Jones v. Jones

400 S.E.2d 305, 184 W. Va. 297, 1990 W. Va. LEXIS 239
CourtWest Virginia Supreme Court
DecidedDecember 14, 1990
DocketNo. 19266
StatusPublished
Cited by2 cases

This text of 400 S.E.2d 305 (Jones v. Jones) 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
Jones v. Jones, 400 S.E.2d 305, 184 W. Va. 297, 1990 W. Va. LEXIS 239 (W. Va. 1990).

Opinion

MILLER, Justice:

In this appeal of a property settlement order, we are asked to rule on the applicability of the equitable distribution law. The circuit court found the equitable distribution law to be inapplicable here. We find this to be error and, therefore, reverse the order of the circuit court and remand for a determination of the distribution.

The parties to this action, Doyle and Jacqueline Jones, were married in February, 1954, in Roane County, where they continued to reside throughout their marriage. [299]*299During the marriage, Mr. Jones was employed by Pennzoil. Mrs. Jones was a full-time homemaker.1 Together Mr. and Mrs. Jones worked the small farm on which they lived.2

In November, 1982, Mr. Jones moved out of the marital home.3 He filed his original ctímplaint for divorce in January, 1983, on thfe grounds of cruel and inhuman treatment and irreconcilable differences. Mrs. Jones filed an answer in February, 1983, in which she denied cruel and inhuman treatment and sought support from Mr. Jones. That same month, an order for alimony pendente lite was entered, which continued in effect until the circuit court entered its order regarding property division. The matter was then referred to a special commissioner pursuant to W.Va.Code, 48-2-25 (1969).

No final action had been taken by March, 1985, when Mr. Jones filed an amended complaint. He again alleged cruel and inhuman treatment and irreconcilable differences, but added the additional ground of living apart for more than one year. He also sought protection of his property interests and asserted a second cause of action seeking partition of the marital real estate.

Mrs. Jones filed an answer and counterclaim on June 13,1985, in which she sought equitable distribution of the marital property. Subsequently, on June 24, 1985, Mrs. Jones was declared incompetent and a committee was appointed for her. On August 20,1985, the answer and counterclaim were refiled with the committee as a party.

On August 21, 1985, Mr. Jones was granted the divorce on the ground of separation exceeding one year. The proceedings were continued for all other purposes. The special commissioner held hearings and submitted a report in which he set forth recommended findings of fact and conclusions of law, one of which was that the marital property be subject to equitable distribution.

On September 12, 1988, the circuit court entered an order regarding division of the marital property. The judge held that equitable distribution was not applicable to this case and, as a result, Mr. Jones received most of the property. It is with this ruling that Mrs. Jones takes issue.

On May 25, 1983, this Court issued LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983), where we adopted the doctrine of equitable distribution in divorce cases based on homemaker services. We discussed the issue of retroactivity of equitable distribution and concluded that it should be applied prospectively, including cases presently pending where the claim was made.4

Subsequent to our decision in LaRue, the legislature amended our divorce statute, W.Va.Code, 48-2-1, et seq., to include broader and more detailed provisions for equitable distribution. In W.Va.Code, 48-2-36, the legislature provided an outline for retroactive application:

“Amendments made to the provisions of this article during the regular session of the legislature in the year one thousand nine hundred eighty-four shall be of retroactive effect to the extent that such amended provisions shall apply to the distribution of marital property, but not an award of alimony, in all actions filed under the provisions of this article after the twenty-fifth day of May, one thousand nine hundred eighty-three, or actions pending on that date in which a claim for equitable distribution of marital property had been pleaded: Provided, [300]*300That such amendments to the provisions of this article shall not, in any case, be applicable to actions filed under the provisions of this article in which, prior to the effective date [June 8, 1984] of the act of the legislature enacting such amendments, (1) there has been a final decree entered under the provisions of section fifteen [§ 48-2-15] of this article, or (2) the taking of evidence has been completed and the case has been submitted for decision.”

Mr. Jones maintains that equitable distribution should not be applied in this case because it was filed in January, 1983, before the LaRue opinion and the 1984 equitable distribution amendments to W.Va. Code, 48-2-1, et seq. He also relies on Coleman v. Coleman, 175 W.Va. 569, 336 S.E.2d 217 (1985), where there was an attempt to amend a divorce complaint to include a claim for equitable distribution. The original complaint was filed before the date of LaRue. We concluded that such amendment to claim equitable distribution could not be done in view of LaRue’s holding on retroactivity.

Coleman stands for the limited proposition that a divorce case filed before the date of LaRue cannot be subsequently amended to obtain equitable distribution benefits. In divorce cases we have traditionally made a distinction between an amendment to the divorce complaint which alters the grounds for relief and an amendment which changes the cause of action. In the former case, the amendment maintains the present suit and relates back to the date the suit was originally filed. Where, as here, the amendment changes the cause of action, it gives rise to a new suit which commences when the amendment is filed.

In Gray v. Gray, 120 W.Va. 498, 199 S.E. 361 (1938), suit was originally filed on the ground of adultery. Subsequently, the complaint was amended to assert a claim for habitual drunkenness. The claim was made that at the time of the original filing, the court lacked jurisdiction because the one-year residency requirement had not been met. When the amendment was filed, the residency requirement had been met. We affirmed the denial of a motion to dismiss and concluded in the Syllabus, in part, of Gray:

“A bill in chancery for a divorce under Code, 48-2-8, may be amended to amplify or clarify its allegations, but alterations or additions to its averments which lay a new ground for equitable relief constitute the commencement of a new suit....”5

See also Goldman v. Goldman, 146 W.Va. 855, 122 S.E.2d 843 (1961); Grottendick v. Webber, 132 W.Va. 539, 52 S.E.2d 700 (1949); Harbert v. Harbert, 130 W.Va. 704, 45 S.E.2d 15 (1947). Much the same result is reached under Rule 15 of the West Virginia Rules of Civil Procedure, which is applicable to divorce actions. As we stated in Syllabus Point 6 of Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977):

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Bluebook (online)
400 S.E.2d 305, 184 W. Va. 297, 1990 W. Va. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-wva-1990.