Feit v. Feit

394 S.E.2d 901, 183 W. Va. 206, 1990 W. Va. LEXIS 97
CourtWest Virginia Supreme Court
DecidedJune 26, 1990
DocketNo. 19264
StatusPublished
Cited by1 cases

This text of 394 S.E.2d 901 (Feit v. Feit) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feit v. Feit, 394 S.E.2d 901, 183 W. Va. 206, 1990 W. Va. LEXIS 97 (W. Va. 1990).

Opinion

PER CURIAM:

This is an appeal by Janie Marie Feit from an order of the Circuit Court of Harrison County which modified a divorce decree and which cancelled a right of the appellant to purchase her former husband’s interest in a parcel of marital property. The circuit court also directed the appellant to cooperate in the sale of the property to a third party. On appeal, the appellant claims that the circuit court exceeded its legitimate powers by modifying the divorce decree and by directing her to sell her interest in the property. After reviewing the record, this Court agrees and reverses the decision of the circuit court.

By order dated December 22, 1987, the appellant and her husband, Alvin Feit, were divorced. The divorce decree established the interests of the parties in various parcels of marital property, including a 9.93 acre tract located on Twin Oaks Drive in Bridgeport, West Virginia. The court found that the Twin Oaks property was worth $124,000 and declared that the appellant had a 25% interest in it and that her husband a 75% interest. The court further provided that:

... said property should be forthwith listed with a licensed realtor/s and sold for $124,000 or such other amount as mutually agreed upon by the parties, and the net sale proceeds distributed as follows: 75% thereof to plaintiff Alvin Feit and 25% thereof to defendant Janie Marie Feit, or prior to said sale to a third party, either party may purchase the other one’s interest in and to said property based upon the value and percentage of ownership set forth herein or at such other price mutually agreed upon by them to purchase the other party’s interest therein. Defendant shall have the first option and opportunity to purchase plaintiff’s interest therein. Said optional rights of either party to purchase the other one’s interest in said property shall not delay the forthwith listing of said property with said realtor/s and attempts to sell said property to a third party.

Less than a month after entry of the divorce decree, the appellant, by letter of her counsel directed to her former husband’s counsel, informed her former husband of her desire to purchase his interest in the Twin Oaks property.

On February 3, 1988, the attorney for the appellant’s former husband informed appellant’s counsel that Mr. Feit would not sell his interest in the property for $93,000, the amount for which the appellant was entitled to purchase her former husband’s interest under the divorce decree, unless the appellant waived her right to alimony. He further indicated that Mr. Feit had received an offer from a third party to purchase the property for $140,000; that 75% of $140,000 was $105,000; and that Mr. Feit would accept $105,000 from the appellant.

On February 8, 1988, the appellant rejected her former husband’s counter offer.

Over the following six months there was no further correspondence regarding the property. Then, by letter dated August 12, 1988, and by another letter dated September 27, 1988, the appellant, by counsel, again informed her former husband that she desired to exercise her right to pur[208]*208chase the property. Her former husband replied on September 28, 1988, that he was opposed to the buy-out and that he intended to sell the property to a third party. He further asserted that the appellant’s option to purchase had long expired and that the court’s $124,000 appraisement figure was inadequate.

Following this exchange, the appellant’s former husband petitioned the circuit court for an order to compel the appellant to cooperate in effecting a sale of the property to a third party. The appellant opposed the petition and on November 22, 1988, with the assistance of her son, Daren Feit, who agreed to co-sign her note, obtained financing from the Union National Bank to effectuate the buy-out.

A hearing was conducted on the appellant’s husband’s motion on November 23, 1988. At the conclusion of the hearing, the circuit court concluded that the appellant had taken no affirmative action to effectuate the purchase under her buy-out rights until just before the November 23, 1988 hearing. The court also reasoned that since the appellant’s son had agreed to co-sign for the loan to be used by the appellant to purchase the property, the appellant’s proposal to purchase actually involved a third party.

As a consequence of his conclusions, the circuit court judge, on January 19, 1989, entered an order which modified the prior decree of divorce and, in effect, deprived the appellant of her first option to purchase the property. The court also directed that the property be sold to a third party and that the net sale proceeds be distributed 25% to the appellant and 75% to her former husband.

In the present appeal, the appellant claims that the circuit court exceeded its legitimate jurisdiction granted by W.Va. Code, 48-2-15, when it modified the decree of divorce and ordered her to sell her 25% interest in the property.

In a number of cases this Court has indicated that a trial court’s jurisdiction in divorce cases is purely statutory and that a trial court possesses no powers in cases involving matters of property beyond those specifically conferred by statute. See, e.g., McKinney v. Kingdon, 162 W.Va. 319, 251 S.E.2d 216 (1978); State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958).

Recently in Segal v. Beard, 181 W.Va. 92, 380 S.E.2d 444 (1989), the Court 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 § 594 (1986) (collecting cases from the approximately thirty jurisdictions deciding the issue). See also 2 H. Clark, The Law of Domestic Relations in the United States §§ 19.13, at 465-66, 16.1, at 179, and 17.6, at 275 (2d ed. 1987); 4 Family Law and Practice §§ 52.01[3][a], 52.04[1] (A. Rutkin gen. ed. 1987); 24 Am.Jur.2d Divorce and Separation §§ 958, 846 (1983). Stated more concisely, “[i]n the absence of statutory authorization to modify a judgment dividing marital property, the courts [acting as domestic relations courts] are without jurisdiction to do so.” Wardwell v. Wardwell, 458 A.2d 750, 752 (Me.1983).

Segal v. Beard, Id. 181 W.Va. at 97-98, 380 S.E.2d at 449-50.

The statute granting a circuit court jurisdiction to affect marital property in a divorce proceeding, W.Va.Code, 48-2-15(e), places limitations on the authority of a court to modify a divorce decree allocating property after the decree has been entered. It, in relevant part, provides:

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419 S.E.2d 440 (West Virginia Supreme Court, 1991)

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Bluebook (online)
394 S.E.2d 901, 183 W. Va. 206, 1990 W. Va. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feit-v-feit-wva-1990.