition for a division marital proper- tained husband’s business associates. ty, Mrs. LaRue sued to set aside the trans- parties granted A was to the home, fer of the but lost because trial March based on irreconcilable differ- that concluded she was unable to ences, following eight period a to ten show fraud or mistake in the transfer. problems. The trial years court found sides, inequitable conduct on both con- but I. that Mr. cluded LaRue’s abusive conduct concept equitable The distribution of outweighed” “far that of his wife. As the property has achieved an almost grown, parties’ two children were the di- acceptance universal in the divorce laws of LaRue only vorce order awarded Mrs. ali- originated the various states. It when mony and an for insur- allowance health applied powers their equitable courts to provide did not ance. divorce order rights spouse secure for one assets, any distribution of the marital property spouse or held by titled the other agree any were to unable on resulting based on the claim that a or con- except as items person- division to some impressed structive trust should on petitioned property. appellant al property. The claim basis for such a was court to her a inter- circuit award one-half spouse seeking that the interest in an personal property by est in all owned Mr. property had made substantial economic LaRue, an undivided one-half interest in all acquisition toward contribution him, by conveyance real estate owned to property. princi- Consequently, under the personal property all real her of enrichment, ples unjust it would be un- name of and under the control of Mr. La- fair permit pos- with title or Rue, Mrs. and a reservation for LaRue of a keep session to interest. entire This property interest in the real owned dower general rule is set out 27B C.J.S. Di- by petition Mr. LaRue. LaRue’s Mrs. vorce 293: denied, grounds § on the she had failed carry proving the burden of either that a “Where a wife made a material acquisition existed that marital to the contract assets were contribution husband’s coverture, during supplemented she ac- and enhanced various property legislative enactments.1 In the equity property in the so forms of quires special her, eight having community property states equity entitles on accumulated statutes, property acquired divorce, there- all after to an award satisfaction of; marriage jointly is deemed to necessary prerequisite is not a be owned and it upon par- its dissolution or annulment the wife show that she has contrib- generally equally acquiring to the ties are entitled to share uted funds or efforts her, in it.2 specific property awarded to though the division be had even but statute, majori- A common more which a funds or efforts wife has not contributed enacted, ty permits of states have the court acquisition specific property marriage of a upon the dissolution to make (Footnotes omitted) awarded to her.” of the marital involving eq- property based a detailed list of decisions these Judicial statutes, category principles recently factors.3 A third uitable have more been maintenance, support, survey provisions, trust for the 1. For a of the various states’ fund or Foster, Fifty general see D. Freed and H. Divorce in the education and welfare of minor 1, 1981, August parties. Any property States: An Overview as Family children of the shown Reporter acquired by party prior Law 4056-57 been either to have They thirty-nine plus states the District of gift, list during the course of the as a having Columbia as some form of bequest, devise or inheritance or to have been distribution statute. Additional articles and paid party either with funds so ac- relating equitable dis comments quired property shall remain the of such following jour tribution are contained in the subjected divi- not be Foster, Commentary Equitable Distribu nals: except upon finding under this section sion Greene, tion, (1981); N.Y.L.Sch.L.Rev. that refusal to divide such will create Comparison Property Aspects the Com *6 hardship party or on the chil- a on the other munity Property and Common-Law Marital dren of the and in that event the Compatibili Property Systems and Their Relative may party property of such in court divest the Marriage ty Rela with the Current View of equitable a fair and manner. The court shall Women, Creighton tionship Rights and the 13 property presume is to be divid- that all other Note, (1979); Equitable L.Rev. 71 Distribution equally parties, may between the but alter ed Property vs. Fixed Rules: Marital and Reform regard without to marital this distribution Act, Property Marital 23 B.C.L.Rev. the Uniform considering: misconduct after (1982). eq disapproving For a view of 761 “(1) length marriage. The of the distribution, O’Connor, Mulligan see & uitable “(2) property brought marriage to the The Inequity Equitable Distribution: An Edito The party. by each rial, (1980). Legis.J. Hall 21 5 Seton “(2r) parties has sub- Whether one of the by subject stantial assets not to division 462; Reppy W. § 2. 