Jolyon W. McCamic
McCamic & McCamic
Wheeling, West Virginia
Attorney for the Appellee,
Camilla M. Boyle
Herbert B. Conner
Dickie, McCamey & Chilcote
Ray B. Byrd
Schrader, Recht, Byrd, Companion & Gurley
Wheeling, West Virginia
Attorneys for the Appellee,
Charles E. Bradley
Michael J. Ferrell
Charlotte A. Hoffman
Jenkins, Fenstermaker, Krieger,
Kayes, Farrell & Agee
Huntington, West Virginia
Charles J. Kaiser, Jr.
Ronald M. Musser
Phillips, Gardill, Kaiser & Altmeyer
Wheeling, West Virginia
Attorney for the Appellee,
Robert E. Boyle
James M. Haviland
Crandall, Pyles & Haviland
Charleston, West Virginia
Attorneys for Amicus,
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER, sitting by temporary assignment, deeming himself disqualified did not participate in the consideration or decision of this case.
JUDGE FOX and JUDGE BERGER sitting by temporary assignment.
1. Rule 24 of the West Virginia Rules of Civil Procedure
does not preclude third party intervention in divorce proceedings.
2. A third party seeking intervention in a divorce
proceeding for the purpose of protecting a property interest
assumes the burden of demonstrating an interest which will outweigh
the substantial privacy interests of the divorcing parties.
3. When considering a motion for intervention in divorce
proceedings pursuant to Rule 24 of the West Virginia Rules of Civil
Procedure, a circuit court must balance the substantial privacy
interests of the divorcing parties against considerations relating
to the interest asserted by the potential intervenor.
4. When considering a motion for intervention by a third
party in divorce proceedings pursuant to Rule 24 of the West
Virginia Rules of Civil Procedure, the trial court may consider the
adequacy of other remedies available to the applicant.
5. The paramount goal of a divorce proceeding is a just and equitable resolution of the interests and rights of the divorcing spouses. The asserted interests of third parties in marital property are best resolved in legal actions separate and apart from the divorce proceeding.
Fox, Judge:See footnote 1
This appeal from the Circuit Court of Ohio County, West
Virginia, brings before this Court for the first time the issue of
whether a third party may intervene in a divorce proceeding.
Pursuant to Rule 24(a)(2) of the West Virginia Rules of
Civil Procedure,See footnote 2 the appellant, Charles E. Bradley, made
application to the circuit court seeking permission to intervene in
the divorce proceeding of Robert E. Boyle and Camilla M. Boyle.
The circuit court denied the appellant's application.
Camilla Boyle and Robert Boyle commenced divorce
proceedings on 5 November 1987. In that action, Camilla Boyle sought, inter alia, equitable distribution of the marital assets,
including Robert Boyle's shares of Oralco, Inc. (Oralco), which had
been acquired during the marriage. On 15 December 1992, the
circuit court awarded her approximately twelve percent, or 29,273
shares, of Oralco stock. Camilla Boyle appealed to this Court,
requesting one-half of the 241,935 shares of issued and outstanding
stock owned by Mr. Boyle.
On 17 December 1992, prior to this Court issuing its
opinion, Camilla Boyle entered into an option agreement with
Charles Bradley. The agreement gave Charles Bradley the right to
purchase any and all shares of Oralco stock Camilla Boyle might
receive as a result of the divorce proceeding. Mr. Bradley owned
a large number of Oralco shares and sought additional shares for
the purpose of gaining a majority interest in Oralco, and control
of the company. The agreement states:
. . . [T]he Optionor [Mrs. Boyle] may acquire shares of the Common Stock of the Company owned by her husband R. Emmett Boyle pursuant to a final court order relating to the dissolution of their marriage . . . .
[T]he Optionor hereby irrevocably gives and
grants to the Optionee [Mr. Bradley] the
exclusive right and option (the "Option") to
purchase all right, title and interest to the
Shares, and any distributions and dividends
therefrom . . . .
On 18 February 1994, this Court issued its opinion in
Camilla Boyle's appeal. This Court reversed the circuit court,
stating ". . . the circuit court abused its discretion by failing to award the appellant one-half of the marital stock. Under the
circumstances, we find that it is only fair that the appellant
receive her statutory share or one-half of the marital stock
equalling 120,967.5 shares of stock." Boyle v. Boyle, 190 W.Va.
655, 661, 441 S.E.2d 376, 382 (1994) (hereinafter Boyle I).
