David J. Joel, Esq.|
Martinsburg, West Virginia
Attorney for Georgia Lee Boarman
Kirk H. Bottner, Esq.
Robert D. Aitcheson, Esq.|
Charles Town, West Virginia
Attorney for Appellant
Raymond T. Boarman
CHIEF JUSTICE McGRAW delivered the Opinion of the Court.
1. In reviewing the findings of fact and conclusions of law of a circuit
court supporting a civil contempt order, we apply a three-pronged standard of review. We
review the contempt order 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. Syl. pt 1, Carter v. Carter, 196 W. Va. 239,
470 S.E.2d 193 (1996).
2. The assignor of a judgment or decree by the assignment deprives
himself of all interest in and control over it, and transfers to the assignee the ownership of
the judgment and all remedies thereunder. Syl. pt. 1, Hines v. Fulton, 104 W. Va. 561, 140
S.E. 537 (1927).
3. A chose in action may be validly assigned. Syl. pt. 2, Hartman v.
Corpening, 116 W. Va. 31, 178 S.E. 430 (1935).
4. Whether a contempt is classified as civil or criminal does not depend
upon the act constituting such contempt because such act may provide the basis for either a
civil or criminal contempt action. Instead, whether a contempt is civil or criminal depends
upon the purpose to be served by imposing a sanction for the contempt and such purpose also
determines the type of sanction which is appropriate. Syl. pt. 1, State ex rel. Robinson v.
Michael, 166 W. Va. 660, 276 S.E.2d 812 (1981).
5. Although the remedy of contempt is available to a litigant in a divorce action, and although a litigant in a divorce action may assign judgments awarded during the divorce, a litigant may not assign relief by way of contempt to a private third party.
McGraw, Chief Justice:
Raymond T. Boarman appeals a decision of the lower court that required him
to pay a judgment to his ex-wife's former counsel or face incarceration for contempt. The
court had previously awarded attorney fees to appellee Georgia Lee Boarman, which were
reduced to a judgment. She later assigned this judgment to her former attorney, appellee
George Wilkes. After unsuccessful efforts to reach an agreement, appellee Wilkes moved
the court to hold Mr. Boarman in contempt. The lower court found Mr. Boarman to be in
contempt, but then suspended its order to allow this appeal. Because we find that a judgment
for attorney fees is assignable, but that relief by way of contempt is not assignable to a
private third party, we affirm in part, and reverse in part.
After several years of marriage
and several children, Georgia Lee Boarman filed for divorce from her husband
Raymond T. Boarman on January 29, 1990, sparking a long and acrimonious proceeding,
the embers of which still smoulder. This instant appeal is the third appeal
concerning the Boarmans' divorce.
(See footnote 1)
This appeal concerns actions taken by the lower court with regard to
an award of attorney fees granted to Mrs. Boarman.
Appellee Gilbert Wilkes, III, is the attorney who represented Mrs. Boarman in
the early years of this divorce dispute, and represented her in the first appeal before this
Court. By order dated August 5, 1994, the lower court made an award of attorney fees to
Mrs. Boarman in the amount of $8,766.60. On August 11, 1994, the court issued an abstract
of judgment, which Mrs. Boarman or her counsel recorded the same day. It is this sum, plus
accrued interest, that forms the basis for the instant dispute.
The divorce action outlasted the career of Mr. Wilkes, who retired from the practice of law in 1996, and Mrs. Boarman retained new counsel, Attorney David Joel. After several proceedings, Mr. Joel also moved for an award of attorney fees for the work he had performed on behalf of Mrs. Boarman, but the court denied Mr. Joel's motion. Finally, by court order dated June 24, 1997, the Boarmans' divorce became final.
The 1997 order contained, inter alia, a requirement that Mrs. Boarman convey her interest in the marital farm, and a provision concerning attorney fees, which stated: 7. The parties agree that each will pay their own attorney's fees in this matter. The order made no mention of the 1994 award, and subsequent judgment, granted in favor of Mrs. Boarman.