41 CJ.S. Husband and Wife court. Samuel, Community Property United C. in the & "(3) party each to the The contribution of appears that in some com- States 1-9 It marriage, giving appropriate economic value states, munity property the division need homemaking party's in to each contribution always equal factors be be but care services. and child Comment, E.g., Division Marital considered. "(4) age physical and and emotional The Property Divorce: What Does the Court Deem on parties. health of the Right", Hous.L.Rev. 503 as “Just and "(5) party contribution one to the The community property statute. to Texas’ education, training earning pow- or increased of the Wisconsin statute is 3. Section 767.255 er of the other. typical category: "(6) of this earning capacity party, rather of each in- The annulment, training, background, cluding em- every judgment educational "Upon di- skills, experience, length ployment rendering work legal separation, a vorce market, 767.02(l)(h), job custodial re- from the judgment absence in an action under s. and sponsibilities for children and the time property par- of the the court shall divide necessary acquire any expense sufficient edu- the title of and divest and transfer ties party training enable the to be- accordingly. copy cation or property A certified such living self-supporting at a standard of judgment portion affects come of the of the during enjoyed reasonably comparable to that shall be recorded in title to real estate marriage. county register of deeds of the office of the "(7) awarding family desirability are situated. The which the lands so affected for a reason- to live therein promote home or the may protect the best inter- and any having custody period party portion to the by setting able aside a ests of the children separate children. property in a general favoring that found.” more and can be Id. used in a few states is distribution of provides that an at 183. the court without property made further The court held: guidelines.4 Finally, specifying showing “The in the instant made case specific no jurisdictions few that have those exception persuades us third that a distribution, courts statute recognized the rule of title should be concepts their have continued evolve here, where, South Carolina: one a broad inter- equitable distribution with spouse foregone opportunities career principles. pretation equity of traditional wage-earn- primary at the behest of the Florida, We, along Mississippi, long ing spouse, throughout a mar- Carolina, category. are in this South riage has home to remained rear created judicially Carolina has South provide children and a suitable environ- equity doctrine. Based on earlier special family, ment for the the homemaker cases, Burgess doctrine is defined spouse upon eq- shall divorce an have 277 S.C. S.E.2d
Burgess,
property acquired
interest
uitable
in real
(1982), as:
wage-earner spouse during
special equity
“A
wife
entitled to
marriage.” Id. at 184.
acquired
in the husband’s
dur-
Thus,
together,
supra,
taken
Burgess,
made
ing coverture where the wife has
Parrott,
supra,
through
reflect
its
acquisition
to the
material contribution
doctrine,
special equity
South Carolina’s
Simmons,
property.
Simmons
Supreme
Court extends to a
(1980);
S.C.
S.E.2d
Wil-
right to recover economiccontributions and
Wilson,
216, 241
son v.
270 S.C.
S.E.2d
homemaking
also
contributions.5
(1978).”
had
Burgess involved wife who
worked
South Carolina Court’s evolution of
during
portion
equity
special
her
had
its
doctrine can be traced to
earnings
support
contributed
Florida6 where
held
the Florida Court
Parrott,
family.
give
Parrott v.
economic
a wife’s
contributions could
(S.C.1982),
a homemaker
special
wife
equity
rise to a
in her husband’s
enlarged
involved and the court
its
E.g., Heath
divorce.
*7
stating:
special equity by
definition of
Heath,
(1932);
103 Fla.
the wife has contributed to the accumula-
“Under Rule
an ac-
W.Va.R.C.P.
husband,
tion
of her
do-
impress
tion to
a constructive trust
ing
housewife,
part
as a
it would not
property acquired through joint funds or
*8
improper
joint
during
be
that she be allowed a rea-
efforts
coverture but titled
7. A more detailed discussion of Florida’s law is
"When a divorce shall be decreed from the
Guthrie, Family
in
Law: The
matrimony,
may,
found
of
the court
in its
bonds
Aftermath of
Canakaris,
(1981).
35 U.Miami L.Rev. 531
discretion, having regard to the circumstances
case,
parties
as
of the
and the nature of the
lump-sum
8. Both Reeves and Clark dealt with
just,
may
seem
and
make all orders
contributions,
awards for economic
with the
care, custody
touching the
and maintenance
stating:
court in Reeves
marriage, and also
of the children of the
Clark,
(Miss.
‘In Clark v.
in
name
one
the
proper
if
powers
in a di-
ties
such
were invoked
independent
an
count
joined as
pleadings:
of
complaint, and where all
the
vorce
equity
requirements
for a court of
to
48-2-15,
“In a suit for divorce under
exist,
a constructive trust
the
declare
Code,
has no jurisdiction
a circuit court
may impress
a trust
real
court
parties,
the
of
to deal with
estates
the
in
part
its
relief
property as
of
overall
necessary
in
save
it
be
to do so
as
proceeding.”
its
con-
order to make effectual
decree
Patterson
traced the historical antecedents
cerning
parties,
the maintenance of the
cases,
through our earlier
most
them,
of this rule
or either of
or the care and custo-
Philips
Philips,
v.
notably
education,
dy,
of minor
maintenance
(1928),
Sylla-
we
in
Thus,
we believe that Patterson’s
calculating
principles
amount of
distri
compatible
with the doctrine
distribution,
permits
arising
bution
economic contributions
spouse, who has
made material economic
take into
gifts
account the value of
Patterson,
supra
rigid tracing requirement.
