Link to original WordPerfect Document here
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998 Term
_____________
No. 25205
_____________
PAMELA N . WOOTEN,
Plaintiff Below, Appellant,
V.
JOHN RAYMOND WOOTEN,
Defendant Below, Appellee.
___________________________________________________________________
Appeal from the Circuit Court of Wyoming County
Honorable John S. Hrko, Judge
Civil Action No. 96-D-275
REVERSED AND REMANDED
____________________________________________________________________
Submitted: November 12, 1998
Filed: November 20, 1998
Lena S.
Hill
Warren R.
McGraw
Pineville, West
Virginia Pineville,
West Virginia
Attorney for the
Appellant Attorney
for the Appellee
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In
reviewing challenges to findings made by a family law master that also were adopted by a
circuit court, a three-pronged standard of review is applied. Under these circumstances, a
final equitable distribution order is reviewed 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, Burnside
v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
2. "In
cases in which the supporting spouse has an income and earning capacity substantially
greater than that which the dependent spouse could realistically achieve under even the
best of circumstances, rehabilitative alimony may not be sufficient if the dependent
spouse is the primary caretaker of minor children and did not intend to join the work
force on a full time basis prior to the dissolution of the marriage." Syl. pt. 6, Wyant
v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990).
3. "An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors." Syl. pt. 3, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).
Per Curiam:
Pamela N. Wooten, appellant/plaintiff
(hereinafter "Ms. Wooten") appeals from a final decree entered by the Circuit
Court of Wyoming County granting her a divorce from John Raymond Wooten,
appellee/defendant (hereinafter "Mr. Wooten"). Ms. Wooten contends that the
trial court committed error by (1) awarding her rehabilitative alimony instead of
permanent alimony; and (2) in not equitably distributing the funds in her former spouse's
retirement plan. After a review of the parties' arguments, the record evidence, and the
pertinent authorities, we reverse the Circuit Court of Wyoming County.
I.
FACTUAL BACKGROUND
The parties were married on November 7,
1977. During the marriage two children were born.See
footnote 1 1 Mr. Wooten was employed as a coal miner, as well as engaging
in part- time self-employment.See footnote 2 2
Ms. Wooten was primarily a homemaker throughout the marriage. On October 11, 1996, Ms.
Wooten filed for divorce on the grounds of irreconcilable differences. The family law
master recommended child support in the amount of $715.00 and rehabilitative alimony in
the amount of $650.00 per month for seven years. Ms. Wooten filed a petition for
review with the circuit court objecting to rehabilitative alimony. Ms. Wooten requested
permanent alimony, in an amount greater than $650.00. The circuit court adopted the
recommendations of the family law master and entered a final divorce decree on December
19, 1997.
Subsequent to the final decree being
entered, Ms. Wooten filed a motion to set aside the divorce decree on the grounds that a
marital asset was not disposed of equitably. Ms. Wooten asserted, through excusable
neglect and inadvertence, no mention or distribution of Mr. Wooten's retirement plan was
made in the family law master's recommendation or the divorce decree. The circuit court
denied the motion regarding the alimony award. Additionally, the circuit court
denied Ms. Wooten's request for an equitable distribution of Mr. Wooten's retirement plan.
This appeal followed.
II.
STANDARD OF REVIEW
When a circuit court adopts the family law
master's recommendations this Court applies the three-pronged standard of review set forth
in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):
In reviewing
challenges to findings made by a family law master that also were adopted by a circuit
court, a three-pronged standard of review is applied. Under these circumstances, a final
equitable distribution order is reviewed 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. Accord Syl.
pt. 1, Porter v. Bego, 200 W.Va. 168, 488 S.E.2d 443 (1997).
III.
DISCUSSION
A. Alimony
Ms. Wooten argues that the circuit court
committed error in awarding her rehabilitative alimony instead of permanent alimony. This
Court has noted that "[t]he concept of 'rehabilitative alimony' generally connotes an
attempt to encourage a dependent spouse to become self-supporting by providing alimony for
a limited period of time during which gainful employment can be obtained." Syl. pt.
1, Molnar v. Molnar, 173 W. Va. 200, 314 S.E.2d 73 (1984). We held in syllabus
point 3 of Molnar:
There are three
broad inquiries that need to be considered in regard to rehabilitative alimony: (1)
whether in view of the length of the marriage and the age, health, and skills of the
dependent spouse, it should be granted; (2) if it is feasible, then the amount and
duration of rehabilitative alimony must be determined; and (3) consideration should be
given to continuing jurisdiction to reconsider the amount and duration of rehabilitative
alimony.
Ms. Wooten contends that rehabilitative
alimony is not appropriate in this case because of her age,See footnote 3 3 limited educationSee footnote 4 4 and lack of prior employment skills. Ms.
