Preview:

Martin v. Martin
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1991 Term ____________ No. 20004 ____________ LARRY H. MARTIN, Appellant v. MARY ANN MARTIN, Appellee ___________________________________________________________ Appeal from the Circuit Court of Harrison County Honorable Frank J. Maxwell, Jr., Judge Civil Action No. 84-C-384-2-A AFFIRMED ___________________________________________________________ Submitted: September 24, 1991 Filed: November 1, 1991 Peter J. Conley, Esq. Clarksburg, West Virginia Attorney for the Appellant Delby B. Pool, Esq. Clarksburg, Wet Virginia Attorney for the Appellee This Opinion was delivered PER CURIAM. Workman, J. concurs and reserves the right to file a concurring opinion. SYLLABUS BY THE COURT 1. "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." Syllabus Point 2, Segal v. Beard, ___ W. Va. ___, 380 S.E.2d 444 (1989). 2. "'Extrinsic evidence may be used to aid in the construction of a contract if the matter in controversy is not clearly expressed in the contract, and in such case the intention of the parties is always important and the court may consider parol evidence in connection therewith with regard to conditions and objects relative to the matter involved . . . .' Syl. Pt. 2, Berkeley Co. Pub. Ser. Dist. v. Vitro Corp., 152 W. Va. [252], [162 S.E.2d 189 (1968)]. Syllabus Point 2, International Nickel Co. v. Commonwealth Gas Corp., 152 W. Va. 296, 163 S.E.2d 677 (1968)." Syllabus Point 2, Bittorf v. Bittorf, ___ W. Va. ___, 390 S.E.2d 793 (1989). 3. "A child support order may be modified only upon a substantial change of circumstances which was uncontemplated by either of the parties at the time the order was entered and upon a showing that the benefit of the child requires such modification. W. Va. Code, 48-2-15(e) [1986]." Syllabus Point 1, Lambert v. Miller, ___ W. Va. ___, 358 S.E.2d 785 (1987). 4. "'Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.' Syllabus, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). Syllabus, Luff v. Luff, ___ W. Va. ___, 329 S.E.2d 100 (1985)." Syllabus Point 8, Wyant v. Wyant, ___ W. Va. ___, 400 S.E.2d 869 (1990). Per Curiam: Larry H. Martin appeals the decision of the Circuit Court of Harrison County, which refused to order the sale of the former marital house and required him to pay additional alimony of $150 per month to his former wife,
file:///C|/Users/Peter/Desktop/Opinions/20004.html[7/1/2013 8:21:11 PM]

Mary Ann Martin. On appeal, Mr. Martin alleges that the sale of the house is required under the terms of the parties' divorce order and that the payment of additional alimony is not justified. Because our review of the record shows that the decision of the circuit court is equitable, we affirm the decision. Mr. and Mrs. Martin's original divorce of February 26, 1985 provided Mrs. Martin with exclusive use of the former marital home until December 1, 1989, provided that she did not remarry, and awarded her permanent alimony of $275 per month. After December 1, 1989, when Mrs. Martin refused to allow the sale of the former marital home, Mr. Martin instituted suit to sell the former marital home with an equal division of the proceeds. Mrs. Martin maintains that she has a right to possess the former marital home and she also counterclaimed for an increase in alimony. In 1985, after a 22 year marriage, the parties were divorced and Mr. Martin was awarded custody of the sixteen year old son, the parties' only minor child.933449551 Mrs. Martin, primarily a homemaker for most of the parties' marriage, became a substitute cook. Mr. Martin, an independent contractor, earned about $15,000 in 1984. After the divorce, Mr. Martin, who has remarried and is living with his second wife and his step-child, more than tripled his income and has accumulated substantial savings. Mrs. Martin earns $588 per month as a full-time cook for the Harrison County Board of Education. For the past three years, the parties' daughter and her infant child have lived with Mrs. Martin in the former marital home. Mrs. Martin currently receives food stamps and her daughter pays the water and sewage bill. The circuit court decided that the provision for the sale of the marital home, which was included in the property settlement of the parties and was "approved and confirmed" by the parties' divorce order, did not clearly require the sale of the former marital home after December 1, 1989. The circuit court declined to adopt Mr. Martin's contract interpretation because to do so would make the contract one of adhesion. The circuit court also awarded Mrs. Martin an increase in alimony of $150 per month for a total payment of $425 per month. Mr. Martin appealed to this Court seeking the sale of the former marital home and seeking to rescind the increase in alimony because any changes in the parties' circumstances was contemplated at the time of divorce. I. The former marital home was built by the parties and has an estimated value of $72,000. The parties' "Property Settlement and Agreement," which was approved and confirmed by the divorce order, contained the following provision concerning the former marital home: (4) The parties jointly own a residence located at Rout 1, Box 65, Lost Creek, Grant District, Harrison County, West Virginia. Wife shall be granted the exclusive right to reside in the last marital home for five (5) years, that is until December 1, 1989, or unless she sooner remarries or decides otherwise to sell the same. During the time that Wife resides in said home, she shall be liable for the homeowners insurance, maintenance, real estate taxes and all upkeep on the same. If Wife should remarry or decide not to reside in said home, said home shall be offered for sale with right of first refusal be given to either party to purchase the other's interest at its fair market price. If neither party is purchasing the entire interest of said home, said property shall be sold and the net proceeds of sale be divided evenly between the parties. The Property Settlement and Agreement, signed by the parties, was drafted by Mr. Martin's former attorney. During the original divorce proceeding, Mrs. Martin was represented by an attorney. Mr. Martin contends that the disposition of the former marital property was part of the property settlement rather than a form of alimony and is not subject to modification.1970870158 Recently in Segal v. Beard, ___ W. Va. ___, 380 S.E.2d 444 (1989), we examined the jurisdictional power of a trial court to modify an order settling the property rights of the parties to a divorce: In a divorce action, except when the rule is altered by statute, a judgment providing for, or approving the parties' agreement as to, the property rights of the respective parties-unlike a judgment governing alimony--may not be modified or vacated after it becomes final, in the absence of fraud, coercion, mistake or other grounds on which judgments in general may be modified or vacated. 27C C.J.S. Divorce

Download 20004.pdf

West Virginia Law