Metzner v. Metzner

446 S.E.2d 165, 191 W. Va. 378, 44 A.L.R. 5th 883, 1994 W. Va. LEXIS 69
CourtWest Virginia Supreme Court
DecidedMay 27, 1994
Docket21380
StatusPublished
Cited by27 cases

This text of 446 S.E.2d 165 (Metzner v. Metzner) 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
Metzner v. Metzner, 446 S.E.2d 165, 191 W. Va. 378, 44 A.L.R. 5th 883, 1994 W. Va. LEXIS 69 (W. Va. 1994).

Opinions

BROTHERTON, Chief Justice:

In this case, we are asked to determine whether the compensation that an attorney might receive for contingent fee contracts and other future earned fees for cases which are pending at the time of a divorce is “marital property” within the meaning contemplated by West Virginia Code § 48-2-l(e)(l): “property and earnings acquired ... during the marriage.” The appellant, Sydney 0. Metzner, now appeals from the lower court’s ruling that only accounts receivable as of the date of separation are considered as marital property subject to equitable distribution.

The parties herein, William R. and Sydney 0. Metzner, were married on September 6, 1965, in Ohio County, West Virginia. They separated after twenty-four years of marriage on March 8, 1989, when Mrs. Metzner filed a complaint in the Circuit Court of Ohio County seeking an absolute divorce, equitable distribution of marital property, alimony, and allocation of marital debts. The Metz-ners have two children, both emancipated.

Before we discuss the trial court’s distribution of the couple’s assets, a brief overview of their employment and financial histories is necessary. After graduating from law school at the University of Cincinnati in June, 1965, Mr. Metzner worked as an associate in two Wheeling, West Virginia, law firms from September, 1965, through December, 1969. He practiced law in a partnership with- another attorney in Wheeling from January, 1970, through September, 1981. In October, 1981, he became a solo practitioner.

Mr. Metzner states that low net profits in 1985 and 1986, “coupled with extraordinary expenses for the children’s educations, the daughter’s marriage, and the payment of the wife’s ‘secret’ debts,” contributed to his inability to pay his tax obligations until the following years. In 1987, the parties bought a home in Morgantown, West Virginia, for their son to live in while attending college, with the intention of procuring other tenants to reside in the house and contribute rent. Mr. Metzner now describes this as a “regrettable purchase” and states that the house’s market value declined because of the extensive damages it sustained during its occupancy by his son and his friends. Liens for delinquent taxes arose in 1988 and 1989.

During the years 1975-1979, Mrs. Metzner occasionally did secretarial work for the law partnership. Her earnings in these years were $1,700 (1975), $1,900 (1976), $2,100 (1978), and $3,100 (1979). In 1980, Mrs. Metzner began working full time as a secretary for Youghiogheny & Ohio Coal Company (Y & O). She was terminated in 1986 for alleged insubordination. Mrs. Metzner’s [380]*380gross earnings ranged from $9,759 in 1980 to $17,230 in 1985. Early in 1986, she earned several thousand dollars at Y & O, and Mr. Metzner paid her $3,000 for working in the law firm from June through August, 1986. Her gross earnings in 1986 were $7,347. Also, during 1986 and for much of 1987, Mr. Metzner’s elderly uncle paid her $800 a month to fix his meals and provide him with companionship. Mrs. Metzner testified that “then I had a lot of cash.” Mr. Metzner states that Mrs. Metzner received unemployment benefits and her Y & O retirement fund ($6,500) during this time, and he also indicates that, at his wife’s request, he took over payments on a Cadillac she bought in May, 1985, “the only so-called ‘basic’ bill on which she ever had paid.”

Following their separation, the parties eventually agreed on temporary relief for Mrs. Metzner, and an interlocutory order was entered by the family law master on May 31, 1989. The order awarded Mrs. Metzner temporary use and occupancy of the marital home and directed Mr. Metzner to continue to pay the monthly installments on two bank loans secured by liens against the marital home and the residence in Morgan-town (including real estate taxes and casualty insurance for the marital home) and to continue to pay for all of the utility services, except the telephone, used in the marital home. According to the order, this temporary relief was to expire on July 1, 1989. This order also provided for the exchange by the parties of financial disclosures of assets and liabilities within a reasonable time prior to July 1, 1989.

The final divorce hearing was held before the family law master on December 19, 1989. Mrs. Metzner did not appear in person or by counsel. Mr. Metzner presented evidence to support absolute divorce on grounds of irreconcilable differences, but requested that the family law master reserve all economic issues, including equitable distribution, for later decision.

Through a new attorney, Mrs. Metzner filed a petition on December 27,1989, setting forth hér exceptions to the family law master’s recommended decision and seeking to disqualify both the family law master and her husband’s attorney from the case. Mrs. Metzner’s petition and motions were heard and argued before Judge Tsapis on February 2, 1990.

Following this hearing, Judge Tsapis assumed jurisdiction over this ease and accepted the recommendations of the family law master, awarding the parties an absolute divorce on grounds of irreconcilable differences and reserving all other issues for later decision. In addition, Judge Tsapis continued Mr. Metzner’s obligations to Mrs. Metzner under the May 2, 1989, interlocutory order and added that Mr. Metzner was to pay any medical expenses incurred by Mrs. Metzner that were not covered by her insurance.1

On February 8, 1990, Mr. Metzner was served with combined interrogatories and requests for production of documents. Mrs. Metzner sought lists of all Mr. Metzner’s work in progress, including contingent fee cases as of the date of separation, and copies of all time logs, files, ledgers and other materials related to such work. She also sought copies of all fee-splitting agreements as of the date of separation, copies of all monthly billings and accounts receivable since the date of separation, all year-end financial ac-countings and tax returns for 1988 and 1989, copies of all bank statements, deposit slips, and cancelled checks, and a list of all fixed [tangible] assets used in his law practice, and their market values, as of the date of separation. Mr. Metzner objected to the discovery requests for a variety of reasons, including his physical inability to perform the work necessary for compliance after he had a heart attack on March 14, 1990.

On May 17, 1990, the trial court issued a memorandum which directed Mr. Metzner to comply with Paragraph H of the discovery requests (accountings and tax returns for 1988 and 1989), requested a medical report [381]*381from his doctor, and scheduled a hearing for June 1, 1990, to determine the date of separation.

In a memorandum of opinion dated July 3, 1990, the trial court stated that the separation date for purposes of equitable distribution was March 8, 1989. The court also indicated that Mr. Metzner’s work in progress, including potential fees in contingent fee eases, were not marital property subject to equitable distribution. However, the court decided that his accounts receivable as of the date of separation were marital property.

For this reason, the lower court sustained Mr. Metzner’s objections to paragraphs A through E of the discovery requests (relating to work in progress, particularly contingent fee cases), but directed him to respond to paragraphs F through J (fee-splitting agreements, accounts receivable, accountings and tax returns, bank account records, and fixed assets) within twenty days. On July 23, 1990, Mr. Metzner served Mrs.

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Bluebook (online)
446 S.E.2d 165, 191 W. Va. 378, 44 A.L.R. 5th 883, 1994 W. Va. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metzner-v-metzner-wva-1994.