Upon the resumption of the proceedings in the circuit
court, Charles Bradley moved on 24 March 1994 to intervene in the
divorce proceedings pursuant to W.Va.R.Civ.P. 24(a). He asked the
circuit court to allow him to intervene to protect his rights under
the option agreement. The circuit court heard arguments of counsel
and reviewed the per curiam opinion previously issued by this Court
in Boyle I.
On 31 March 1994, the circuit court entered its "Findings
and Divorce Decree." It noted therein the existence of an
"Exchange Agreement," dated 19 February 1993, between Mr. Boyle and
Elmwood Acquisition Corporation II (EAC II), wherein Mr. Boyle had
exchanged his Oralco shares of stock for a like number of shares of
EAC II stock. Further, the circuit court noted that Mr. Boyle and
Ms. Boyle entered into a "Stipulation as to Marital Stock" on the
same date (19 February 1993), providing that if the original
divorce order was reversed (as happened subsequently in Boyle I),
the marital stock "would consist of the Transferred Shares and the
EAC II Shares." As a result of these two agreements, the circuit
court concluded that Mr. Boyle held no Oralco shares of stock and that no fraud had been perpetrated upon Ms. Boyle. It further
concluded that the mandate of this Court as set forth in Boyle I,
i.e., that Ms. Boyle "receive her statutory share or one-half of
the marital stock," could best be achieved by awarding her one-half
of all the EAC II shares held by Mr. Boyle, with the understanding
that said shares would then be immediately purchased from her by
Oralco for $14,400,000.00, a sum which she testified represented
the fair value of her interest. This was so ordered.
In a separate order, also dated 31 March 1994, the
circuit court denied the appellant's motion to intervene. In
support of this ruling, the circuit court opined, generally, that
the intervenor's interests were adequately protected by existing
parties, specifically Ms. Boyle; that the privacy interests in
divorce proceedings must be weighed against rights or potential
rights of others; that the intervenor possessed only a future
interest or right, contingent at best; that the intervenor's rights
were remote and would unnecessarily complicate the pending matter;
and that the intervenor had other adequate legal remedies available
to obtain the relief sought by intervention.
The appellant argues the circuit court did not carry out
this Court's mandate regarding equitable distribution as outlined
in Boyle I and, as a result, he has been deprived of his
contractual right to obtain Ms. Boyle's stock under the option
agreement. We find no merit in this contention. To the contrary, we believe the circuit court, through the utilization of both
imagination and common sense, was able to draw a fair and just
result from a very complex and convoluted financial morass.See footnote 3
Further, said result was certainly in substantial compliance with
the mandate of Boyle I, inasmuch as it provided Ms. Boyle with the
equivalent of the one-half of the marital stock which she sought.
Of course, it is not insignificant that Ms. Boyle, the recipient of
the Boyle I mandate, was satisfied with the disposition framed by
the circuit court, to the extent that she is participating in
opposition to the appeal herein. Accordingly, we find the circuit
court did not err in its ruling with regard to equitable
Next, we turn our attention to the denial of the
appellant's motion to intervene in this divorce proceeding. Rule
24 of the West Virginia Rules of Civil Procedure (Rule 24) does not
preclude third party intervention in divorce proceedings. In the
introductory sentence to section (a) Intervention of right, the
rule simply states, "Upon timely application anyone shall be
permitted to intervene in an action[.]" The rule continues, and in
subsection (a)(2) qualifies the right of intervention by stating
intervention shall be permitted "when the applicant claims an
interest relating to the property or transaction which is the
subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability
to protect that interest, unless the applicant's interest is
adequately represented by existing parties." Thus, the rule
establishes a qualified right of intervention. In divorce
proceedings, we believe the right of intervention is further
qualified by the privacy interests of the divorcing parties. A
third party seeking intervention in a divorce proceeding for the
purpose of protecting a property interest assumes the burden of
demonstrating an interest which will outweigh the substantial
privacy interests of the divorcing parties. Accordingly, when
considering a motion for intervention in divorce proceedings
pursuant to W.Va.R.Civ.P. 24, a circuit court must balance the
substantial privacy interests of the divorcing parties against
considerations relating to the interest asserted by the potential
intervenor. The circuit court did so herein.
In this case, two additional considerations argue against
intervention by the appellant: (1) the inchoate nature of the
appellant's interest; and (2) the availability to the appellant of
other adequate legal remedies to protect his interest.
As previously stated, the option agreement between
Camilla M. Boyle and Charles E. Bradley granted Bradley the right
to purchase any and all shares of Oralco stock Ms. Boyle might
receive as a distribution of marital property in the divorce
proceedings. Thus, by the agreement's terms, the appellant's option rights hinged on the contingency of Ms. Boyle receiving
Oralco stock as a result of the divorce proceedings. When all was
said and done and the final order entered in the divorce, Ms. Boyle
received no Oralco stock.See footnote 4 She received EAC II stock because Mr.
