William L. Frame, Esq.
Delby B. Pool, Esq.
The Opinion of the Court was delivered PER CURIAM.
Beginning in December of 2000 and continuing through the final hearing in January of 2001,
Timothy's earnings from the scrap metal business dropped to $48,000.00 per year.
Although it is unclear from the record as to the dates that pleadings and
subsequent orders were entered, it is clear that after several hearings, the FLM made findings
of facts, conclusions of law, and entered a recommended final decree on June 18, 2001. In
the order, the FLM recommended that the parties be divorced on the grounds of
irreconcilable differences and that their assets and debts be equitably distributed. The FLM
proposed that the appellee receive marital property with a net value of $236,703.15 and that
the appellant receive marital property with a net value of $458,629.70, including commercial
property holdings that earned more than $25,000.00 a year in rentals. To achieve equitable
distribution, the FLM recommended that the appellant pay the appellee $110,963.26. The
FLM also awarded the appellee $500.00 a month in rehabilitative alimony for five years and
her attorney fees and costs. The FLM further ordered that the appellant pay child support of
$278.00 per month and that custodial and parenting responsibilities be assigned according
to the plan proposed by appellee.
The appellant complains that
he did not receive appropriate credit for payments that he made during the pendency
of this matter. W.Va. Code, 48-2-13(a)(8) [1999]
(See footnote 2) provides
discretion to the FLM in how to designate payments made to third parties during
the pendency of the case. Under W.Va. Code, 48-2-13(a)(8) [1999], absent
a designation by the FLM, payments made to third parties, during the pendency
of the divorce action, are deemed to be alimony. Therefore, having reviewed
the record, we find that the FLM did not err in the manner in which the appellant
was credited for payments that the appellant made during the pendency of the
matter.
Wilson, Frame, Benninger & Metheney Clarksburg, West Virginia
Morgantown, West Virginia
Attorney for Appellant
Attorney for Appellee
During their marriage, Timothy and Brenda had two children. After their
second child was born, Brenda quit working outside the home while Timothy continued to
work as an electrician and also ran the scrap metal business.
The parties separated in December of 1999. At the time of their separation,
Brenda was a homemaker and not otherwise employed. Timothy managed the parties'
jointly-owned scrap metal business and earned $67,080.00 from the business in 1999.
On December 21, 1999, Brenda
filed for divorce and a temporary hearing was held on May 25, 2000. At the
hearing, Family Law Master (FLM)
(See footnote 1) David P. Born offered Timothy two pendente
lite options. Timothy could either pay child support of $250.00 twice
a month plus the household bills, or he could pay alimony in the amount of
$1,700.00 per month. Timothy chose the former option and the FLM incorporated
the agreed-to obligation into a pendente lite order.
The pendente lite order was entered on June 9, 2000. In the order, the FLM
ordered Timothy to make payments on all of the household bills including the house
payment, car payment, insurance, utilities, and the uninsured medical expenses of Brenda
Gooch and the children. Additionally, he was ordered to pay $250.00 twice monthly as child
support for the couple's two children.
On March 15, 2001, Timothy filed a motion to modify the pendente lite order
because the parties' son had begun to reside with Timothy. Following a May 18, 2001
hearing, the FLM entered a Supplemental Temporary Order on June 14, 2001, ordering the
appellant to pay $278.00 per month in child support.
The appellant filed a petition for review of the FLM's recommended order.
The circuit court denied the relief requested by the appellant, adopted the FLM's
recommended final order, and issued a final decree. It is the circuit court's final decree that
this Court now addresses.
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).
With regard to alimony, this Court has stated that:
Questions relating to alimony and to the maintenance and
custody of the children are within the sound discretion of the
court and its action with respect to such matters will not be
disturbed on appeal unless it clearly appears that such discretion
has been abused.
Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).
In the instant case, the appellant argues that the circuit court erred in the
distribution of assets because the FLM and the circuit court failed to credit the appellant for
the payments that he made while the case was pending and because the FLM and the circuit
court erred in valuing the business' home office furniture and in mistakenly labeling an
$8,500.00 personal loan as a business debt. In addition, the appellee complains that he is
unable to pay the $110,963.26 ordered to satisfy the equitable distribution of marital assets.
The appellant also argues that the circuit court erred in failing to set aside the
family law master's recommendation regarding the valuation of company-owned home office
furniture and an $8,500.00 loan. Based on our standard of review, we cannot find that the
circuit court was clearly erroneous in its valuing of the disputed home office furniture or in
its allocation of the $8,500.00 loan as a business debt. Therefore, having reviewed the circuit court's findings and conclusions, we find that the circuit court did not
abuse its discretion in dividing the marital assets and debts. (See footnote 3)
Next, the appellant argues that the circuit court erred in awarding the appellee
rehabilitative alimony. The 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. Syllabus
Point 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984). In Syllabus Point 3 of
Molnar, we indicated that:
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.
In the present case, the appellee
expressed a desire to become self-sufficient and capable of supporting herself
and her children. To achieve such independence, the appellee plans to attend
college and obtain a four-year degree. The FLM considered the
appellee's desire to attend college, her age, relative skill level, and the length of the marriage.
The FLM then granted the appellee rehabilitative alimony for five years. Having reviewed
the record, we find that the court did not abuse its discretion in awarding the appellee
rehabilitative alimony.
Finally, the appellant argues that the circuit court erred in adopting the
parenting plan known as the Supplement Memorandum of Understanding and that the
FLM and the circuit court erred in not adopting Timothy's proposed parenting plan. The
parties unsuccessfully attempted mediation on parenting; nevertheless, the parties' mediator
issued an unsigned Memorandum of Understanding and a Supplemental Memorandum
of Understanding.
The Supplemental Memorandum of Understanding formed the basis of the
FLM's recommended parenting plan. Specifically, the plan recommended by the FLM and
adopted by the circuit court provides for a split custody arrangement in which the appellee
would be the primary custodian of their daughter, and the appellant would be the primary
custodian of their son. The parties would alternate weekday evenings with the children so
the children would have time together during the week, and the parties would alternate
weekend custody so that the children could be together on the weekends.
Having reviewed the Supplemental Memorandum of Understanding and its
detailed plans for sharing custody of the children, we find that the circuit court did not abuse
its discretion in adopting the FLM's recommended parenting plan.
Affirmed.
Footnote: 1
Footnote: 2
The court may require payments to third parties. . . . [w]hen
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are temporary
alimony, temporary child support, a partial distribution of
martial property or an allocation of marital debt: Provided, That
if the court does not set forth in the order that a portion of such
payments is to be deemed temporary child support, then all such
payments made pursuant to this subdivision shall be deemed to
be temporary alimony[.]
Footnote: 3