Ward D. Stone, Jr., Esq. Delby B. Pool, Esq.
Spilman, Thomas & Battle Clarksburg, West Virginia
Morgantown, West Virginia Attorney for Appellee
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
2. A family law master or circuit court may not attribute income to a parent who is unemployed or under-employed because the parent has chosen to devote time to care for children (including those who are above pre-school age or those to whom the parties do not owe a joint legal responsibility for support) under circumstances in which a reasonable, similarly-situated parent would have devoted time to care for the children had the family remained intact or, in cases involving a non-marital birth, had a household been formed. Syllabus Point 6, State of West Virginia ex rel. West Virginia Department of Health and Human Resources, Bureau of Child Support Enforcement v. Gibson, 207 W.Va. 594, 535 S.E.2d 193 (2000).
3. When a family law master or a circuit court, in the exercise of
discretion, chooses to attribute income to a parent who is providing care to children, there
must be a full explanation on the record why it is in the best interests of the children that the
parent be employed rather than providing care to the children. Syllabus Point 7, State of West
Virginia ex rel. West Virginia Department of Health and Human Resources, Bureau of Child
Support Enforcement v. Gibson, 207 W.Va. 594, 535 S.E.2d 193 (2000).
4. In divorce actions, an award of attorney's fees rests initially within the
sound discretion of the family law master and should not be disturbed on appeal absent an
abuse of discretion. In determining whether to award attorney's fees, the family law master
should consider a wide array of factors including the party's ability to pay his or her own fee,
the beneficial results obtained by the attorney, the parties' respective financial conditions,
the effect of the attorney's fees on each party's standard of living, the degree of fault of either
party making the divorce action necessary, and the reasonableness of the attorney's fee
request. Syllabus Point 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).
Per Curiam:
The appellant Victoria Howes, formerly Victoria Josimovich, appeals from a
Randolph County Circuit Court's divorce order that adopted a family law master's
recommendations. We reverse and remand on the issues of equitable distribution, alimony,
and attorney's fees and costs.
The appellant's work history after Dr. Josimovich graduated from medical school was limited.
In February of 1994, she stopped working outside the home following the birth of their second child. (See footnote 1) The parties separated when Dr. Josimovich left the marital residence in August of 1999. The appellant filed for divorce in March 2000. During the last three years of their marriage, Dr. Josimovich had an annual income of $149,569.00 in 1998, $195,679.00 in 1999, and $199,943.00 in 2000.
After the appellant filed the divorce action, the parties attended mediation and
agreed to a parenting plan. On May 31, 2001, the family law master (FLM)
(See footnote 2)
held a final
hearing on the divorce action and on June 27, 2001, the FLM issued a recommended order.
(See footnote 3)
The recommended order found that the appellee's average monthly income was
$14,719.00, and the FLM attributed monthly income to the appellant in the amount of
$2,278.50. The FLM recommended that the appellee pay monthly child support of
$1,523.88. Because the parties had accumulated more debts than assets, each party was
allocated a total net deficit of $10,860.47, and each was ordered to pay one-half of this
marital debt. The FLM further recommended that the appellee pay $2,900.00 per month in
alimony for one year, and that the appellee pay one-half of the appellant's attorney's fees and
costs accumulated through the hearing completed on May 31, 2001.
On August 29, 2001, the circuit court entered an order adopting the FLM's
recommended order. The circuit court's order granted the parties a divorce on the grounds
of irreconcilable differences and confirmed the FLM's other recommendations. The
appellant appeals to this Court from the circuit court's order.
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.
Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
The appellant petitions this Court, arguing that the circuit court and the FLM erred in attributing income to her, and because of that error, further erred in calculating the award of child support and alimony.
A family law master or circuit court may not attribute income
to a parent who is unemployed or under-employed because the
parent has chosen to devote time to care for children (including
those who are above pre-school age or those to whom the parties
do not owe a joint legal responsibility for support) under
circumstances in which a reasonable, similarly-situated parent
would have devoted time to care for the children had the family
remained intact or, in cases involving a non-marital birth, had a
household been formed.
Syllabus Point 6, State of West Virginia ex rel. West Virginia Department of Health and
Human Resources, Bureau of Child Support Enforcement v. Gibson, 207 W.Va. 594, 535
S.E.2d 193 (2000).
