*1 far, foregoing opinion, Based everybody we out of it.2 So behaved like a hereby gentleman affirm the decision of the Circuit and acted as a reasonable busi- County. person. Realcorp Court of Kanawha ness If hadn’t sued Ms. Gillespie, very condemnatory I would be Affirmed. say Gillespie greedy pig Ms. acted like a shame, However, Gillespie.3 shame on Ms. BROTHERTON, C.J., participate. did not and, Gillespie’s Ms. action was a counterclaim notwithstanding majority pro- treatise on MILLER, J., sitting by temporary Retired cedure, actually this case has been decided assignment. you get under the rule that “sometimes gets you.” bear and sometimes the bear But NEELY, J., dissents, and reserves for that reason the case shouldn’t be taken to right dissenting opinion. to file a precedential stand much and has no value NEELY, Justice, dissenting: regard with to sales commissions. Anyone experi- an ounce of with business
ence Realcorp, appel- understands that
lant, is correct this case. Here’s what
happened: Gillespie Ms. entered into a con- piece
tract to sell a If Ms.
Gillespie had been able to sell the cash, gotten percent she would have five of the cash. But she proper- couldn’t sell the ty PRATT, for cash because there Johanna isn’t much cash Puskar Plaintiff Below, Gillespie’s superior Appellee around. Ms. in the bro- firm, however, kerage managed cut to a deal everybody got a little bit of what he Raymond PRATT, III, H. Defendant wanted; specifically, or she Gillespie Ms. Below, Appellant. (and up thirty grand1 ended that was cash). having cut, The deal been Ms. Gilles- No. 22237. pie expected was to wait until the third deed Supreme Appeals Court of paid, everything gone trust was and if had Virginia. West according plan, Gillespie Ms. would have gotten business, thirty grand. another we Submitted Oct. often bet on the come. Decided Dec. things go according Well ... didn’t plan and the deal turned sour. The sellers hold-
ing agreed the second deed of trust to take a foreclosure,
deed lieu of only and it was
gentlemanly for the up broker to (to-wit, trust)
stone he held the third deed of no squeezed
because blood was about to be Thus, with this always thought issue. we find no merit to resorting proce- 3.I have contention. manipulation dural is the last recourse of the Appellant jury also contends that the award of judicial judge scoundrel since even the dimmest $30,000 was unconscionable and excessive since manipulate procedural can bulb rules to arrive at Appellant had received from the any play ridiculous procedural result. But to sale and it that was error for the trial court to game, appellant’s instructions and 5 are suffi- assign- refuse to reduce the award. We find this ciently they given. correct that should have been rulings ment to be without merit based on the set better, jury clearly But even verdict was forth in this evidence, contrary weight just for a hay Virginia! 1. And that ain't in West seriously moment to take articulations of stan- dards of review. dog 2. This is also sometimes known as "the manger rule.” *2 Kimberly S.
Robert W. Dinsmore McDavid, Bowles, Rice, Croyle, Graff & Love, Morgantown, appellant. Bowers, Andrew G. Fusco A. repay Debra Mrs. money Pratt’s father for the and. Newbraugh, Morgantown, Fusco & appel- used to the Cedarwood home. lee. Subsequently, provided Mrs. Pratt’s father *3 parties with a check in the amount of
PER CURIAM: they purchased with which their 5, marital home on March 1991. The check 11, appeal January This is an from the from Mrs. payable Pratt’s father was written 1994 order of the Mononga- Circuit Court of parties, deposited joint to both in their ac- County’s adoption lia of the recommended was, subsequently, count and the home titled order family and decision of the law master joint appraised their names. The value of which, alia, proceeding a divorce inter $350,000,against the home is which there is a ap- awarded the entire marital home to the $22,000 lien equity attached for a home loan pellee, Johanna Puskar Pratt. This Court purchase used to furniture for the home. petition appeal, has before it the for all mat- argument ters record and the briefs and In findings his of fact and conclusions of below, counsel. For the reasons stated law, family law master determined the case is remanded to the circuit court. subject real “unquestionably estate to be a asset,”
marital
but reasoned that since it was
“basically
gifts provided
derived
from
to the
parties, by
parents
of [Mrs.
