Stevens v. Stevens

505 S.E.2d 674, 202 W. Va. 611, 1998 W. Va. LEXIS 83
CourtWest Virginia Supreme Court
DecidedJuly 2, 1998
DocketNo. 24758
StatusPublished
Cited by2 cases

This text of 505 S.E.2d 674 (Stevens v. Stevens) 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
Stevens v. Stevens, 505 S.E.2d 674, 202 W. Va. 611, 1998 W. Va. LEXIS 83 (W. Va. 1998).

Opinion

PER CURIAM:1

Joyce Stevens, the appellant, appeals an April 18, 1997 order by the Circuit Court of Boone County that adopted the findings and recommendations of a family law master. The appellant appeals the amount of equitable distribution and attorney fees. Appellant further argues that the circuit court abused its discretion in withholding statutory interest on the equitable distribution which had been awarded. We affirm in part, reverse in part and remand.

i.

The appellant and the appellee, Thomas Stevens, Jr., were married on September 22, 1979 and separated on August 16,1993, after which they filed for divorce in Boone County. During the course of their marriage the couple had three children.

At the time of the divorce the parties were owners of a one-half undivided interest in a funeral home business,2 and the appellant was a partner in a local real estate business. Some time prior to the final divorce hearing, the appellant purchased her real estate partner’s share of that business.

In anticipation of the divorce hearing, the parties obtained the services of several experts to ascertain the value of the two business interests owned by the parties. The record is incomplete regarding which expert was retained by each party, but it would appear that one of the experts for the appellant was the one that the family law master found to be the most reasonable and balanced.3 In determining the value of the funeral home business, this expert appraiser examined the “intrinsic value of the assets, the value of the income flow, and the fair market value of the equity in the marketplace.” 4 This same expert witness evaluated the value of the real estate business.

In addition to the funeral home and real estate businesses, the parties also owned a house in which neither party resided. No appraisal had been done of the house prior to the final divorce hearing.

[614]*614The family law master determined that each party’s equitable share in the funeral home business was $150,447.25. The law master further determined that each party’s equitable share in the real estate business was $15,361.50. With the determination that the appellant would retain the parties’ full interests in the real estate business, and that the appellee would retain their full interests in the funeral home business, the law master subtracted the value of the appellee’s interests in the real estate business from the appellant’s interest in the funeral home business and, as a final award, recommended that the appellant receive from the appellee $135,-085.75 as equitable distribution. Additionally, the proceeds from the sale of the jointly-owned house were to be equally divided.

The law master also directed that the house be sold, with the recommendation that the appellee not be required to pay to the appellant her share of the equitable distribution until 6 months after the sale of the house. The house has yet to be sold and the appellant has yet to receive any portion of her equitable distribution.

The family law master recommended only $1,000.00 in attorney fees for the appellant due to the large amount of liquid assets she was going to receive.

Both parties filed petitions for review and their exceptions to the family law master order were argued before the circuit court. The circuit court subsequently denied both parties’ exceptions and adopted the recommended order of the family law master. This appeal followed.

II.

The standard of review for this case is a three-pronged analysis:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

The appellant first assigns as error the circuit court’s failure to consider “preneed funeral monies” held in escrow accounts maintained by the appellee’s funeral home as martial assets. Preneed funeral contracts are permitted in this State to enable individuals to arrange and pay for funerals for themselves or for family members in advance of need. Strict laws have been enacted to provide “all possible safeguards whereunder such prepaid funds cannot be dissipated, whether intentionally or not, in order that such funds are available for the payment of funeral services so arranged.” W.Va.Code, 47-14-1 [1995].

Preneed funeral contracts may be canceled prior to the death of the beneficiary. W.Va. Code, 47 — 14—6(b) [1995]. In addition to the beneficiary being able to cancel the contract, the beneficiary may also transfer the contract to another funeral home even if the contract has been made irrevocable. W.Va. Code, 47-14-8(d) [1995]. If it is determined at the time of the beneficiary’s death that there are insufficient funds from the beneficiary’s account, the funeral home must provide those services and materials agreed to at no additional cost. W.Va.Code, 47-14-7(b)(1) [1995]. If after paying for the services and costs of the funeral, it is determined that there is a surplus of funds in the beneficiary’s account, the funeral home must return the balance to the estate of the beneficiary or as otherwise provided for in the contract. W.Va.Code, 47-14-7(b)(2) [1995].

However, the statutes that govern preneed funeral contracts do provide that a funeral home business which sells preneed funeral contracts “may retain for ... [its] own use and benefit ... an amount not to exceed ten percent of the total original amount” for selling expenses and overhead. W.Va.Code, 47-14-5(a)(l) [1995],

It is obvious from a reading of these statutes that preneed funeral contracts are primarily for future services and the funeral home cannot use most of the money prior to the fulfillment of the services. Not only is [615]*615the money not to be used by the business until some uncertain time, but the contract may be canceled, or it may be transferred to another funeral home. Thus, as assets, our laws make contracts for preneed funerals, other than the small amount permitted for costs and overhead, of highly speculative worth.

Equitable distribution is derived by a division of marital property:

For purposes of equitable distribution, W.VaCode, 48-2-32(d)(l) (1984), requires that a determination be made of the net value of the marital property of the parties.

Syllabus Point 2, Tankersley v. Tankersley, 182 W.Va. 627, 390 S.E.2d 826 (1990).

The appellant argues that the preneed contracts created during the course of her marriage to the appellee are marital assets and should be valued for equitable distribution. Appellant attempts to analogize preneed funeral contracts to the contingency fees that were at issue in Metzner v. Metzner, 191 W.Va. 378,

Related

May v. May
589 S.E.2d 536 (West Virginia Supreme Court, 2003)

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Bluebook (online)
505 S.E.2d 674, 202 W. Va. 611, 1998 W. Va. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-stevens-wva-1998.