The Boarmans' harmony was
short-lived, because on October 7, 1998, counsel for Mrs. Boarman attempted
to attach Mr. Boarman's wages from his employer by means of a Suggestee Execution
issued by the circuit court. This proved unsuccessful, as Mr. Boarman had
retired. Subsequently, Mr. Boarman moved the court to hold Mrs. Boarman in
contempt for failing to convey her interest in the family farm.
(See footnote 2)
By August of 1999, neither
Mrs. Boarman nor Mr. Wilkes had received any of the $8,766.60 awarded in the
1994 order. Mrs. Boarman had moved to New York and apparently had little ability
to pay her former attorney. On August 6, 2000, in an effort to recover the
sums owed to him, Mr. Wilkes took an assignment from Mrs. Boarman of the 1994
judgment. Mr. Wilkes attempted to recover the judgment assigned to him by
filing a Petition for Rule to Show Cause against Mr. Boarman, alleging Mr.
Boarman was in contempt of the 1994 order awarding attorney fees. After some
delay, the court held a hearing on the matter on February 16, 2000.
By order dated May 5, 2000, the court found that the assignment to Mr. Wilkes
was valid and that the 1997 final order did not supersede or invalidate the 1994 order that
awarded the fees in question. The court went on to conclude that Mr. Boarman would be
found in civil contempt unless he promptly paid the 1994 judgment, plus interest, or made
other payment arrangements satisfactory to Mr. Wilkes. Mr. Boarman did not pay the sums
ordered, nor were the parties able to reach a payment agreement satisfactory to Mr. Wilkes.
However, before Mr. Boarman was to be incarcerated, the judge suspended his ruling,
allowing Mr. Boarman time to bring this appeal.
When reviewing an appeal of
a civil contempt order, we must look at the legal conclusions drawn by the
lower court, as well as the court's findings regarding the factual situation
giving rise to the allegation of contempt:
In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order 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.
Syl. pt 1, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996). Bearing this standard
in mind, we turn to the matter before us.
Neither party contests the basic presumption that a valid judgment may be
assigned to a third person. Our law supports this contention:
An assignment of a right is a manifestation of the assignor's intention to transfer such right, by virtue of which transfer the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance. Restatement (Second) of Contracts § 317(1) (1979). Unless required by statute or by contract, the assignor of a right may make an assignment by manifestation of intention to transfer, without any particular formality. Restatement (Second) of Contracts § 324 comment a (1979). This Court has recognized these concepts: No formal words are necessary to make an assignment of a chose in action. Anything showing an intent to assign on the one side, and an intent to receive on the other, will operate as an assignment. It [at common law] need not be in writing. Syl. pt. 5, Bentley v. Standard Fire Insurance Co., 40 W. Va. 729, 23 S.E. 584 (1895). An [a]ssignment of a chose is a sale like a sale of a chattel. There must be an intent to divest the seller of all right and title, and invest it in the assignee. Id. 40 W. Va. at 741, 23 S.E. at 587.
Smith v. Buege, 182 W. Va. 204, 210-11, 387 S.E.2d 109, 115-16 (1989) (alteration in original).
It is a well established principle that judgments are akin to property, and as
such, may be assigned to another party: An assignment may be made of a judgment, even
if the claim which is later reduced to a money judgment was unassignable, because a court
judgment is considered property which may be transferred, like other property, even prior to
payment of the judgment. 46 Am Jur 2d, Judgements § 477 (footnotes omitted).
Our own case law reflects a recognition that judgments may be assigned: The assignor of a judgment or decree by the assignment deprives himself of all interest in and control over it, and transfers to the assignee the ownership of the judgment and all remedies thereunder. Syl. pt. 1, Hines v. Fulton, 104 W. Va. 561, 140 S.E. 537 (1927). This Court has also stated, more succinctly: A chose in action may be validly assigned. Syl. pt. 2, Hartman v. Corpening, 116 W. Va. 31, 178 S.E. 430 (1935). (See footnote 3) Thus it is clear to us that ajudgment for attorney fees may be assigned, and that Mrs. Boarman had the ability to make a valid assignment of the judgment for attorney fees from the 1994 order.