...
to
Pratt]
The facts of this case are
in dispute.
divide the
equally
value of the home
between
herein,
parties
The
Johanna Puskar Pratt
parties
provide
would be to
[Mr. Pratt]
Pratt, III,
Raymond
and H.
were married in
an enormous
family
windfall.” The
law mas-
Monongalia County,
Virginia August
West
on
ter further concluded that
through
“[i]t was
parties separated
1989.1 The
May
on
the father of
...
[Mrs. Pratt]
that the mari-
following July,
and the
Mrs. Pratt filed
tal home was obtained. The Master uses his
grounds
divorce on the
of irreconcilable
discretion under [W.Va.Code] 48-2-32 to dis-
differences. The record
par-
reveals that the
tribute the
equally
other than
ties
during
accumulated sizeable assets
by awarding
does so
the entire value of the
marriage,2 including
home,
the marital
home to
[Mrs.
...
Pratt]
divid-
subject
is the
appeal.
ing all of the other set forth
proper-
marital
Prior to
marriage,
Mrs. Pratt’s
ty.”
money
purchase
father loaned her
to
a con-
appeal
On
to the Circuit Court of Monon-
dominium, retaining a deed of trust for the
galia County,4
family
law master’s recom-
repayment of
Upon
the loan.
summarily
mended order was
affirmed as
Mrs.
provided
Pratt’s father
a
discretion,
and neither an abuse of
payment
parties
down
a
arbitrary
capricious.
nor
It is from the cir-
home in the Cedarwood Subdivision of Mo-
cuit court’s order that
appeals.
Mr. Pratt now
nongalia County.
This
was
titled
joint
parties.
names of the
The
II
eventually sold both the Cedarwood home
purchased by
condominium
Mrs.
Mr. Pratt’s
assignment of error is
prior
Pratt
marriage.
pro-
home,
The sale
that the marital
which the
ceeds from the Cedarwood home were used master determined to
“unquestionably”
a
pay
off certain
asset,
matters and to
invest
marital
should have been divided
securities,
stocks and
proceeds
while the
equally among
parties, pursuant
to W.Va.
Code, 48-2-32(a)
from the sale of the condominium were used
W.Va.Code,
[1984]. child, Kyle,
1.
marriage,
One
was
born of the
3. Neither
money
asserts that this
was a
September
1990.
repaid
loan to be
to Mrs. Pratt’s father.
Indeed,
that,
law master commented
4. See
48A-4-16 [1993] and 48A-4-20
“[djuring marriage,
parties experienced
[1993].
very high
living
lifestyle,
standard
fueled
by gits
parents
from the
[Mrs.
Pratt][.]”
48-2-32(e)
[1984]
provides
distribution
tion of
equal
division
of the marital
marital
other than
equally,
cer-
authorizes
an
“only
first be consid-
if the cir-
tain
criteria must
of the distribution
alteration
agree
equal
with Mr. Pratt’s contention
ered. We
cuit court determines that
division
nor
inequitable
neither the
in view of
these
properly
court
considered
statu-
circuit
certain economic and noneconomic contribu-
tory criteria.
to or
of the marital estate
tions
devaluations
spouse.” Whiting,
at
by either
Whiting
syllabus point
1 of
provisions
396 S.E.2d at
Whiting, 188
W.Va.Code, 48-2-32(c)
were summarized
(1990),
general
our
this Court articulated
*4
Somerville,
syllabus point 1 of
v.
Somerville
procedure
equitable
determining
distribu
(1988):
459
369
S.E.2d
tion in divorce cases:
agreement, the
In the
of a valid
absence
W.Va.Code,
under
Equitable distribution
presume
case
trial court in a divorce
shall
48-2-1,
seq.,
three-step process.
et
is a
property
all
is to
divided
marital
step
classify
first
is to
the
The
parties,
equally
the
but
alter
between
nonmarital. The
property as marital or
fault,
distribution,
regard to
without
step is to
marital
second
value the
assets.
of certain statutori-
based
consideration
step is
the
The third
to divide
marital
(1)
factors,
ly
including:
mon-
enumerated
parties
between the
accordance
estate
etary
property
to marital
contributions
principles
the
contained W.Va.
income,
earn-
Code,
employment
such as
other
48-3-32.
prop-
ings,
separate
and funds which were
Wood,
syl. pt.