168
grounds
impressing
property of
spouse seeking equitable con-
made to the
spouse.14
by the other
tribution
the husband with
trust.”
recognize
distinguish
Finally,
possible
language
we
that economic
It is
to
this
inter
property
are similar to
contributions
by pointing
that
it is
in terms of a
out
cast
case,
may,
appropriate
A
an
ests.
court
trust which is not coextensive
constructive
personal
to both real and
transfer
title
equitable
the doctrine of
distribution.
property
satisfy
to
an award for economic However,
compels
to conclude
candor
us
equitable
believe that
distribution. We
any attempt
distinguish
that
to
this lan-
purview of
such an interest
falls within the
guage
best
and not
would be at
semantical
W.Va.Code,
(1969),
autho
48-2-21
forthright
substantive.
A more
course
pos
“in the
property
rizes the
transfer
acknowledge
be to
that
this lan-
would
session,
control,
or
under
Patterson,
supra,
guage
too broad
was
name,
cases
of the other
... as in other
To the
it abso-
and absolute.
extent
spouse
chancery.”15
has retained
Where
lutely
homemaker
forbids consideration of
spouse’s
possession or control
the other
equitable
services
distribution
contribution,
equitable
it is
economic
divorce,
upon a
it is over-
marital assets
upon
it
back
the disso
be transferred
ruled.16
marriage.
lution
services, however, present a
Homemaker
complex problem
con-
more
than economic
III.
of mar-
tributions.
In the traditional view
equitable
involving
A
area
related
obligation
sup-
riage,
to
husband’s
was
distribution is that of homemaker
services.
his
and she
rendered
port
wife
turn
Although
point was not at
issue in
Patterson,
supra,
domestic or homemaker
services.17
ad
matter was
hus-
Syllabus
theory
upon
Point 3:
is based
part
dressed
wife,
legal obligation
support
to
his
band’s
such
“Traditional domestic services
as
thus
dissolution of a
and
mother,
wife,
housekeeper
as
those
fault,
she
not at
the wife
where
was
to a hus-
and incidental
contributions
State ex rel. Cecil
alimony.
In
give rise
entitled to
band’s business never alone
48-2-21,
457,
W.Va.Code,
14.
given
By permitting
“We read
to be
at
said:
some consideration
suggest
gifts,
being applicable
jointly
proper
we do not mean to
owned
to
any
value of
as
change
presump-
relating
ty.”
in our rule
and is
the limited
The note was
confined to
gift
wife. W.Va.
tion
between husband and
have
situation where a
authorized to
Code,
Davis,
(1931).
possession
See Davis v.
137
physical
property
home
an
Wood,
(1952); Woodv.
receiving custody
W.Va.
chil
incident to
of the minor
(1943); Boyd
W.Va.
S.E.2d
today’s opin
Nothing
dren.
in this statute or in
(1930).
Boyd,
In
109 W.Va.
169
896, 904,
Therefore,
Knapp,
alimony.
v.
W.Va.
S.E.2d
to an award of
we
(1958),
said:
we
wish to ensure that a trial court be em-
powered to
a life
award
estate to a de-
“Though
power
equity
of courts of
to
serving spouse, subject
remarriage.”
to
alimony
award
is derived from statute it
originate
in
did not
statute but stems
Several other considerations are rel
legal obligation
husband,
from the
of the
to an
evant
award based on homemaker
state,
marriage
incident
to
to main-
First,
services.
it is not limited to the
tain his
in
wife
a manner suited to his
giving
possessory
of a
interest in real es
position.... Alimony
means and social
tate. A court
lump-
determine that a
is a
of the wife which she
monetary
sum
amount should be awarded.
misconduct;
forfeit
she
when
Second,
concept
of homemaker services
is the offender she can not have an
is not to be measured
some mechanical
in
award
a decree of divorce
formula,
showing
but instead rests on a
husband,
favor of her
the absence
that the homemaker has contributed to the
of a statute which authorizes
such
well-being
family
economic
of the
unit
(Citations omitted)
award.”
through
performance
myriad
Nicholas,
See also In Re: Estate
child-rearing
household and
tasks which
(1959);
Snyder
W.Va.
S.E.2d 53
v.
up
make
the term “homemaker services.”
Lane,
(1951);
(1982);
based on
economic
Haynes Haynes,
v.
164 W.Va.
bution
either
contribu-
(1980).
holdings are
Such
must
spe-
tions or homemaker services
be
equitable
obviously applicable to an
distri-
cifically asserted in the divorce action.
In
Moreover,
for homemaker services.
bution
claim,
a
the court need
the absence
such
court from
do not foreclose the trial
proceed to
the issue. We
not
consider
have
equitable distribution for
giving some
traditionally required particular
a
assertion
services even where traditional
homemaker
action.
property
claims in a divorce
Pat-
exist,
an otherwise
grounds
fault
where
Patterson, supra;
terson v.
