McKinney v. Kingdon

251 S.E.2d 216, 162 W. Va. 319, 1978 W. Va. LEXIS 354
CourtWest Virginia Supreme Court
DecidedDecember 5, 1978
DocketNo. 14195
StatusPublished
Cited by14 cases

This text of 251 S.E.2d 216 (McKinney v. Kingdon) 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
McKinney v. Kingdon, 251 S.E.2d 216, 162 W. Va. 319, 1978 W. Va. LEXIS 354 (W. Va. 1978).

Opinions

McGraw, Justice:

On September 14, 1977, respondent Regina McKinney filed in the Circuit Court of Wyoming County an action for divorce by which she prayed, Inter alia,

... that [she] be awarded and granted the exclusive possession and use of a 1977 Volkswagen Rabbit motor vehicle owned by the parties hereto for the transportation of [her] and her infant children in and about the transaction of their everyday affairs and business....

At trial, respondent testified that she and her husband owned the contested 1977 Volkswagen Rabbit as well as a 1977 Dodge van. In his petition before this Court, petitioner alleges that he is and has been the equitable, legal and record owner of the automobile in dispute.

Petitioner did not appear at trial, and the court awarded respondent a divorce, custody of the children and “the exclusive possession, ownership and use of a 1977 Volkswagen Rabbit motor vehicle owned by the parties hereto for the transportation and transaction of the everyday affairs of the [respondent] and her infant children.”

After the divorce proceeding below, petitioner attempted to convey title of the automobile to a third party and has refused to surrender it to the respondent.

It is the execution of the final order and the subsequent order of March 3, 1978, finding him in contempt of [321]*321court to which the petitioner seeks a writ of prohibition. He prays that this Court prohibit the enforcement of the final order insofar as it requires him to transfer the possession, ownership, and use of the 1977 Volkswagen Rabbit.1

It is axiomatic to this area of law that, “The jurisdiction of divorce cases is purely statutory, and the court possesses no powers in such cases involving matters of property beyond those conferred by statute....” State ex rel. Hammond v. Worrell, 144 W.Va. 83, 88-9, 106 S.E.2d 521, 524 (1958) citing Selvy v. Selvy, 115 W.Va. 338, 177 S.E. 437 (1934) and Phillips v. Phillips, 106 W.Va. 105, 144 S.E. 875 (1928).

Prior to 1931, the statute conferring jurisdiction was Code 1923, Ch. 64, § 11, which provided that:

Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce ... the court may make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them....

This provision and the cases under it, formerly gave the court “almost unlimited control of the property of the parties in a divorce proceeding.” State ex rel. Hammond v. Worrell, 144 W.Va. 83, 89, 106 S.E.2d 521, 525 (1958) quoting Selvy, supra at 341, 177 S.E. at 439. Phillips v. Phillips, supra, at 109, 144 S.E. at 877, for exam-[322]*322pie, discusses how “it was the intention of the act to give the court ... the power to settle the claims of the respective parties in and to the property acquired by them during marriage.”

But this provision was changed in the Code of 1931 and appears today in W.Va. Code § 48-2-15 as follows:

For the purpose of making effectual any order or decree provided for in this section the court may make any order or decree concerning the estate of the parties, or either of them, as it shall deem expedient, (emphasis added).

Selvy v. Selvy, supra at 341, 177 S.E. at 439, characterizes this revised provision as “decidedly more restrictive” than its predecessor and explains how circuit court jurisdiction over property of the parties to a divorce was restricted by the statutory change:

[U]nder the [new] divorce statute of this state, the court’s control over the estate of the parties, as such, is indirect and is such only as is necessary to enforce its decrees for alimony and for maintenance. Under the ... former statute ... that control was said to be direct.

Selvy was preceeded by Games v. Games, 111 W. Va. 327, 161 S.E. 560 (1931), the first case dealing with this new provision. The Court in Games held at 330, 161 S.E. at 562, that:

Obviously, under this new provision, the power of the court to deal with real estate in a divorce suit is secondary and not primary. The corpus of real estate ordinarily may not be desired as and for alimony, but it may be impressed as a guarantee for the payment of alimony.

The Revisers’ Note to 48-2-15, Code 1931. , similarly affirms that the circuit courts have only secondary power over the property of a partner to a divorce and may exercise this power only “for the purpose of making effectual any order or decree,” such as when a court makes a money decree for alimony a lien on the hus[323]*323band’s land. See, e.g., Goff v. Goff, 60 W.Va. 9, 53 S.E. 769 (1907).

The Court uniformly followed this interpretation for over 45 years as exemplified by this second syllabus point from Wood v. Wood, 126 W.Va. 189, 28 S.E.2d 423 (1943), and State ex rel. Hammond v. Worrell, supra, as well as by Kinsey v. Kinsey, 143 W.Va. 574, 583, 103 S.E.2d 409, 414 (1958):

Code, 48-2-15, confers on a court in a divorce suit power to make any order or decree concerning the estate of the parties or either of them, as it may deem expedient, only for the purpose of making effectual any order or decree made in the case relating to the maintenance of the parties, or the custody and maintenance of their children.

The syllabus of Smith v. Smith, 134 W.Va. 448, 49 S.E.2d 894 (1950) explains well the limited statutory power of the courts to deal with the property of the parties to a divorce action.

In a suit for divorce, courts are empowered by Code, 418-2-15, to enter such orders and decrees as may be deemed expedient to secure compliance with orders and decrees relating to the care, custody, education and maintenance of minor children, including the power to impound personal property; such power is a discretionary one reviewable by the Supreme Court of Appeals.

In that case the trial court’s impounding of proceeds from the sale of bonds as security for the payment of support and maintenance was found to be an abuse of discretion.

Thus, the statute has uniformly been interpreted to permit courts to deal with the property of the parties when necessary to effectuate orders entered for the welfare of the parties or of their minor children. Historically, as shown above, this has been used almost exclusively to guarantee the payments for support, maintenance, [324]*324education, etc. Characteristically, the husband’s real or personal property is tied up one way or another in order to secure his continued compliance with orders of the court.

But securing compliance by guaranteeing payments is only one way of “making effectual” a divorce order or decree. As the original Revisers’ Notes to W.Va. Code 48-2-15, W.Va. Code 1931, instruct, “The court ... is free to follow any other plan that is called for by equity and the circumstances.”

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McKinney v. Kingdon
251 S.E.2d 216 (West Virginia Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
251 S.E.2d 216, 162 W. Va. 319, 1978 W. Va. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinney-v-kingdon-wva-1978.