This Court said further in Syllabus Point 7 of Gibson that:
When a family law master or a circuit court, in the exercise of
discretion, chooses to attribute income to a parent who is
providing care to children, there must be a full explanation on
the record why it is in the best interests of the children that the
parent be employed rather than providing care to the children.
The FLM attributed income of $2,278.00 per month to the appellant. In
attributing income to her, the FLM relied on the testimony of the director of personnel at a
local hospital as to what a registered nurse could earn. As the spouse of a medical doctor
earning more than $14,000.00 per month, a reasonable, similarly-situated spouse would likely
have remained in the home and devoted her time to the care of the children. Further, there
is testimony that the parties had planned for the appellant to stay at home and care for their
children once the appellee had become a physician. The appellant had not worked outside
the home on a full-time basis since early 1994.
In attributing income to the appellant, the FLM did not explain why it was in
the best interests of the children for the appellant to return to work; the FLM, thereby, ran
afoul of the mandate in Syllabus Point 7 of Gibson requiring a FLM to provide a full
explanation on the record why it is in the best interests of the children that the parent be
employed rather than providing care to the children. Therefore, based on a review of the
record, we conclude that the FLM and the circuit court erred in attributing income to the
appellant. We further find that because the circuit court erred in adopting the FLM's
recommendation attributing income to the appellant, it also erred in calculating child support
and alimony.
(See footnote 4)
fn. 30, 460 S.E.2d 264, 276, fn. 30 (1995). An award of alimony by its very nature, as well
as by the guidelines established by the Legislature, does entail the examination of various
financial questions. As has been indicated above, one of those factors is the income-earning
ability of the parties. W.Va. Code, 48-2-16(b)(4). Driver v. Driver, 208 W.Va. 686, 689,
542 S.E.2d 849, 852 (2000) (per curiam).
The appellant further alleges that the circuit court erred in not awarding her
permanent alimony. W.Va. Code, 48-2-16(b) [1999] lists twenty factors that family law
masters must consider in calculating alimony awards.
(See footnote 5)
Although W.Va. Code, 48-2-16
[1999] lists twenty factors, a family law master needs only to make specific findings for those
factors that are applicable to the case at hand. Burnside v. Burnside, 194 W.Va. 263, 275,
The income earning abilities of the parties in the instant case are quite
disparate. The appellee earned approximately $14,000.00 a month when the FLM attributed
the appellant approximately $2,300.00 a month. Having considered the factors listed in
W.Va. Code, 48-2-16(b) [1999], this Court finds that the FLM, in its recommendation, and
the circuit court abused their discretion in not awarding the appellant permanent alimony in
the amount of at least $2,900.00 per month. We therefore reverse the circuit court's order
and direct the lower court to consider the factors discussed in W.Va. Code, 48-2-16(b)
[1999], and to award the appellant at least $2,900.00 in permanent alimony retroactive to June 1, 2002, the date she received the last payment of temporary alimony.
Finally, the appellant asserts that the circuit court erred in requiring the
appellee to pay only one-half of the appellant's attorney's fees and costs through the May 31,
2001 hearing. Pursuant to W.Va. Code, 48-2-13(a)(6)(A) [1993],
(See footnote 6)
a court may compel either
party to pay the other party's attorney's fees and court costs, and, if an appeal is taken, the
court can further award the payment of appeal fees and costs.
In divorce actions, an award of attorney's fees rests initially
within the sound discretion of the family law master and should
not be disturbed on appeal absent an abuse of discretion. In
determining whether to award attorney's fees, the family law
master should consider a wide array of factors including the
party's ability to pay his or her own fee, the beneficial results
obtained by the attorney, the parties' respective financial
conditions, the effect of the attorney's fees on each party's
standard of living, the degree of fault of either party making the
divorce action necessary, and the reasonableness of the
attorney's fee request.
Syllabus Point 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).
Given the unequal incomes of the parties, their potential earning power, and
the lack of assets awarded from the equitable distribution, we find that the circuit court
abused its discretion in not ordering the appellee to pay all of the marital debts, the
appellant's reasonable attorney's fees and costs, including the attorney's fees and cost for the
appeal to this Court.