Murredu v.
equitable
case for
compelling
Murredu,
Wood,
supra;
supra.
v.Wood
shown.
homemaker services can be
for
inas
contribution
Just
the economic
Second,
equitable
claims for
distri
area,
of any
court
consider the value
be settled and foreclosed
bution
gifts given to the
dur
homemaker
property
agreements fairly
settlement
ne
ing marriage
spouse.
other
19by
gotiated
parties as in the case of
must also
of homemaker services
value
agreements.
other
settlement
the net
considered
relation to
assets
Hereford, 162
In re Estate
W.Va.
See
divorce
available at
time of the
477,
(1978).
250 S.E.2d
Courts
other
45
alimony
Finally, we
light of the
award.
do
recognize
right
eq
jurisdictions that
equitable distri
not consider an award for
uniformly
distribution have rather
uitable
services
based
homemaker
bution
adopted this
In re Marriage
rule. See
right
give rise to the
to have transfer made
627,
Olsher,
32,
Ill.App.3d
78
34 Ill.Dec.
In
legal title
estate.
to real
(1979);
Carlsen,
W.Va.Code, monetary Third, 48-2-21. When a equitable rights dis decreed, award for homemaker services existing not tribution do alter our law with judg has the same as a it characteristics regard support. and child Moreover, ment. since homemaker servic Finally, we applicability address the es have some correlation the doctrine distribution to alimony, the award is entitled to the lien pending Bradley Appala- cases. v. W.Va.Code, provisions 48-2-17.18 Company, Power 163 W.Va. chian (1979), IV. we discussed at 256 S.E.2d some retroactivity in length concept a civil procedural Several comments are First, Syllabus Point 5: distri- case20 concluded in order. claim W.Va.Code, (1943); 48-2-17, Hartigan Hartigan, provides: W.Va. 18. (1906). 52 S.E. support, "An order for maintenance ali- give mony shall not rise to a lien on real retroactivity issue of is a confused area 20.The person against order whom the estate of Frequently, the law. the issue is not raised of by until such is entered of record entered order not addressed. and therefore county in the office clerk Compare Coffindaffer, 161 Coffindaffer any such is situate. On and real estate S.E.2d Anchor Sitzes [April section after the effective date of this Inc., Freight, Motor S.E.2d 1969], any such order shall be recorded Moreover, (1982). every decision set- judgments manner as are record- same triggers question ting principle a new of law ed." retroactivity generally issue is limited as the departure agree- concept cases a clear that a settlement to those that make Huson, existing 97, Co. v. 404 U.S. must be fair law. Chevron Oil ment incident to long recognized Com- in our 92 S.Ct. 30 L.Ed.2d been law. Smith, to formulate either a suit- E.g., mentators unable Smith v. J71 determining “In whether to extend full distribution based on homemaker services retroactivity, following factors are to is a new rule. *13 First, be considered: the nature of the In Bradley, we dealt with the establish- substantive issue overruled must be de- comparative negligence ment of and over- termined. If the issue involves a tradi- ruled the concept common law of contrib- tionally law, settled area of such as con- utory negligence, gave full retroactivi- distinguished tracts or as from ty comparative to the doctrine of negli- torts, clearly and the new rule was not gence. recognized We that tort laws are foreshadowed, then retroactivity is less subject judicial legislative to continual Second,
justified.
where the overruled
changes. Furthermore, because of the
procedural
decision deals with
law rather
rather short
period
statute of limitation
substantive, retroactivity
than
ordinarily
actions,
filing tort
the beneficiaries of the
Third,
will
readily
be more
accorded.
new decision were a rather limited class.
decisions,
overruled,
common law
when
law, however,
Divorce
is a rather settled
overruling
result in the
decision be-
law,
area of
and there was no clear foresh-
ing given
effect,
retroactive
since the
adowing
right
that the
to homemaker ser-
usually
substantive issue
has a narrower
vices
gen-
could be recovered other than a
impact
likely
par-
and is
to involve fewer
eral broadening
equitable principles
Fourth, where,
hand,
ties.
on the other
Pierce,
divorce actions.
supra,
Pierce v.
public
involved,
substantial
issues are
Marshall, supra;
Marshall v.