However, Mr. Boarman claims that Mrs. Boarman could not have made a valid
assignment because she had traded away her right to those fees, before she made the
assignment of the judgment to Mr. Wilkes in 1999. Specifically, Mr. Boarman argues that
the language of the 1997 final order, quoted supra, shows that Mrs. Boarman had agreed to
pay all her attorney fees, including those fees awarded in the 1994 order. Therefore, his
argument goes, Mrs. Boarman had no right left to assign to Mr. Wilkes when she made the
assignment in 1999.
The lower court examined this matter, holding a hearing on February 16, 2000. After listening to arguments from both sides, the lower court made a factual determination that the final order of 1997 did not incorporate the judgment of attorney fees granted in 1994. As we noted, we accord great deference to the factual findings of a trial judge, whose
underlying factual findings are reviewed under a clearly erroneous standard Syl. pt 1, in
part, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996).
The lower court considered that the 1994 order awarding attorney fees had
been reduced to a judgment and recorded, and that the 1997 order had been produced after
lengthy legal proceedings involving a completely different set of attorneys. We do not feel
the lower court was clearly erroneous when it found that the June 24, 1997 final order did not
supersede or modify the August 5, 1994 order awarding attorney fees to Mrs. Boarman, and
accordingly, we affirm that aspect of the lower court's ruling.
Courts in West Virginia have long enjoyed contempt powers. The right of this court to punish for [contempt] is inherent and essential for its protection and existence. State ex rel. Robinson v. Michael, 166 W. Va. 660, 662 n.1, 276 S.E.2d 812, 841 n.1 (1981) (alternation in original) (quoting State ex rel. Mason v. Harper's Ferry Bridge Co., 16 W. Va. 864, 888 (1879)). There are two basic types of contempt, civil and criminal. We have attempted to differentiate the two:
Whether a contempt is classified as civil or criminal does not
depend upon the act constituting such contempt because such act
may provide the basis for either a civil or criminal contempt
action. Instead, whether a contempt is civil or criminal depends
upon the purpose to be served by imposing a sanction for the
contempt and such purpose also determines the type of sanction
which is appropriate.
Syl. pt. 1, State ex rel. Robinson v. Michael, 166 W. Va. 660, 276
S.E.2d 812 (1981).
(See footnote 5)
This is a domestic case, and our code has special requirements for domestic
cases. A circuit court's authority to enter a contempt ruling in a domestic
matter is governed by the provisions of West Virginia Code § 48-2-22
(1999). Czaja v. Czaja, 208 W. Va. 62, 73, 537 S.E.2d 908, 919
(2000). That code section provides, in pertinent part:
(a) Upon a verified petition for contempt, notice of hearing and hearing, if the petition alleges criminal contempt or the court informs the parties that the matter will be treated and tried as a criminal contempt, the matter shall be tried before a jury, unless the party charged with contempt shall knowingly and intelligently waive the right to a jury trial with the consent of the court and the other party. If the jury, or the court sitting without a jury, shall find the defendant in contempt for willfully failing to comply with an order of the court made pursuant to the provisions of this article, as charged in the petition, the court may find the person to be in criminal contempt and may commit such person to the county jail for a determinate period not to exceed six months.
(b) If trial is had under the provisions of subsection (a) of this
section and the court elects to treat a finding of criminal
contempt as a civil contempt, or if the petition alleges civil
contempt and the matter is not tried before a jury and the court
finds the defendant in contempt for willfully failing to comply
with an order of the court made pursuant to the provisions of
this article, and if the court further finds the person has the
ability to purge himself of contempt, the court shall afford the
contemnor a reasonable time and method whereby he may purge
himself of contempt. If the contemnor fails or refuses to purge
himself of contempt, the court may confine the contemnor to the
county jail for an indeterminate period not to exceed six months
or until such time as the contemnor has purged himself,
whichever shall first occur.
W. Va. Code § 48-2-22 (2000).
(See footnote 6)
With respect to the assignability of the right to seek contempt, first we examine
the logical underpinnings of allowing a divorcing party that right in the first place. We note
that our law treats an obligation to pay alimony or child support differently than an obligation
to pay an ordinary creditor. We have declared that alimony, support and maintenance are
obligations tinged with a public interest, Bailey v. Bailey, 127 W. Va. 826, 830, 35 S.E.2d
81, 83 (1945), and that, [a]n overwhelming weight of authority, however, makes a decree
for alimony more than a mere decree for the payment of money. Smith v. Smith, 81 W. Va.