Wooten argues that it is simply not realistic to believe that, by obtaining more
education, she could maintain the standard of living to which she was accustomed during
the marriage. Also, Ms. Wooten asserts that the amount of rehabilitative alimony is
grossly inadequate to pay for a college education and meet her living expenses. In
contrast, Mr. Wooten tersely states that rehabilitative alimony was proper and that Ms.
Wooten is "a young woman, [and] has been treated fairly by the [c]ourt." This
Court disagrees with Mr. Wooten. We noted in syllabus point 6 of Wyant v. Wyant,
184 W.Va. 434, 400 S.E.2d 869 (1990) that:
In cases in which
the supporting spouse has an income and earning capacity substantially greater than that
which the dependent spouse could realistically achieve under even the best of
circumstances, rehabilitative alimony may not be sufficient if the dependent spouse is the
primary caretaker of minor children and did not intend to join the work force on a full
time basis prior to the dissolution of the
marriage.
Rehabilitative alimony is not appropriate in this case because of Ms. Wooten's age, lack of prior marketable work experience, and limited education. "Rehabilitative alimony has been utilized frequently where a younger dependent spouse entered marriage with marketable skills, which then deteriorated through nonuse, or the dependent spouse evidenced a capability for self-support, which could be developed through training or academic study." Molnar, 173 W.Va. at 203, 314 S.E.2d at 76. Mr. Wooten's annual income is $78,018.60. Assuming, arguendo, that Ms. Wooten obtained a higher education, it is not realistic to believe that, at age 50 years Ms. Wooten would be able to find employment in Wyoming County. On remand the circuit court should to determine, based upon Ms. Wooten's proven living expenses and other relevant factors, an appropriate award for permanent alimony.See footnote 5 5
B. Pension Fund
Ms. Wooten contends that Mr. Wooten's
pension plan is a marital asset. During one of the hearings before the family law master,
Ms. Wooten testified that she was seeking one-half of the pension. Neither the recommended
order of the family law master nor the final decree addressed or discussed the issue of
Mr. Wooten's pension. "An order directing a division of marital property in any way
other than equally must make specific reference to factors enumerated in § 48-2-32(c),
and the facts in the record that support application of those factors." Syl. pt. 3, Somerville
v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988). It was not until after the final
decree was entered that Ms. Wooten realized that the pension fund was not distributed as
marital property. Ms. Wooten filed a timely motion under Rule 60(b) of the West Virginia
Rules of Civil Procedure seeking relief from the decree on the grounds of excusable
neglect and inadvertence as a result of the failure to distribute the pension monies as a
marital asset. The circuit court denied the motion and ruled that Ms. Wooten had, in
essence, waived her claim to one-half of Mr. Wooten's pension. In so ruling, the circuit
court found that the issue of Mr. Wooten's pension was not raised in the petition for
review of the family law master's recommendation and that the final decree was actually
drafted by counsel for Ms. Wooten.
Once Ms. Wooten realized the inadequacy
of the recommended decision and the final divorce decree, she timely filed her Rule 60(b)
motion. The purpose of Rule 60(b) is to correct such mistakes, as the record is clear that
Mr. Wooten's pension was indeed a marital asset subject to equitable distribution.
This Court reviews a trial court's
ruling on a motion under Rule 60(b) for abuse of discretion. The purpose of Rule
60(b) is to correct such mistakes, as the record is clear that Mr. Wooten's pension was
indeed a marital asset subject to equitable distribution. See McDaniel v.
Kleiss, 198 W.Va. 282, 290, 480 S.E.2d 170, 178 (1996); Johnson v. Nedeff, 192
W.Va. 260, 266, 452 S.E.2d 63, 69 (1994). Therefore, this Court concludes that the circuit
court abused its discretion by failing to grant Ms. Wooten's Rule 60(b) motion. On remand,
the court shall equitably divide that portion of Ms. Wooten's pension which accrued during
the parties' marriage.
IV.
CONCLUSION
For the reasons set forth in this
opinion, the final divorce decree entered by the Circuit Court of Wyoming County is
reversed. This case is remanded for an award of permanent alimony properly
calculated and for the equitable distribution of Mr. Wooten's pension which was acquired
during the parties' marriage.
Reversed and Remanded.
Footnote: 1
1 One child is now emancipated.Footnote: 2
2 At the time of the divorce, Mr. Wooten's gross annual income was $78,018.60.Footnote: 3
3 Ms. Wooten was forty-nine at the time of the divorce.Footnote: 4
4 Ms. Wooten has only a high school diploma.Footnote: 5
5 We agree with Ms. Wooten that, based upon Mr. Wooten's income, the amount of permanent alimony should be significantly greater than the rehabilitative alimony award of $650.00 per month. West Virginia Code § 48-2-16(b) sets forth factors to be utilized in the determination of alimony and provides, in pertinent part, as follows: