# Whiting v. Whiting

> West Virginia Supreme Court · July 18, 1990 · 183 W. Va. 451

URL: https://www.frixlaw.com/law-library/cases/9575287

## Case

- **Full name:** Harry J. WHITING v. Evelyn L. WHITING
- **Court:** West Virginia Supreme Court
- **Decided:** July 18, 1990
- **Citations:** 183 W. Va. 451; 396 S.E.2d 413
- **Precedential status:** Published
- **Opinion:** Dissent by Neely
- **Judges:** Miller, Neely
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9575287

## How later opinions describe it (automated extraction)

- noting that many couples jointly title property simply for ease of administration

## Opinion text

NEELY, Chief Justice,
dissenting:
The majority opinion is wrong — wrong in its understanding of human nature, wrong in its statutory interpretation and wrong in its analysis of legislative intent.
*464 I.
Most married persons do not contemplate divorce. Ninety-nine percent believe that their marriage will beat the odds and that they will fulfill their marital promises until death parts them. Because the marriage is expected to continue, most spouses use, title and transfer property for the benefit of the marriage and their partners. However, if the marriage ends in a divorce, neither party intends unjustly to enrich the other.
If one partner separates property, even if separately owned, from the couple’s assets, the other partner’s most likely reaction is to question the viability of the marriage. The very act of pigeonholing property — his, hers, ours — undermines the marriage. Sedulously protecting separate property at every transfer, renewal, reinvestment or exchange will weaken a marriage by emphasizing and reemphasizing the viability of the divorce option.
In addition to the psychological reassurance to one’s spouse of a commitment to the marriage, married couples have three major practical incentives to commingle their assets: (1) the federal estate tax exemption; (2) protection from creditors; and, (3) ease of administration, both before and after death.
Couples who have amassed substantial wealth want to pay the least tax legally possible. By taking advantage of federal estate tax deductions, credits and low rates (rates begin at 35% and mount quickly to 50%), a married couple can transfer up to $1,200,000 to their children without paying federal estate taxes and the remaining estate is then subject to lower rates. 1 Jointly titled property, or property transferred from one spouse with an excess of property titled in his or her name to the other spouse’s name, allows a married couple to reduce the tax liability that occurs at the death of one spouse and increases the amount passed tax free to the children.
Protection of assets from creditors is another incentive to title property jointly. Some couples struggle every month to pay bills and their only asset is a house that they want to protect from creditors by titling it jointly. Other married couples may have one spouse who engages in business activities that produce substantial contingent liabilities. If the spouse subject to the liability is also the primary support for the family and has most assets titled in his name alone, that spouse’s assets, either marital or separate, should be jointly titled to protect at least part of them from creditors. W.Va.Code, 48-3-10 [1984], protects a portion of jointly titled property from creditors because it creates a presumption of gift between the spouses; and the creditor can reach only the debtor spouse’s share of the jointly titled property. Furthermore, reaching the debtor’s share when property is jointly titled involves expensive litigation that makes the whole undertaking uneconomical. See Harris v. Crowder, 174 W.Va. 83 , 322 S.E.2d 854 (1984). At the end of the day most disputes between debtors and creditors are settled, and joint title gives the debtor the edge in settlement negotiations.
Finally most couples jointly title property for ease of administration, both before and after death. Either spouse can renew the car tags, pay the property tax, redeem the bonds and, when necessary, transfer, invest or liquidate property. Joint title also is used to avoid probate which reduces paperwork, expenses, and delay. At the *465 death of a spouse, jointly titled property can be quickly and easily transferred to the living spouse. The widow/widower can use or sell the property immediately.
Jointly titled property benefits almost all married couples, middle class as well as rich and poor. However, under the majority opinion the benefits of joint title that were available under the old law as enacted by the legislature (see section III infra) are now outweighed by the possibility of loss through a divorce.
The majority opinion’s presumption that jointly titled property which would otherwise qualify as “separate property” is a gift to the marital estate is not based on an accurate understanding of the functioning of most couples. Aunt Minerva’s quilt, although used by both spouses, really belongs to her niece. Mother’s house really belongs to her daughter. Grandpa John’s watch and stock really belong to his grandson. Most people jointly title separate property as a gift, but a gift conditioned on the couple’s remaining married.
By creating a presumption in favor of marital property at the time of divorce based on mere title, the majority rewards spouses who, by keeping the property in only their names, refuse to allow the marital unit to use their separate property, and punishes spouses who allow the marital unit to use their separate property. The generous and caring spouses end up in a divorce losing part of their separate property-
Although I applaud the majority’s concern that the family unit be financially secure, its approach (redistributing separate property of the unwary to the marital estate) will fail because it’s based on a misunderstanding of human nature. The majority probably believes that their interpretation of our divorce statute will help homemakers in a divorce by increasing the marital property subject to equitable distribution. But today’s shortsighted action in temporary redistribution is similar to policies we regularly observe in the Third World where productive assets are distributed to favored political groups never to be replaced.