McKinney
arising
statutory
from
or constitutional
319,
Kingdon,
162 W.Va.
jurisdictions.
wage
percent
equivalent
is 59
mean
courts,
single
Among
men and women
I further
the circuit
men.
believe
relatives,
decision,
living
pover-
are not
implement
shall
who
who
have
percent;
ty
for men is 18.1
the rate
opinion
an
that derives
rate
are better served
Virginia
explic-
percent.
women is 27.7
a man and
statute and an
Once
from West
married,
working
if
it,
theory implementing
it
then woman are
both
coherent
foreign
time,
average
opinion
wage
full
they are
derived from
woman’s
percent
family
authority.
unmapped ar-
34.7
In the inevitable
amounts
ended,
innovating
opinion
earnings.
will
When a
today’s
eas
bleaker;
percent
leave,
10.3
our courts should have
statute and
situation becomes
to;
poverty
single parents
male
fall
theory
to refer back
these twin
below
*16
(a
205,000);
percent
of
of
polestars
they
plot
can
a course that will
line
total
34.6
children,
single
of
In the
with
or a total
approximate our own.
event
women
concerning
any
history
governing
decree
the estate
of our law
the financial
make
order or
1. The
making
purpose
our
parties
resolution of a
shows
constant
the
of
...
for
increasing
failings of
discontent with the
alimo-
relating to the
effectual
order or decree ...
Although
always
ny
support.
we have
and child
custody
of
the
maintenance
the
or
possible authority
exercised the narrowest
un-
Id., syl. pt.
of
maintenance
their children.
Code, 48-2-21,
always
we have also
been
der
574,
Kinsey Kinsey, 143
In
v.
W.Va.
grounds
equitable exceptions
to
to our
alert
Murredu,
(1958)
v.
W.Va.
409
610,
and Murredu
among
view. Prominent
those
constricted
(1977)
approved
we
awards
*19 Upon LaRue was West Mrs. opportunities themselves ly forty dol- avail alimony of two hundred awarded month, presents. Un- per along lars with an allowance many fortunately, problems The there are hospitalization medical insurance. capacity of courts to beyond to four hun- which are alimony has since been raised wealth, per Mrs. Courts can distribute fifty month. solve. dred and dollars any. they dol- cannot create The economies also received two thousand LaRue has prevail joint lars, a households are withdrew from scale she herself which separation, irretrievably couple shortly after a lost when a married joint account automobile, adequate support a Mercury separates. share Pensions Bobcat together may not people living stocks valued two retired goods, household adequate support the two retired hundred dollars. approximately at fourteen living job people separately. Similarly, limited when prospects Mrs. LaRue’s a experi- an active head of household becomes age, her lack of recent work disabled, ence, support he debilitating condition still be able and a arthritic joint proceeds, household with insurance she suffers. longer no to meet his but be able home, family LaRue retained Mr. obligations. support or child automobile, Mercury Cougar the lion’s goods, bank ac- However, share of the household problem second there totalling approximate- address, counts with balances may successfully which courts dollars, corporate ly twenty-seven thousand which comes to mind because some of two thousand one stock with value peculiar surplus forms the marital dollars, partnership his share hundred “savings” likely to assume. firm. He also retained accounting in his average family longer no take American policies, the of nine life insurance control savings the form of cash on hand ap- beneficiary designations of which have Rather, local account bank. separation changed parently home, been since the “savings” family in the are invested LaRue as a to remove Mrs. plowed ongoing ven- back into business beneficiary. tures, buy insur- or used to institutional pension programs. These forms ance and LaRue was financial ruin of Mrs. “savings” family are often tied existing our law be- countenanced under wage-earner personally, or held in the a tra- cause the LaRue had been responsible for partner name of the who is LaRue, a in the sense that Mr. ditional one taking care of the financial affairs accountant, public exclusively han- certified *18 family. family’s dled the financial affairs. Conse- quently, family most assets were titled selling institutions The advent of societal name, and therefore under our his were protection in pension/insurance financial a property upon law his divorce. considered package transformed the nature has Code, [1969], reading A broader present capital from America’s wealth embracing concepts the marital sur- These future interest. modern institutions recognizing and home- plus economic and need traditional sav- serve same that contributions, ghastly closes this making wit, arrangements protec- ings served—to legal landscape. chasm in our vagaries of fortune over tion efficiently more because time—but do so II of individuals good and bad fortunes merely opens are for these institutions statistical holding today a wide This Court’s courts, vari- parameters. To the extent these opportunity circuit field of savings represent invest- by and ous forms of options previously were whose some are rather than assets—and large alimony support. and child ments limited they very my strict 1, supra). hope It is investments under (Again, note see terms — attempt- challenge courts, present a to courts all new circuit who are after that the fair among divorcing ing to effect responsible for administration primarily little effort reasonable needs of the wife and children financial reconciliation. With a imagination courts