Tallman v. Tallman

396 S.E.2d 453, 183 W. Va. 491, 1990 W. Va. LEXIS 152
CourtWest Virginia Supreme Court
DecidedJuly 25, 1990
Docket18479
StatusPublished
Cited by12 cases

This text of 396 S.E.2d 453 (Tallman v. Tallman) 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
Tallman v. Tallman, 396 S.E.2d 453, 183 W. Va. 491, 1990 W. Va. LEXIS 152 (W. Va. 1990).

Opinions

PER CURIAM:

This is an appeal by Anna Jean Tallman from an order of the Circuit Court of Randolph County dividing and distributing property in a divorce proceeding. On appeal, the appellant claims that the trial court committed a number of errors relating to a 115-acre tract of land owned by her and her former husband, that the court erred in awarding her former husband one-half the value of her pension fund, and that the court should have declared $5,000.00 in savings bonds to be her separate property. She also claims that the trial court erred in dividing certain securities allegedly converted by her former husband. After reviewing the record, this Court believes that the trial court did err in the treatment of the 115-acre tract of land and in its treatment of the savings bonds and reverses on those grounds.

The appellant and Clay S. Tallman were married in September, 1949. Prior to the marriage, Mr. Tallman had acquired substantial assets through inheritance from his grandfather and through accumulation of income from his inherited assets.

Shortly after the marriage, the appellant and her husband purchased a tract of land containing approximately 115 acres located in Randolph County, West Virginia. The land was a working farm, and for the land, the farm equipment, and the livestock the parties paid approximately $25,000.00. The land was acquired in the names of both parties as joint tenants with the right of survivorship. According to evidence adduced during trial, a substantial portion of the purchase price, as much as $20,000 of the $25,000 purchase price, was provided by the appellant’s husband from the sums which he had accumulated prior to the marriage. The residue was borrowed from his uncles.

For approximately a year after buying the farm, the appellant’s husband worked for the federal government and also worked on the farm. The appellant worked as a housewife and likewise worked on the farm.

In 1951 or 1952, the appellant’s husband began devoting his full energies to the farm. The appellant continued to work as a housewife and worked on the farm until 1963, when she was employed by Davis & Elkins College to teach physical education.1 From 1963 until the time of the divorce, the appellant taught consistently, and earned substantial amounts from Davis & Elkins College.

On May 25,1984, the appellant filed for a divorce in the Circuit Court of Randolph [494]*494County. In the complaint, she prayed for a division and distribution of the parties’ property in accordance with the provisions of the equitable distribution statute, W. Va. Code, 48-2-32.

By order dated August 15, 1986, the circuit court granted the divorce on the ground that the parties had lived separate and apart for one year next preceding the institution of the civil action. The court, at that time, reserved ruling on the property questions which were being examined by a commissioner.

By the time the parties were separated, they had acquired significant assets. The appellant’s husband inherited additional assets property after marriage, and the appellant also inherited a substantial sum. Throughout the marriage the appellant’s husband received income from his grandfather’s estate. The parties at the time of their divorce owned a number of bank accounts and securities, as well as the 115-acre farm which they had improved since their marriage. They had also purchased additional land and various items of personal property. The appellant had contributed $63,656.54 to a retirement plan administered by the Teachers Insurance & Annuity Association, and her husband had acquired an annuity which was scheduled to pay him approximately $2,000.00 a month after he reached the age of sixty-five.

The commissioner appointed by the court took extensive evidence on the parties’ property, on the parties' various inheritances, and on the parties’ respective contributions to the marriage. On January 31, 1986, the commissioner filed a report in which he outlined a division of that property between the parties, which, among other things, granted the appellant’s husband a two-thirds interest in the property which the parties purchased shortly after marriage.

After receiving the commissioner’s report, the circuit court, by order dated April 9, 1987, affirmed it, over the exceptions of the parties, and adopted it in its entirety.

One of the appellant’s principal claims on appeal is that the trial court erred in adopting the commissioner’s recommendation that her husband be awarded two-thirds of the 115-acre tract which originally constituted the farm and that she receive only one-third. She, in essence, claims that the tract was marital property and should have been evenly divided.

Recently in syllabus point 4 of Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), decided after the trial court’s ruling in the present case, the Court indicated that:

Where, during the course of the marriage, one spouse transfers title to his or her separate property into the joint names of both spouses, a presumption that the transferring spouse intended to make a gift of the property to the marital estate is consistent with the principles underlying our equitable distribution statute.

The Court outlined the procedure to be followed in distributing marital property created by titling in joint names and indicated that an unequal distribution of such marital property may, under appropriate circumstances, be made. The court, however, indicated that before such a division may be made, the division order must aver to the factors in W.Va.Code, 48-2-32(c). The Court also said: “Where an unequal distribution is contemplated, there are additional adjustments that must be considered as set out in W.Va.Code, 48-2-32(d)(2).”2 [495]*495Whiting v. Whiting, 183 W.Va. at 455, 396 S.E.2d at 417.

In the present case, the Court does not believe that the commissioner or the trial court followed the procedure outlined in Whiting in dividing the 115-acre tract or addressed all the factors required by W. Va. Code, 48-2-32(c) and W.Va.Code, 48-2-32(d)(2). Specifically, the commissioner’s findings did not consider the fact that titling the tract in joint names presumptively made it marital property, and the commissioner and the court did not discuss the effect of the marriage on the income-earning abilities of the parties or, to any extent, address conduct by either party that lessened or increased the value of the marital property. Likewise, the findings did not address the parties’ actions in the context of W.Va.Code, 48-2-32(d)(2). Consequently, this Court believes that under the rule in Whiting, in the absence of the consideration on all the factors, the unequal division of the 115-acre farm was not appropriate.

The appellant also challenges the procedure employed by the commissioner in establishing the value of the parties’ farm.

During the proceedings before the commissioner, the appellant’s husband submitted, ex parte copies of a real estate reappraisal report prepared by Cole, Layer, Trumble & Company for the State of West Virginia to be used in conjunction with the reassessment of the property for property tax purposes.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Arneault v. Arneault
639 S.E.2d 720 (West Virginia Supreme Court, 2006)
Gross v. Gross
469 S.E.2d 636 (West Virginia Supreme Court, 1996)
Burnside v. Burnside
460 S.E.2d 264 (West Virginia Supreme Court, 1995)
Pratt v. Pratt
454 S.E.2d 400 (West Virginia Supreme Court, 1994)
Tallman v. Tallman
438 S.E.2d 853 (West Virginia Supreme Court, 1993)
Wood v. Wood
403 S.E.2d 761 (West Virginia Supreme Court, 1991)
Holst v. MacQueen
403 S.E.2d 22 (West Virginia Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
396 S.E.2d 453, 183 W. Va. 491, 1990 W. Va. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tallman-v-tallman-wva-1990.