Gross v. Gross

469 S.E.2d 636, 196 W. Va. 193, 1996 W. Va. LEXIS 24, 1996 WL 128167
CourtWest Virginia Supreme Court
DecidedMarch 20, 1996
DocketNo. 22911
StatusPublished
Cited by2 cases

This text of 469 S.E.2d 636 (Gross v. Gross) 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
Gross v. Gross, 469 S.E.2d 636, 196 W. Va. 193, 1996 W. Va. LEXIS 24, 1996 WL 128167 (W. Va. 1996).

Opinion

PER CURIAM:

This is an appeal by Diana L. Gross from an order of the Circuit Court of Harrison County which directed the distribution of marital property in a divorce proceeding. In making the distribution, the circuit court essentially followed the recommendation of a family law master. On appeal, the appellant claims that the family law master did not make appropriate, independent findings of fact and conclusions of law and that he inappropriately submitted the findings and conclusions drafted by the appellee’s attorney as his own recommendation. The appellant also contends that the distribution of marital property was contrary to the evidence presented and violated the statutes governing equitable distribution. Lastly, the appellant argues that the circuit court erred in refusing to award her attorney fees. After reviewing the questions presented and the record filed, this Court disagrees with the appellant’s assertions. The judgment of the Circuit Court of Harrison County is, therefore, affirmed.

The appellant, Diana L. Gross, and the appellee, David R. Gross, were married on November 1,1980, and during their marriage they accumulated substantial property, including a martial home, various automobiles, retirement accounts, life insurance, and business assets assembled in two corporations called Village Square Development, Inc., and Buck’s, Inc.

In October, 1989, the appellant filed a divorce complaint against the appellee in which she requested a divorce, custody of the parties’ infant children, possession of the parties’ last marital home, equitable distribution, and [195]*195attorney fees. The proceedings in the case were bifurcated, and on March 29, 1993, an order was entered granting the parties a divorce on the ground of irreconcilable differences.

Thereafter, various proceedings on the distribution of the parties’ property were conducted before the family law master. At the conclusion of those proceedings, the family law master requested that the attorney for the appellant and the attorney for the appel-lee prepare proposed orders setting forth recommended findings of fact and conclusions of law.

The attorneys prepared the proposed orders requested by the family law master, and after examining the orders, the family law master concluded that the appellee’s recommended order contained appropriate findings of fact and conclusions of law and, without making any changes to it, submitted it to the circuit court with the recommendation that it be adopted.

The circuit court reviewed the family law master’s recommendation, a petition for review filed by the appellant challenging the family law master’s recommendation,1 the ap-pellee’s answer in opposition to the appellant’s petition for review, and the record in the case. On December 19, 1994, the circuit court entered the order from which the appellant now appeals. In that order, the circuit court stated:

[The] exceptions to the Family Law Master’s order can be categorized and analyzed in three (3) broad categories: (1) the adoption of one (1) party’s findings of fact and conclusions of law by the Family Law Master; (2) the issue of attorneys fees; and (3) the equitable distribution of the parties’ assets.
The court proceeded:
With respect to the issue of whether or not the Family Law Master may direct counsel to submit proposed findings of fact and conclusions of law and thereafter adopt in its entirety one side or the other’s proposed findings of fact and conclusions of law must be answered in the affirmative. It would appear within the sound discretion of the Family Law Master to adopt, in toto, the findings and conclusions of one (1) of the parties, but only if the facts presented in the evidentiary hearings and the law applicable thereto would justify the Family Law Master doing so.

On the question of whether the distribution of the parties’ assets was made in accordance with the law, the court stated:

With respect to the issue of equitable distribution, the Court has spent considerable time reviewing the various financial statements submitted by the plaintiff and the defendant in this matter in an effort to ascertain whether or not the Family Law Master’s recommendation was violative of W.Va.Code 48A — F-20 or the common law of the State of West Virginia. After reviewing all of the exceptions of the plaintiff with respect to the equitable distribution, it appears clear that the Family Law Master heard conflicting testimony, some general, some very specific, concerning the assets and liabilities of thé parties. The Family Law Master was then called upon to rule as to the extent of the parties’ assets and liabilities and then make an equitable distribution thereof. It is well settled that in a divorce suit, the findings of fact of a trial chancellor, based upon conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence. Finally, on the issue of attorneys fees, the

court said:

With respect to the issue of attorneys fees, a review of the record herein indicates that the parties were in fact divorced on the 29th day of March, 1993, and that the issues of equitable distribution of marital assets and liabilities and attorneys fees were reserved for further proceedings as a result of the bifurcation agreed to by the plaintiff and defendant_ It further appears from the record that the plaintiff [the appellant in the present proceeding] did not seek nor was she denied the ability [196]*196to introduce such evidence and as a result of the plaintiff not introducing evidence in connection with her request for the payment of attorney fees by the defendant, she has waived her right to do so since such a request was not made prior to the conclusion of the hearings before the Family Law Master.

The court proceeded to state that, after conducting the review referred to, the court could not say that the family law master’s conclusions were violative of statutory or common law standards. The court, therefore, ruled that the family law master’s order was just and proper in all respects, denied the appellant’s petition for review, and, in effect, adopted the order recommended by the family law master.

In the present proceeding, the appellant’s first assertion is that the family law master violated his duty to make findings of fact and conclusions of law, a duty established by W.Va.Code § 48A — 4-13, when he simply adopted the recommended order submitted by the appellee’s attorney and when he made no independent statements of his own conclusions.

The appellant is correct in stating that W.Va.Code § 48A-4-13 imposes a duty upon a family law master to make findings of fact and conclusions of law, and this Court has recognized that the duty to make such findings and conclusions is mandatory rather than directory. State ex rel. Coats v. Means, 188 W.Va. 233, 423 S.E.2d 636 (1992), and Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

The relevant portion of W.Va.Code § 48A-4-13 imposing the duty to make findings of fact and conclusion of law provides:

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Cite This Page — Counsel Stack

Bluebook (online)
469 S.E.2d 636, 196 W. Va. 193, 1996 W. Va. LEXIS 24, 1996 WL 128167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-gross-wva-1996.