can see that divorc- and would be that the value of the use of the apple ing parties, who own an orchard for support house exceeds reasonable obli- instance, apples leave the courthouse with gation. support Because a husband must each of for life rather than a truckload children, wife, his often his and former it is applewood kindling. pay far better to order that he continue to mortgage family pro- on the house and aware, instance, We must be it for his vide children former wife’s importance family home in terms dependents waiting use than to leave these of its emotional and financial value. I both alimony support each month for and child am concerned that the dominant financial delivery checks whose is so uncertain. family inequi home cause value will ties, sale, and even forced as a result of our Similarly, surplus where the marital adoption My distribution. con ongoing invested in an been business that particularly I cern is aroused when contem destroyed by would be withdrawal of the children, plate minor who are innocent share, proportionate wife’s courts should parents’ inability of their to main victims open compromises that allow the wife marriage. tain the Our courts should bend ongoing interest business. The over backward to maintain minor children doctrine of distribution should parent family in the home with custodial neither license nor excuse the destruction appropriate. when This can be accom geese. golden-egg-laying support plished under traditional child rights plans Pension and insurance (Murredu Murredu, W.Va. challenging present particularly opportu- (1977)) (footnote nity In- for this kind of creative solution. one, Patterson, Patterson pensions prob- and insurance is vestment (1981)) doctrines. ably largest pie. slice of the investment impov- The sordid statistics about taxes, instance, security Today social cited should erished state women above (al- percent wages are almost fourteen instruct us that in domestic relations a bird half) though employer pays in the hand is worth several the bush. average percent means that fourteen of an Although majority opinion does ex- salary automatically wage-earner’s conclusion, press imply contrary I retirement, disability, and the “saved” for point explicitly and should like to make the in the event of protection of his survivors that, uncertain terms if either alimo- no security to social are his death. addition part of the final ny support or child is to be union, employ- myriad company, public order, trial courts should not force a sale of pensions. ee merely split pro- the marital house programs generally tied to the These unless the marital house substantial- ceeds family, and would there- wage-earner ly exceeds the reasonable needs the wife ripe asset for redistrib- fore seem to be an convincing indication and children. One equitable powers.7 a court’s substantially exceeds the ution under the house Private All Public WOMEN do not have or did not work at either did not would sions of deceased ty women following table illustrates this Women, is Employer Employer EMPLOYEE actually suggest, "receiving pension.” any pension rights, because work, PENSIONS even AND particularly older since women Receiving jobs OLDER, Percent worked husbands are counted as starker than these 18% [9] [9] with Pension FOR PEOPLE AGE 65 [1976] pension plans. The only receiving gap. Pension Benefit Median Annual intermittently, women, The $ 2,750 1,340 dispari- figures often they pen- MEN All Public Private cial (working paper), Pension Women, Working These EMPLOYEE PENSIONS light Employer Security Welfare Employer statistics are Policy of the fact U.S. Women, Marriage and the (1979). Department of AND Receiving (1980), citing OLDER, Percent President’s Changing that, unsurprising when viewed [25] 38% [13] Pension FOR PEOPLE [1976] Health, statistics 1981, half of the Roles and Commission Pension Benefit Median AGE 65 Retirement, of Education Annual from So- 2.060 4,830 Men and 178 may
However, destroy pension of or rights present one value pension oppressive consequences, problems equitable distri- have tax and of- complex most states, money ten is no a husband’s there available cases. most bution compensate money is con- in lieu of pension plan in a vested interest 8 plan. away pension limi- locked in the property but certain sidered marital tations exist. Virginia An examination West Supreme Employees may Public Pension Plan illus-
The
States
Court has
United
problems.
and rail-
trate the dimensions of those
military
decided
retirement
that
plan provides pension
This
on two
personal
road
are
entitlements
based
retirement
percent
average
high
divorce.
of an
three
for distribution
unavailable
210,
salary
years
every year
qualifying
453
101
McCarty McCarty,
v.
U.S.
service,
2728,
(1981) (military
percentage
589
reduced
avail-
S.Ct.
69 L.Ed.2d
surviving
W.Va.Code,
retirement);
spouse.
Hisquierdo Hisquierdo,
v.
439 able
U.S.
572,
99 S.Ct.
802,
59 L.Ed.2d
1
(1979)
[1971]
Code,
5-10-24
[1961],
part
plan
(railroad retirement). Additionally,
employees
a num- Public
must be
and,
State,
they
money
held
while
work for
ber of state courts have
W.Va.Code,
contingent
subject to divest-
cannot be
5-10-
is
withdrawn.
ment,
Employees
non-contributory,
[1980],
or the
17
can
their to-
plan is
receive
contributions,
interest,
they
if
pension
tal
without
present value
unascertaina-
ble,
subject
leave
service and their
can
pension rights are not
state
estate
if they
receive their
die be-
division.9
contributions
receiving
fore
back all actual contributions.