In this regard, perhaps the best example of Third World political redistribution occurred in Uganda during the 1970’s. President Amin, attempting to increase the Black Africans’ economic share, expropriated the Asian Indian store owners and distributed their assets to inexperienced Black followers of the regime. Those who received this unexpected boon ate the food, used up the supplies, and then quickly went out of business. Uganda’s economy ground to a halt and many starved for lack of a sophisticated distribution network. 2 Alas, the majority, similar to President Amin, looks only to the short run benefits to a favored constituency and fails to see longer term problems of killing the fabled golden-egg-laying goose.
Divorce law, along with criminal law, quickly becomes known to people who potentially are affected by it. Many prison inmates know more procedural and substantive criminal law than recent law school graduates. The reason for their knowledge, of course, is that criminal law directly affects their current condition. In divorce law today’s majority opinion will catch those so naive as to have relied on the old law, but when the majority opinion’s redistribution effect becomes generally known, spouses will individually title their separate property.
Family security will be hurt by this decision. During the marriage, spouses will question which is more likely, death or divorce? Other spouses who believe divorce a bare possibility will still ask who is more likely to get my money, creditors or my spouse? Still others will question whether the ease of administration is worth losing half the property in a divorce. Spouses will keep their separate property titled individually and the family will not have the financial benefits of joint titling or tax-saving interspousal transfers. In the end the family loses financially and emo *466 tionally, and this loss occurs in all marriages and not just those ending in a divorce.
II.
Not only is the majority’s opinion based on a misunderstanding of human nature, but it fails to follow the law. According to our equitable distribution statute, at the time of a divorce, property is classified based on how and when the property was acquired. For example, marital property includes: “All property and earnings acquired ... during the marriage ... regardless of the form of ownership ...” (Emphasis added), W.Va. Code, 48-2-l-(e) [1986] 3 ; and separate property includes: “(1) Property acquired ... before marriage; or (2) ... acquired ... in exchange ..., or (3) ... acquired ... during a marriage but excluded ... by a valid agreement ...; or (4) ... acquired ... by gift, bequest, devise, descent or distribution; or (5) ... acquired ... after the separation ...; or (6) Any increase in the value of separate property ...” (Emphasis added), W.Va.Code, 48-2-l(f) [1986]. 4 Neither type of property is preferred; rather, property is classified not according to its form of ownership but on how and when it was acquired. This dual property system was adopted because of “essentially commonsense extrapolations of fairness notions and beliefs about spouses’ expectation.” Levy, “An Introduction to Divorce-Property Issues,” 23 Fam.L.Q. 147, 152 (1989).
Additional evidence of the legislature’s intention to classify property according to its means of acquisition rather than its title is found in the proviso added to W.Va. Code, 48-3-10 in 1984 as part of our equitable distribution statute. The added proviso requires, at the time of a divorce, that “gift between spouses must be affirmatively proven.” 5 Certainly for separate *467 property to become martial property there must be a gift. By adding the amendment to W.Va.Code, 48-3-10 [1984], the legislature indicated that although title alone was sufficient to protect property from creditors, mere title was not sufficient to prove ownership in a contest between the spouses at the time of divorce and affirmative proof of a gift was required. 6
III.
The majority opinion is based on the unsupported inference that the legislature, in passing our equitable distribution statute, had a “marked preference for ... marital property,” (Slip Op. 14) and based on that “presume[s property jointly titled] to be marital property for purposes of equitable distribution.” The majority’s analysis of legislative intent is not based on the language found in the equitable distribution statute, which classifies property according to how and when the property was acquired. (See supra section II, for the statutory definitions of marital property and separate property.) Our statute’s dual definition indicates no “marked preference” for either type of property; rather, classification of property depends on how and when the property was “acquired” and not its title. The legislature’s intent to create a dual property system is also shown by the provision added to W.Va.Code, 48-3-10 [1984], requiring that at the time of a divorce, a gift between the spouses be affirmatively proven.
Furthermore, to add insult to injury in the “legislative intent” game, the majority’s opinion is based on a version of the equitable distribution statute that was actually rejected by the legislature. The Senate version of the equitable distribution statute, according to the Journal of the House of Delegates (1984) 529-42, proposed the following definition of marital property:
All property, whether real or personal, and earnings, acquired by either party during the marriage is rebuttably presumed to be marital property regardless of whether title is held individually or in trust for a party or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety, except:
(1) Property acquired by one party before the marriage or acquired in exchange for property acquired prior to the marriage, including any increase in value due to inflation or to a change in market value as a result of conditions outside the control of the parties, but excluding any additional or improvement made by the expenditure of marital funds or as a result of work furnished by either or both of the parties during marriage with the value of such addition or improvement *468 being in the ratio of the value added and the value of the property immediately before the addition or improvement was made;
(2) Property acquired by one party and excluded by valid agreement of the parties entered into before, during or after the marriage;
