Submitted: January 11, 1994
Filed: February 18, 1994
Douglass T. Cool
Robert D. Campbell
Richardson & Richardson
Parkersburg, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
"'"In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syllabus Point 1, Marcum v. Browning,  W. Va. , 297 S.E.2d 204 [(1982)]; Syllabus, Waller v. Waller, 166 W. Va. 142, 272 S.E.2d 671 (1980); Syllabus Point 4, Belcher v. Belcher, 151 W. Va. 274, 151 S.E.2d 635 (1966); Syllabus Point 3, Taylor v. Taylor, 128 W. Va. 198, 36 S.E.2d 601 (1945). Syllabus, Fizer v. Fizer,  W. Va. , 310 S.E.2d 465 (1983).' Syllabus Point 3, Shank v. Shank, 182 W. Va. 271, 387 S.E.2d 325 (1989)." Syllabus Point 1, Wharton v. Wharton, 188 W. Va. 399, 424 S.E.2d 744 (1992).
Elsie L. Cool, the defendant below and appellant,
contends that the family law master (master) and the circuit court
erred when they refused to set aside a written separation
agreement. She contends that it should have been done when one of
the agreement's key provisions became unenforceable. This
provision was to the effect that the wife's aunt would take over
the marital home and assume the payment of two deeds of trust that
had been placed on the property. The wife agreed to be secondarily
liable on the payments and to save the husband harmless on the home
loans. The wife also was to be liable for the maintenance,
improvements, and utilities of the home.See footnote 1 Before the final hearing, the aunt decided she did not wish to purchase the
property. There was no testimony taken from the aunt as to why she
decided not to assume the property.
In July of 1989, the husband instituted divorce
proceedings in the Circuit Court of Wood County on grounds of
irreconcilable differences, which the wife admitted in her answer.
The parties entered into a written separation agreement on
September 27, 1991. The agreement provided for the distribution of
the marital assets, custody of the minor child, child support, and
waiver of alimony. The agreement also contained the aforementioned
language with regard to the marital home.
This agreement was entered into the record at a hearing
before the master on October 29, 1991. The wife was represented by
counsel and the husband appeared pro se. The parties appeared to
be satisfied with the agreement as no objections were made to its
admission.See footnote 2
As earlier noted, the aunt refused to accept the
conveyance of the property and the liability on the deeds of trust.
At the final hearing conducted on March 3, 1992, the wife, now
appearing pro se, objected to having the agreement approved. She
expressed her belief that because her aunt no longer wanted the
home, the entire agreement was void.
The evidence at this hearing indicates that the home has
a second deed of trust and that the amount of the debt might equal
the value of the house. This fact may have accounted for the
aunt's refusal to accept the property and the obligation to pay off
the deeds of trust. The evidence also revealed that the master
discussed the real estate problem at some length with the parties.
The wife and the parties' daughter, who was sixteen years old at
the time of the March, 1992, hearing, were living in the house.
The master concluded that in view of all the
circumstances, the wife and daughter should continue to live in the
house until the daughter turned eighteen, at which time the house
would be appraised and sold. The proceeds then would be used to
pay off the deeds of trust and the costs of the sale. If any
proceeds were left, the wife could be credited with the excess
mortgage payments she had made.See footnote 3 Any remaining funds would then be divided equally. In the interim, each party was to pay one-half of
the mortgage payments and one-half of the cost of any repairs.
After this hearing, the wife wrote a letter saying that
she wanted the agreement set aside due to the aunt's failure to
take the house. On review, the circuit court by order dated July
1, 1992, affirmed and adopted the recommended order of the master.
The wife's sole assignment of error is that the failure of her aunt
to purchase the parties' home as called for in the agreement
rendered it void.
Under W.Va. Code, 48-2-32(b) (1984), when the parties to
a divorce action have executed a separation agreement, marital
property is to be divided in accordance with the terms of the
agreement, unless the court finds:
"(1) That the agreement was obtained by fraud, duress, or other unconscionable conduct by one of the parties, or
"(2) That the parties, in the separation agreement, have not expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings, or
"(3) That the agreement, viewed in the context of the actual contributions of the respective parties to the net value of the marital property of the parties, is so inequitable as to defeat the purposes of this section, and such agreement was inequitable at the time the same was executed."
The agreement at issue in this case was written and
signed by both parties. It appeared to be entered into freely
without evidence of fraud, duress, or coercion. The problem arose
when the wife's aunt later refused to proceed under the provision
concerning the conveyance of the home. As earlier indicated, the
master did conduct an inquiry to determine what should be done with
regard to the house and its incumbent debt. There was no claim
advanced by the wife that any other provisions of the agreement
Basically, the master was confronted with a situation
where the property had two deeds of trust that caused it to have
little, if any, equity. The master determined that the only viable
solution was to allow the wife and the daughter to live in the
house until the daughter reached eighteen, with both parties
sharing the mortgage expense and repairs.See footnote 4 Upon the sale of the
house, the debt was to be discharged and the wife reimbursed for
additional mortgage expense paid. If there were any net proceeds,
they would be equally divided. This arrangement was confirmed by
the circuit court.
Neither at the final hearing nor on this appeal does the
wife advance any specific facts that make the remaining portion of
the agreement unfair. Nor are there any facts advanced that would
indicate the master or judge could have solved the house problem in
a more equitable manner. Consequently, we cannot state that the
circuit court's order was clearly wrong nor against the weight of
the evidence, which has been our traditional rule for reviewing
these matters on appeal. As reflected in Syllabus Point 1 of
Wharton v. Wharton, 188 W. Va. 399, 424 S.E.2d 744 (1992):
"'"In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syllabus Point 1, Marcum v. Browning,  W. Va. , 297 S.E.2d 204 [(1982)]; Syllabus, Waller v. Waller, 166 W. Va. 142, 272 S.E.2d 671 (1980); Syllabus Point 4, Belcher v. Belcher, 151 W. Va. 274, 151 S.E.2d 635 (1966); Syllabus Point 3, Taylor v. Taylor, 128 W. Va. 198, 36 S.E.2d 601 (1945). Syllabus, Fizer v. Fizer,  W. Va. , 310 S.E.2d 465 (1983).' Syllabus Point 3, Shank v. Shank, 182 W. Va. 271, 387 S.E.2d 325 (1989)."
For the foregoing reasons, we affirm the judgment of the
Circuit Court of Wood County.
Footnote: 1The precise language of this provision is:
"The husband and wife agree to
immediately deed all their right, title and
interest in the last marital home at 600
Grandview Street, Parkersburg, W. Va., to
Mary Jo Barker, the wife's Aunt. Mary Jo
Barker has agreed to assume all mortgage debt
on this property and the wife agrees to be
secondarily liable for any payments related
thereto, saving the husband harmless
therefrom, should Mary Jo Barker default in
any manner. The wife agrees to assist in any
manner in removing the husband from any
liability for the mortgage loan on this
property, but, if the lenders will not do so,
she still will be solely liable for the
mortgage payment on this property, in the
event of any default by her Aunt. The wife
will also be solely liable for any
maintenance, improvements and utilities at
Footnote: 2The wife asserts that she and her husband were under duress when the agreement was executed. However, the wife was represented by counsel when the agreement was negotiated. No allegations of fraud or duress were raised until after her aunt refused to accept liability on the mortgage.
Footnote: 3It appears that the wife had been making more than her
share of the mortgage payments. She worked for the Bureau of Public Debt in Parkersburg. Her husband was employed as a general laborer and had periods where he was unemployed.
Footnote: 4The wife at the March, 1992, hearing indicated that she was in the process of finding another house.