Furthermore,
rights
even where
are vest-
W.Va.Code,
However, the
5-10-30 [1974].
ed
cash contributions have been
because
pension
if collected
the time
value
at
paid
actuarily
plan,
sound
it
into an
in any
of retirement
individual case will
impossible to
be
withdraw the
nonetheless
often far exceed the fair market value
money
to make an
distribution
private,
employee’s
in a
contributions
plan.
the terms of the
More
because of
sound, pension
actuarially
plan.
not, pension
frequently than
contributions
during
Consequently, courts
wish to avoid
mandatory
period
for the
are
pension rights
person
employed
particular
in a
firm an immediate division of
only
making
can
on termination when
distribution
be withdrawn
destroy
do
merely
if to
so would
employment
retirement. Even where
withdrawn,
en-
money
greater
a far
future
can be
such withdrawal
both
43,000,000
Bodford,
Ill.App.3d
paid
Marriage
Ill.Dec.
women in the
labor force were
94
49
Secretary,
occupations:
employed
(1981) (Illinois);
20
N.E.2d 487
Wilson v.
418
worker, cashier,
bookkeeper,
Wilson,
(1980)
salesclerk retail
Ind.App.,
with the marital to which his or her Ill marriage contribution to the renders that spouse entitled. Once that entitlement has majority permit has elected to mari- established, however, been the statute be- recovery tal fault to affect a wife’s for her comes directive. Because the statute man- homemaking I contribution of services. be- restoration, spouse’s right dates to recov- legally lieve this to be incorrect both qualified er his or her share should not be practically. by break-up considerations of fault in the what, power I trace our to initiate all wealth, relative needs of candor, must admit to a distinct be children, other matter.12 These departure previous holdings, from all our are matters to considered in the context authority reserved to us alimony support only, or child awards as W.Va.Code, language broad 48-2-21 W.Va.Code, [1969], provided 48-2-16 provi- It is a construction of this [1969]. Apart defining “property” sion to mean marital from the fact that the fault rule (as property opposed property, does not follow from the statute that au- to inherited 10. Our 11. For dent’s on courts to transfer title to settlement ed that tance. These demanded it. for distribution in this State we language Hereford, a decedent’s estate is outlined in In re Estate either say marriage by gift estate where the terms of the (to instance, they position summarize permitted Code, types not, regarding alimony our could be a before the holding but of a third such a very briefly) property are unavailable because of the any property acquired [1969] charge, does not charge merely that mandates we conclud- on a dece- or inheri- empower because express charge (1978) equity after 12.The has been But see the other utes. S.W.2d 696 P.2d contemplation Illinois. (1980); restoration of should have no the name of one rule that considerations Smith v. In re expressed Ill.Dec. Boyd spouse, (1980); Marriage property. impact Smith, Kan.App.2d to be distributed is within the Code, it must spouse may decided under different Boyd, Murff 416 N.E.2d 48-2-21 Before Me., property distribution courts of Maine and appear Cihak, Murff, be distributed to of marital fault property [1969]. to the court A.2d 1356 Ill.App.3d Tex., titled stat- *21 180 custody payments, and remain holding, should practical difficul- child
thorizes our are so. applying of a fault rule manifold. ties ques- to question of fault To add the sur- Although the of the marital division homemaking of of services quality tions mechanical, plus fairly the determination is homemaking services that quantity of When spouse’ contribution is not. upon to already be called decide a court will surgeon is husband a successful brain will, fear, hopelessly muddy I these waters marriage may contribution to the wife’s impossible. meaningful review and render to less than half of his income. amount important, as I discuss at some More shall Conversely, is an it when he indolent slob section, following in it will length blur substantially than more may amount the distinction between resto- and confuse case, however, In this half. latter alimony time when this ration and at a question likely of ratio of distribution is urgently needs distinction most clarifica- mooted lack of assets. While be mind, “monetary my To award
tion.
likely
up very
will
end
near
most divisions
on fault and
homemaker services” based
equal,
there
certain factors which
rights is
giving
property
no
indistin-
rise to
jurisdictions consider13 and which we
alimony.
guishable from
consider,
should commend to our courts to
ascertaining
pro-
in
The
proper
2
Pat-
division.
syllabus point
In
of Patterson v.
portionate
spouse
terson,
share of a
should reflect:
we concluded on
basis
supra,
our
reading of
Code,
[1969]
that:
(1)
length
marriage;
authority
of a circuit court
Since the
(2)
occupation
parties,
whether
entirely statutory,
divorce matters
and,
long;
each worked and
how
in a
power
not have
divorce
does
worked,
re-
both
property
to real
action to transfer title
part-
spective contributions of each
either
lieu
spouse
to another
one
ner;
alimony
child
supplement
of or
or
as
income;
(3) the amount and sources of all
support;
...
