# Burnside v. Burnside

> West Virginia Supreme Court · March 31, 1995 · 194 W. Va. 263

URL: https://www.frixlaw.com/law-library/cases/9589721

## Case

- **Full name:** Carlos James BURNSIDE, Plaintiff Below, Appellee, v. Jacquelyn Nagle BURNSIDE, Defendant Below, Appellant
- **Court:** West Virginia Supreme Court
- **Decided:** March 31, 1995
- **Citations:** 194 W. Va. 263; 460 S.E.2d 264
- **Precedential status:** Published
- **Opinion:** Dissent by Neely
- **Judges:** Cleckley, Brotherton, Fox, Neely
- **Cited by:** 164 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/9589721

## How later opinions describe it (automated extraction)

- finding that an unequal distribution of marital property can sometimes be appropriate; however, remanding the case after concluding that the family law master and the circuit court failed to make sufficient findings to justify the conclusion that payment of the mortgage on the…
- applying a similar three-pronged standard of review to findings made by a family law master that are adopted by a circuit court

## Opinion text

NEELY, C.J.,
dissenting:
Double, Double toil and trouble;
Fire bum and cauldron bubble.
William ShaKespeaee, Maobeth act 4, sc. 1.
Once again the majority stirs the cauldron created by Whiting v. Whiting, 183 W.Va. 451 , 396 S.E.2d 413 (1990). A mere three months before the separation, Mrs. Burnside succumbed to Mr. Burnside’s pressure and used part of her inheritance to pay off the mortgage on the couple’s house. The family law master and the circuit court applied the Whiting gift presumption and Mr. Burnside was awarded a half-interest in the jointly titled house. Mrs. Burnside cried foul and foul it is!
Eye of newt, and toe of frog,
Wool of bat, and tongue of dog.
William Shakespeaee, MaoBeth act 4, sc. 1.
*276 No easy solution exists under Whiting . The majority, concerned about this woman who is “self-employed cleaning houses,” added some unique items to the mix because Whiting’s “coercion, duress, or deception” methods for rebutting the presumption of a gift did not work in this case. But wait, the family law master and the circuit court “failed to make a specific finding regarding Mrs. Burnside’s ‘intent’ to make a gift.” Op. at 270. 1 Careful on remand, because the cauldron of Whiting refuses to accept the “estate planning” or “adverse consequences” explanation. Op. at 271. The majority hints of an “unjust enrichment ... at the division state of equitable distribution” (Op. at 271 n. 15) loophole, which might be used to bring some equity to Whiting .
Out, damned spot! out, I say!
William ShaKespeabb, MaoBeth act 5, sc. 1.
Whiting undermines family security by refusing to recognize that married persons title property jointly to: (1) reassure a spouse of a marital commitment; (2) ease the management of the property; (3) protect property from creditors; and, (4) take advantage of federal estate tax laws. Mrs. Burnside used her inheritance to reassure Mr. Burnside of her commitment to their marriage. Mrs. Burnside should not be penalized for her efforts. An exception was crafted to protect Mrs. Charlton who entrusted the investment of her inheritance to Mr. Charlton. See Charlton v. Charlton, 186 W.Va. 670 , 418 S.E.2d 911 (1991). See Whiting, supra, 183 W.Va. at 464-65 , 396 S.E.2d at 426-27 (Neely, C.J., dissenting for a discussion of the incentives to title property jointly).
Who would have thought the old man to have
had so much blood in him1
William ShaKespeaee, MaoBeth act 5, sc. 1.
I dissent because the tragedy of Whiting continues. The bloodstains are not easily removed. The Mrs. Burnsides, Mrs. Carl-tons and others going through a divorce should not be required to seek a handcrafted Whiting loophole or exception. We could, of course, write the following sex-neutral syllabus point to accommodate the Charlton and Burnside gloss on Whiting :
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 unless the transfer is made to the phallically challenged spouse by the phallically advantaged spouse.
See, Syl. pt. 4, Whiting, supra.
. The facts of this case required the majority, after citing the standard of review, to apply a more stringent standard because Whiting requires the inequitable result reached below. There was no abuse of discretion, no clear error in determining the facts; there was only the logical and inequitable consequences of Whiting .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9589721. Public record. Not legal advice.