Boyle had converted his Oralco stock to EAC II stock. Therefore,
by reason of the stock conversion, the option agreement contingency
never occurred. At the time of his intervention motion, the appellant obviously had no present interest he could protect by
intervening in the divorce proceedings. Had intervention been
granted, the circuit court would have been powerless to fashion a
remedy amounting to specific performance of the option agreement,
because the necessary res, the Oralco stock, was no longer
possessed by Mr. Boyle.
Finally, when considering a motion for intervention in
divorce proceedings pursuant to W.Va.R.Civ.P. 24, the trial court
may consider the adequacy of other remedies available to the
applicant. In this regard, the record reflects two pending federal
court actions concerning the option agreement at issue here. In
one action initiated by Camilla Boyle in the Circuit Court of Ohio
County and subsequently removed by the appellant to the Federal
District Court for the Northern District of West Virginia, Camilla
Boyle seeks a declaratory judgment that she has not breached the
option agreement. The other suit, also in the Federal District
Court for the Northern District of West Virginia, is an action for
breach of contract initiated by the appellant. In this action, the
appellant seeks a recision of the transfer of the EAC II shares to
Camilla Boyle. He has also requested the court to enter an order
transferring to Camilla Boyle 120,975.5 shares of Oralco stock, a
number of shares equal to one-half the Oralco shares possessed by
Mr. Boyle prior to Ms. Boyle's first award of 29,273 shares and the
EAC II stock conversion. We find the appellant has ample and adequate means to protect his rights under the option agreement in
the pending federal cases.
The paramount goal in any divorce proceeding is a just
and equitable resolution of the interests and rights of the
divorcing spouses. The asserted interests of third parties in
marital property are best resolved in legal actions separate and
apart from divorce proceedings. Here the circuit court
acknowledged the privacy interests inherent in divorce proceedings;
determined that the intervenor's interest was contingent, at best;
and concluded that other adequate remedies were available to the
intervenor. Thereafter, it appropriately and properly denied the
motion to intervene and tended to its primary responsibility,
concluding the divorce in a manner equitable as to the divorcing
parties. We find no error.
The appellant and the appellee raise and discuss numerous
other issues arising from the tangled factual and legal web spun by
these long lived proceedings. Some of these additional issues are
immaterial, and none of the issues are necessary to a correct and
appropriate disposition of this proceeding. For these reasons, we
decline to address them.
We affirm the final order of the circuit court.
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court.
Footnote: 2 Rule 24(a)(2) of the West Virginia Rules of Civil Procedure states:
(a) Intervention of right. -- Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Footnote: 3 Suffice it to say, our brief recitation of the circuit court's ruling with regard to this issue does not do it justice.
Footnote: 4 To provide clarification for the reader, we offer the following brief summary of events as they occurred in this case.
Divorce proceedings between Ms. Boyle and Mr. Boyle were
initiated in Ohio County on 5 November 1987. In that action, Ms.
Boyle sought equitable distribution of the marital assets,
including the Oralco, Inc., shares which had been acquired during
the marriage. On 15 December 1992, the circuit court entered its
Memorandum of Opinion, which, inter alia, granted the parties a
divorce and awarded Ms. Boyle twelve percent of the issued and
outstanding Oralco stock. Ms. Boyle appealed that decision to this
On 17 December 1992, Ms. Boyle entered into the option
agreement with Mr. Bradley. On 18 February 1994, this Court filed
its opinion, which reversed the prior circuit court order and held,
in relevant part, Ms. Boyle should receive one-half of the marital
stock from Mr. Boyle. On 21 March 1994, the opinion became final,
and this Court filed its mandate, which "set aside, reversed and
annulled" the prior circuit court order.
On 22 March 1994, Ms. Boyle applied to the circuit court
for an order directing the secretary of Oralco to transfer 91,694.5
shares of Oralco stock to her. Mr. Boyle opposed the application
on the ground that, pursuant to the stipulation, the marital stock
was EAC II stock, not Oralco stock. The next day the judge held a
hearing on the application.
On 24 March 1994, Mr. Bradley moved to intervene in the
divorce proceedings. This motion was denied in the circuit court's
31 March 1994 order.
On 31 March 1994, the circuit court, in its Findings and Divorce Decree, awarded Camilla Boyle 120,967.5 EAC II shares. Oralco was thereafter permitted to buy these shares for $14,400,000.00.