(4)
of each
the contribution
today
holding
should not disturb
Our
apprecia-
acquisition, preservation,
recoupment and alimo-
distinction between
tion,
dissipation
proper-
of marital
ny that
maintained in Patterson. Un-
including
ty,
services
a homemak-
statute,
power
courts do not have
der
er;
prop-
in a
action to transfer title to
(5)
prop-
rights
the loss of inheritance
spouse
erty from one
to another either
acquired during
erty
the course
alimony
supplement
or child
lieu
or to
pension
loss
custody
majority opinion sug-
awards.
rights; and
pow-
gests
nonetheless do have
that courts
(6)
consequences,
any,
if
the income tax
er to refuse to transfer title
division.
re-
from one
to another
lieu of
first
Obviously, since this is
case of
fusing alimony.
disagree. Equitable
I
dis-
anticipate
impression,
possible
it is
acquired
tribution of the assets
ulti-
all
that we will
enterprise conceptual-
of the considerations
surplus
None-
mately
analyze.
called
ly
from the
distinct
award
Steenhoek,
Marriage
(Ind.App.1979);
13. following
In re
cases
discussions of
include
Smith,
Iowa,
(1981);
5
arriving
"equitable”
N.W.2d
Smith v.
at an
305
448
factors considered
117,
(1980);
Kan.App.2d
property:
Clearly,
presumption
that economic and
property
now
home-
transfer of
making
persons
gift.
contributions are to be considered between married
is a
That
property,
presumption, obviously,
the distribution of marital
confounds all hu-
enrichment,”
“unjust
Haynes,
experience;
likelihood of
man
it is far more reasonable
supra,
presume
titling
prop-
then, experience of mar- instructs us that mar- upon that the termination a Human during the justified couples will not behave riage the that tit- ried circumstances if imminent. spouse one as divorce were ownership ular in the name of coopera- posture a enervate the exist, expectations Such would implicit cease to and the spirit that central to successful tive is all made en- upon which the transfer was by marriages. presume We that should tirely confounded. Patterson, a constructive trust pressing titled by ty business efforts: case that cussed and must be treated as such. We joint benefit of that out ularly the obvious fact that most married avoid difficult third fer is retain spouses usually do intend to sons persons well. The spouses ed sons can has most It both _ is persons. its in do not argued benefit the challenged transfers after the death of one Mrs. the husband’s name but husband Transfers between related entire course of a involved, [are] supra, problem presumed presumption transfers of presumption concerning contemplate LaRue forceful challenged by usually intended for the Mr. and both. While we must but in the context of im- of on their to a effect when a trans- LaRue wife property by third himself were cannot be blind to money third gift through spouse in claims party, in confer property through- acquired between order gifts in proper- by partic- (since relat- joint gifts very per- per- gift dis- assets. who that if the court finds that assets earned one family property thorizes courts of erty titled terest circumstances Furthermore, holdings, quire 48-2-21 ty the trusts spouse (usually their band was intended adopted by the LaRues a wife entering into an Therefore, Notwithstanding our in assets should be other fiduciary spouse fiduciary. Consequently, elaborations, originally joint no divorce, her [1969] torturing management property in this presumed Code, in the financial husband have been converted into with the must his trust the statute earned surrounding to conclude that where one the name of arrangement I concur in equity titled not to be her husband) return security restored to the to name above acquire ends. language [1969] contributed previous fiduciary capaci- his his name inquire —that clearly implies family surplus of one qualifications has acted it should re- such as spouse’s plainly donee, equity titling of implicitly majority her hus- into the spouse, spouse. narrow spouse when, Code, those prop- that but au- in- decision. death), presumption event of their gift probably best in a suit rebutted Justice, HARSHBARGER, concurring: spouses by showing of between a clear logical I find cannot reason to allow unjust people enrichment. Most do not a spouse’s fault to affect intend unjustly enrich other man. distribution when the is a com- 11-12, S.E.2d, at at pensation services, for homemaker and not respond I believe that we should to Mr. to allow fault to be considered when argument by raising LaRue’s the dictum amount of distribution is based specific holding of Patterson to that the upon economic contributions. gift eliminated, presumption of or at quite majority opinion properly qualified, applies as it least at time of intact our current law alimo- leaves about gifts divorce to intra-marital ny, or amount the allowance of which does non-personal course, nature. Of depend part upon degrees fault or way should in no weaken the continued inequitable conduct. vitality presumption gift when the however, inter-spousal challenged me, spouse transactions are seems to It disgruntled children, relatives, greedy exemplary provider have been an or creditors. homemaker services thus entitled assets, equitable distribution of the marital guilty same time have been at the recognized justify
acts his or her no more getting divorce. There is penalize reducing spouse by
reason to
his or her share of the distribu- *24 homemaking,
tion for than there would him
reason reduce a share allotted to
her because of economic contributions.
I hold would
applies both economic contributions fault; regardless
homemaker services blame,
and that in instances where there is (or thereof) reduction or denial punishment
would reflect for the fault.
Patricia Joan GIBSON
Branty Darrell GIBSON.
No. 15768.
Supreme Appeals Court of Virginia.
West
June