184
See also
Wood v.
W.Va.
(2) non-monetary
erty;
contributions
(1991);
Signo
syl. pt.
403
761
S.E.2d
property,
as
ser-
marital
such
homemaker
Signorelli 189
434
v.
S.E.2d
relli
W.Va.
services,
vices,
performed
labor
child care
(1993).
step
382
The
in the
first
compensation,
performed
without
labor
process, determining whether a
distribution
improvement
or
of
the actual maintenance
particular
property
sepa
unit of
marital or
is
per-
tangible
property, or labor
marital
law.
property,5
question
is
of
Whit
rate
management
or investment
formed
the
454-55,
at
at 416-
ing, 183 W.Va.
396 S.E.2d
(3)
property;
marital
of assets
omitted).
(citations
above,
17
indicated
As
effect
on the income-
the
subject
the
family law master found that
the
earning
as
abilities of
such
part
the marital estate.
real estate was
of
party
edu-
by
contributions
either
step,
valuation of
marital
The second
training
party,
or
cation or
of
other
completed by
property, was also
foregoing by
employment
of
either
property
The
was val
master.6
marital
(4)
education;
by
par-
or
conduct
either
or
$350,000.
at
ued
prop-
ty that
the value marital
lessened
step
pro
in this
third and final
The
(1986).
erty.
§
W.Va.Code
property
division of the marital
cess is the
48-2-32(d)(2)
W.Va.Code,
Additionally,
parties.
under
between
48-2-32(a)
adjustments to be
Code,
[1984],7
further
presump-
[1984]8
is a
outlines
there
5. "Marital
6. Under
mencement
the home.
measure
W.Va.Code,
48-2-l(e)
separation,
"[e]xcept
dispute
every judgment
of value
W.Va.Code,
as
ordinarily
[1992] and
property”
48-2-1
otherwise
48-2-32(a)
court
is
action.
(f) [1992],
the net
as of the
48-2-32(d)(l)
is
law master's
shall
provided in this
"separate property,” in
defined in
annulment,
value of the martial
divide
date of the com-
parties
provides that
valuation of
[1985],
W.Va.Code,
divorce
herein do
section,
marital
or
8.W.Va.Code,
ties.”
marital
subsection
between
in to which each
requires
(2)
(d)
an
Designate
After
action wherein
property, and define the interest there-
respective
the court
(c) considering the
48-2-32(d)(2)
parties
party is entitled and the value
interest therein.
to consider such factors
equally
section,
there is no
[1984] states:
factors
which constitutes
between the
relief demanded
the court shall:
set forth in
In the
agreement
par-
case
as
C.J.,
BROTHERTON,
unequal
participate.
considered where an
distribution of
did not
anticipated. Whiting,
Justice,
MILLER,
sitting by
Retired
183 W.Va. at
at 417.
S.E.2d
temporary assignment.
Though
law master alluded
generally to
48-2-32
a source
as
NEELY, J.,
dissenting
dissents and files a
authority
to divide the marital residence
equally,
other than
neither he nor the circuit
CLECKLEY, J., concurs and files a
specifically
court9
referred to the
concurring opinion.
W.Va.Code, 48-2-32(c)
criteria set forth in
awarding
[1984] as a basis for
the entire
NEELY, Justice, dissenting:
marital residence to Mrs. Pratt.
generous par-
Alert! Sound the alarm for
syllabus point
As we held in
3 of
Whiting Whiting
again!
ents!
strikes
Somerville, supra:
directing
“An order
any way
division of marital
other
pur-
In this case the marital home was
specific
than
must make
reference to
chased Mrs. Pratt’s father. His
48-2-32(c),
§
factors enumerated in
payable
parties, deposited
check was
to both
*5
support
in the
application
facts
record that
joint
in
a
account and used to
the
those factors.”
further
in
We
stated
Somer
jointly titled house.
Indeed Mrs. Pratt’s
discretionary
that “[s]uch
ville
a
determina
family gave
gifts
the
substantial
application
tion must result from a rational
throughout
marriage
paid
their brief
that
record,
the statute to facts on the
and this
parties’ high
living.
the
standard of
Howev-
reasoning
in
must be reflected
the order and
er,
majority
ignore
the
chooses to
the record
support
must
the
division directed.”
questions why
family
and
master and
law
389,
Id.
