Kaminsky v. Kaminsky

383 S.E.2d 548, 181 W. Va. 583, 1989 W. Va. LEXIS 162
CourtWest Virginia Supreme Court
DecidedJuly 21, 1989
DocketNo. 18872
StatusPublished
Cited by1 cases

This text of 383 S.E.2d 548 (Kaminsky v. Kaminsky) 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
Kaminsky v. Kaminsky, 383 S.E.2d 548, 181 W. Va. 583, 1989 W. Va. LEXIS 162 (W. Va. 1989).

Opinion

PER CURIAM:

This case is before the Court upon the appeal of Meryle J. Kaminsky (hereinafter “wife”) from an order entered November 23, 1988 in the Circuit Court of Marion County which denied the appellant’s motion to set aside a prior order wherein the circuit court adopted the recommendations of the family law master1 in [584]*584regard to the equitable distribution of certain assets resulting from the appellant’s divorce decree from the appellee, Chester A. Kaminsky (hereinafter “husband”).2 The record fully supports the finding that certain monthly benefits checks (from the United Mine Workers of America, the federal Black Lung program, and the Social Security program) that the husband received during nine years of marriage were placed into joint bank accounts and used as support for both the husband and the wife. Therefore, the trial court did not err when it refused to calculate the value of all monthly benefits checks over the nine-year period and treat the amount as marital property, subject to equitable distribution, because the bulk of the money was already expended for the benefit of the parties prior to the commencement of the divorce action, and only those amounts existing in the accounts at the time the divorce action was commenced could properly be considered marital property.

The factual background concerning this case was discussed by the court at length in Kaminsky v. Kaminsky, 178 W. Va. 786, 364 S.E.2d 799 (1987). We will briefly review these facts, as they relate to the issues before the Court today.

The Kaminskys were married from 1942 until 1975. They briefly separated in 1975, during which time they executed a real property settlement. The wife took title to the homestead and the husband took title to another piece of realty. The husband sold the realty in 1975 for $30,000 and subsequently placed the proceeds in certificates of deposit later that same year.

The Kaminskys reconciled after a six-month separation, at which time the husband returned to live with the wife in the homestead, now owned by the wife.

On December 4,1984, the couple separated and commenced divorce proceedings.3

In our prior holding, this Court held that the executed portions of the 1975 settlement agreement were valid and that each party would retain such property and any appreciation on the property as separate property. Syl. pts. 1 and 2, Kaminsky, supra. Therefore, the wife would keep the home and any appreciation in value it attained, and the husband would keep the $30,000 in certificates of deposit and the interest earned on the certificates.

Thus, the marital home conveyed to Mrs. Kaminsky pursuant to the separation agreement, including any increase in the value thereof, is the separate property of Mrs. Kaminsky, not subject to equitable distribution. Likewise, the $30,000 proceeds from the sale of the real estate conveyed to Mrs. Kaminsky, including appreciation and earnings thereon, is the separate property of Mr. Kaminsky, not subject to equitable distribution.

Kaminsky, supra, 178 W. Va. at 790, 364 S.E.2d at 803.

We remanded the case to the circuit court because the parties did not execute other clauses in the 1975 separation agreement regarding other marital property accumulated prior to 1975, and to determine the value of the marital property accumulated from 1975 through December 4, 1984, all of which is subject to equitable distribution.

[585]*585The sole issue remaining before the Court today is the amount of the marital property accumulated between 1975 and 1984. In remanding the case for the accounting, we previously noted in regard to the additional marital property accumulated between 1975 and 1984 that the wife contended: “Mr. Kaminsky had acquired in excess of $109,000 [subsequently, alleged by the wife to be $105,000] in joint assets, consisting of certificates of deposit, savings account, a lump sum payment of black lung benefits, and interest.” Kaminsky, 178 W. Va. at 787 n. 2, 864 S.E.2d at 800 n. 2 (1978).

On remand, the family law master reviewed the evidence to determine the remaining marital property, which largely consisted of various bank accounts.

The alleged $105,000 in marital property accumulated between 1975 and 1984 was computed by the wife’s lawyer in the following manner:

$40,626.00 — United Mine Workers of America pension benefits, 1976-84, 111 months at $366.00 per month.

$19,301.60 — Federal Black Lung monthly benefits, 1976-84, 46 months at $419.60.

$17,837.90 — Social Security benefits, 29 months at $615.10.

$19,386.00 — Federal Black Lung lump sum award.

After reviewing the numerous debits and credits of various joint savings and checking accounts maintained by the parties from 1975 through 1984, the family law master concluded that the three monthly benefits checks received by the husband (UMWA pension, Black Lung and Social Security) were used by the husband to pay all household expenses and improvements.4 The husband also gave the wife, who did not work outside the marital home during this period, $100 per month. As of December 4, 1984, the date divorce proceedings commenced, the balance of these accounts was: $5,673.61 in a checking account and $6,823.42 in a savings account.

The $19,386.00 Black Lung lump sum award, unlike the monthly benefits, was not spent by the parties. It was placed in a certificate of deposit. The interest on the certificate of deposit was not accumulated and presumed by the family law master to be co-mingled with the funds in the savings and checking accounts, which were used for the benefit of the parties.

Similarly, the interest on the $30,000 in certificates of deposit, the separate property of the husband resulting from the 1975 sale of realty he received from the settlement agreement, was co-mingled with the funds in the savings and checking accounts.

The family law master estimated the nine years of interest to be valued at $9,120.98.

The family law master then listed the existing marital assets, subject to equitable distribution through findings of fact XX and XXI:

“XX. The marital assets of the parties are as of 4 December 1984 as follows:

Savings $ 6,823.42
Checking 3,631.65
Living Rm Suite 1,200.00
Console TV 1,500.00
Refrigerator & Stove 600.00
Subtotal $13,755.07
Black Lung sum 19,386.40
$33,141.47 Total

“XXI. Of the joint assets the parties have already received as follows:

[husband] [wife]
Savings $ 823.42 $6,000.00
Checking 3,631.65 0.00
Living Rm Suite 0.00 1,200.00
Console TV 0.00 1,500.00
Refrigerator and Stove 0.00 600.00
Black Lung 19,386.40 0.00
(lump sum) TOTAL $23,841.47 $9,300.00”

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Related

State Ex Rel. Dillon v. Egnor
423 S.E.2d 624 (West Virginia Supreme Court, 1992)

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Bluebook (online)
383 S.E.2d 548, 181 W. Va. 583, 1989 W. Va. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaminsky-v-kaminsky-wva-1989.