761, 765, 95 S.E. 199, 201 (1918).
This Court went on to quote authority in the Smith case that explained why the
law places such importance on the payment of an alimony or support obligation, and why the
use of contempt is warranted when a party refuses to pay:
It has frequently been insisted that a decree for alimony is in fact a debt, and therefore payment should not be enforced by an attachment for contempt where the Constitution prohibits imprisonment for debt. But it is uniformly held, and such is the true doctrine, that the decree for alimony is an order of the court to the husband compelling him to support his wife by paying certain sums, and thus perform a public as well as a marital duty. Such decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of the court to one of the officers or to an attorney. The imprisonment is not alone to enforce the payment of money, but to punish the disobedience of the party; and the order is not, therefore, a debt, within the meaning of the Constitution.
Smith v. Smith, 81 W. Va. 761, 765-66, 95 S.E. 199, 201 (1918) (quoting Nelson, Div. & Sep.
§ 939). Accord, Hendershot v. Hendershot, 164 W. Va. 190, 263 S.E.2d 90 (1980); Simmons
v. Simmons, 175 W. Va. 3, 330 S.E.2d 325 (1985). Though the Court's language was limited
by the realities of the time, and today it may well be the wife who is required to pay alimony
to the husband or support to the child, the underlying logic of the Smith Court remains valid.
Though it is clear a dependent spouse or child may have the benefit of a
contempt proceeding in circuit court, it is also important that we understand the mechanics
of such a proceeding. The lower court treated this matter as a civil contempt action. We
have explained in Robinson, supra, that [t]he purpose of civil contempt is to benefit a
private party. The court is, in effect, lending its authority to the private party to vindicate and
assure the rights of the party. State ex rel. Robinson v. Michael, 166 W. Va. 660, 674, 276
S.E.2d 812, 820 (1981).
The basis for allowing a contempt proceeding in these cases is the special position occupied by the dependent spouse or child, and the recognition that it is important to society as a whole that the dependent spouse or child not suffer penury or destitution. However the mechanics of contempt proceedings require the use of the court's authority to vindicate the rights of the party who has been wronged. That power rests with the court, not the aggrieved party. (See footnote 7)
Thus we hold that, although the remedy of contempt is available to a litigant in a divorce action, and although a litigant in a divorce action may assign judgments awarded during the divorce, a litigant may not assign relief by way of contempt to a private third party. (See footnote 8) While a court may use its contempt powers to the extent allowed by law, a party cannot transfer those powers to a third person. However, third parties still have available to them the full complement of civil actions to recover money owed to them.
Thus, in the instant case, the 1994 judgment remains valid, as does Mrs.
Boarman's assignment of it to Mr. Wilkes. However, Mr. Wilkes does not enjoy, by way of
assignment, the same remedies that had been open to Mrs. Boarman.
installments. Goff v. Goff, 60 W. Va. 9, 22, 53 S.E. 769, 9 Ann.Cas. 1083;
Smith v. Smith, 81 W. Va. 761, 95 S.E. 199, 8 A.L.R. 1149. Such a vested right
may be assigned.
Harman v. Harman, 120 W. Va. 199, 200, 196 S.E. 361, 362 (1938).
The common law of England, so far as it is not repugnant to the
principles of the constitution of this state, shall continue in force
within the same, except in those respects wherein it was altered
by the general assembly of Virginia before the twentieth day of
June, eighteen hundred and sixty-three, or has been, or shall be,
altered by the Legislature of this state.
W. Va. Code § 2-1-1(1923).
Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.
West Virginia Constitution, Article VIII, Section 13.
The decision in Trecost, a per curiam decision,
relied upon the Court's earlier holding in a case involving a labor dispute,
which held: A party's private counsel is prohibited from replacing the
prosecuting attorney whose duty it is to prosecute criminal contempt charges
stemming from a civil suit; and it makes no difference whether such private
lawyer is appointed special prosecutor. Syl. pt. 2, State ex rel. Koppers Co.,
Inc. v. International Union of Oil, Chemical and Atomic Workers, 171 W. Va.
290, 298 S.E.2d 827 (1982).