Remanded with directions.
and
spouse
a
one, two,
are described in subdivisions
three
takes into account the facts which underlie the
four,
(c)
section,
and
subsection
if a
factors described in said subdivisions three
consideration of
four,
factors
under said subdi-
equitably adjust
the definition of the
unequal
visions one and two would
in an
result
property, increasing
interest in marital
property,
division of marital
and if an exami-
party
the interest in marital
of a
ad-
nation of the factors described in said subdivi-
sions three and four
versely
by
affected
the factors considered un-
produce
finding
that a
der said subdivisions three and four who
(A)
expended
during
his or her efforts
would otherwise be awarded less than one half
marriage in a manner which limited or de-
of the marital
to an interest not to
party’s income-earning ability
creased such
or
property.
exceed one half of the marital
income-earning ability
increased the
of the oth-
(B)
party,
er
or
conducted himself or herself so
9. See
[1984] which re-
48-2-32©
dissipate
depreciate
as to
or
the value of the
out,
detail,
quires
judge
a circuit
to set
marital
may,
of the
then the court
making any
reasons for
division of
See
just alimony
in the absence of a fair and
Somerville,
Ill (c)(1) separate property. gift stitute Subsection presumption of a to the can rebut estate). that consid- states years, Whiting, Mrs. Pratt’s might, your children take 48— really you can hire tainly nobody listens to me. comics to efit osity of Mrs. Pratt’s ed when The Pratts’ Parents take note: Don’t 2—1(f) their note: intend for four horrible your [1992] draw the daughter’s good Nobody children contémplala, guys years majority separate family. Now because of gifts understands W.VaCode former who write because divorce. lasted family’s generosity spouses to be give continue to ben- husband. estate. picture. less than four joint gifts Legislature unless Batman Maybe gener- divid- Cer- you ital is what is meant tion made cluding, table taken added). spouse point I believe erroneous nor an abuse er contributed to the “[t]he extent property by maintenance, made but not If contributions, solely by such a “neither it is separate property.” benefits of his by back to monetary limited to: by or increase to which each finding his or her acquisition, preservation majority he “an enormous it seems [the spouse is neither contributions, or discretion. give opinion ... parent. her value of the contribu- just back (B) (Emphasis party has windfall,” law mas- separate as [f]unds is well clearly to one If this equi- mar- in- it is not clear what criteria was rate the circuit circuit court declaring CLECKLEY, Justice, concurring: concur property.” that the marital home was in the court, or By remanding decision it should to remand because not be used this case to master inferred “sepa- ing ter] nor the circuit court Pratt.” Code, 48-2-32(c) For the the entire marital residence statutory criteria set *6 majority’s reasons set forth as a specifically basis above, forth for award- in W.Va. I concur to Mrs. referred suggesting that the law that We wrong. or the court was
master circuit
Rather, we need the lower tribunals better
explain their decision so that we can scrutiny. proper appellate that decision S.E.2d 405 remand, explaining decision Virginia ex Edward of rel. J. STATE West master circuit court must Director, HAMRICK, III, Division permitted they that are not understand Resources, al., et Be Natural Plaintiffs therefore, is, the statute. It incum- rewrite low, Appellees statutory upon them to standards use bent and, appropriate, language. where INC., Virginia SERVICES, a West LCS case, terminology facts of this Under Virgi Corporation; Chambers West simply not “an enormous windfall” such as nia, Virginia Corporation; Inc., a West purposes appellate helpful for review. Development Company, and Chambers purpose Inc., Corporation, Defen a Delaware (1985), promote equitable resolutions of is to Below, Appellants. dants regarding issues assets. disputed No. 21958. that the enumerations listed believe not are illustrative in this section Appeals Supreme Court exhaustive, legisla- listing is indicative Virginia. of West may range of factors that intent tive Oct. 1994. Submitted family law master considered Decided Dec. making his determination.1 and rational there is a sound I believe holding that the marital home was
basis very well con- asset could a marital is no how to There distribute reads "after a consideration The statute that starting point is the statute itself. following” doubt decide