(3) Property acquired by one party by gift, bequest, devise or descent, including any increase in value due to inflation or to a change in market value as a result of conditions outside the control of the parties, but excluding any addition or improvement made by the expenditure of marital funds or a result of work furnished by either or both of the parties during marriage with the value of such addition or improvement being in the ration of the value added and the value of the property immediately before the addition or improvement was made, or to the extent that equity is increased by the parties during the marriage; and
(4) Property acquired by one party after the final separation and before the divorce or annulment. [Emphasis added].
The Senate version, quoted above, was roundly rejected in favor of our dual property system, quoted earlier.
The justification offered by the majority for giving a rebuttal presumption in favor of marital property is that without the presumption, spouses who paid for the property with separate funds would, in a divorce, end up with their separate property. (Op. at 421). The result the majority seeks to avoid is the result intended by the legislature — namely that separate property, absent a gift or agreement by the parties, remain with its original owner. Indeed most people would agree that it is a fair and just result that separate property should, absent an affirmatively proven gift, remain with its owner. The majority’s justification is without merit and its decision adopts, by fiat, the very position rejected by the legislature.
. See V.S. Naipaul, A Bend in the River (1979), for an accurate, although fictional account of Uganda’s redistribution.
.The complete definition of marital property found in W.Va.Code, 48-2-l(e) [1986], is:
(1) All property and earnings acquired by either spouse during a marriage, including every valuable right and interest, corporeal or incorporeal, tangible or intangible, real or personal, regardless of the form of ownership, whether legal or beneficial, whether individually held, held in trust by a third party, or whether held by the parties to the marriage in some form of co-ownership such as joint tenancy or tenancy in common, joint tenancy with the right of survivorship, or any other form of shared ownership recognized in other jurisdictions without this state, except that marital property shall not include separate property as defined in subsection (f) of the section; and
(2) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from (A) an expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property, or (B) work performed by either or both of the parties during the marriage.
The definitions of "marital property" contained in this subsection and "separate property” contained in subsection (f) of this section shall have no application outside the provisions of this article, and the common law as to the ownership of the respective property and earnings of a husband and wife, as altered by the provisions of article three [§ 48-3-1 et seq.] of this chapter and other provisions of this code, are not abrogated by implication or otherwise, except as expressly provided for by the provisions of this article as such provisions are applied in actions brought under this article or for the enforcement of rights under the article.
. The complete definition of separate property found in W.Va.Code, 48 — 2—1(f) [1986], is:
(1) Property acquired by a person before marriage; or
(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage; or
(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage; or
(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution; or
(5) Property acquired by a party during a marriage but after the separation of the parties and before the granting of a divorce, annulment or decree of separate maintenance; and
(6) Any increase in the value of separate property as defined in subdivision (1), (2), (3),
(4) or (5) of this subsection which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.
. W.Va.Code, 48-3-10 [1984], with the added underlined proviso, states:
Where one spouse purchases real or personal property and pays for the same, but takes *467 title in the name of the other spouse, such transaction shall, in the absence of evidence of a contrary intention, be presumed to be a gift by the spouse so purchasing to the spouse in whose name the title is taken: Provided, That in the case of an action under the provisions of article two [§ 48-2-1 et seq.] of this chapter wherein the court is required to determine what property of the parties constitutes marital property and equitably divide the same, the presumption created by this section shall not apply, and a gift between spouses must be affirmatively proved.
. The majority opinion misstates our holding in Roig v. Roig, 178 W.Va. 781 , 364 S.E.2d 794 (1987) and in effect returns to Hamstead v. Hamstead, 178 W.Va. 23 , 357 S.E.2d 216 (1987) that we specifically overruled in Syllabus Point 4, Roig supra. The majority also ignores orn-eases that recognized the dual property system and adopted a “source of funds" theory for classifying property. See Shank v. Shank, 182 W.Va. 271 , 387 S.E.2d 325 (1989) (in which Justice Brotherton, writing a unanimous opinion, used the source of funds to classify property that appreciated); Rogers v. Rogers, 182 W.Va. 388 , 387 S.E.2d 855 (1989) (in which Justice Workman, again writing a unanimous opinion, noted the record was deficient to determine the ownership of certain jointly titled real estate and remanded the case for further development to determine if the items were in fact separate or marital property).
The majority’s discussion of other jurisdictions is flawed because although most recognize interspousal gifts, these gifts, the same as gifts from third parties, require affirmative proof showing an intention to make a gift, delivery and acceptance. See Moser v. Moser, 117 Ariz. 312 , 572 P.2d 446 (1977); Potter v. Potter, 280 Ark. 38 , 655 S.W.2d 382 (1983); In re Marriage of Weinstein, 128 Ill.App.3d 234 , 83 Ill.Dec. 425 , 470 N.E.2d 551 (1984); Smith v. Smith, 472 A.2d 943 (Me.1984); Lowry v. Lowry, 375 Pa.Super. 382 , 544 A.2d 972 (1988). In addition our legislature specifically required affirmative proof of interspousal gifts. W.Va.Code, 48-3-10 [1984].

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9575287. Public record. Not legal advice.