James M. Pierson                                                James T. Cooper
Pierson Legal Service                                         Cooper & Glass
Charleston, West Virginia                                   Charleston, West Virginia
Attorney for the Appellee                                    Attorney for the Appellant

The Opinion of the Court was delivered PER CURIAM.

CHIEF JUSTICE DAVIS and JUSTICE MAYNARD concur in part, dissent in part, and reserve the right to file separate opinions.

     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. “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).

     3. “By its terms, W.Va.Code § 48-2-16 [1976] requires a circuit court to consider the financial needs of the parties, their incomes and income earning abilities and their estates and the income produced by their estates in determining the amount of alimony to be awarded in a modification proceeding.” Syl. Pt. 2, Yanero v. Yanero, 171 W.Va. 88, 297 S.E.2d 863 (1982).

    4. “W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship.” Syl. Pt. 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).”

    5. “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.” Syl. Pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).    

Per Curiam:

    This is an appeal by Pamella L. Drennen (hereinafter “Appellant”) from a divorce order of the Circuit Court of Kanawha County failing to provide the Appellant with an alimony award. The Appellant also challenges the lower court's distribution of certain credits to her former husband, Duane Drennen (hereinafter “Appellee”) in equitable distribution, the granting of ownership of the marital home to the Appellee, and the alleged failure of the lower court to provide the Appellant with adequate attorney's fees. Upon thorough review of the briefs, record, and arguments of the parties, we find that the lower court committed error in failing to grant the Appellant an alimony award. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

    The evidence adduced at the hearings indicates that the Appellant is forty-seven years of age and has earned a high school diploma. Although she was employed as a secretary during the early part of the marriage, she discontinued that employment on June 1, 1995, due to health problems. Evidence indicated that the sexual relationship between the parties was greatly suppressed subsequent to the Appellant's vaginal cuff surgery in the early 1990's and that the parties had not had frequent sexual relations thereafter.   (See footnote 2)  since February 14, 1991. Evidence also indicated that the Appellant rarely attended social or family functions with the Appellee during the last several years of the relationship. In April 2000, she received a favorable ruling from the Social Security Administration on her application for disability benefits, based upon “medically determinable severe impairments: major depression, anxiety with panic attacks and irritable bowel syndrome.”   (See footnote 3)  She received a lump sum award for back social security benefits in the amount of $19,016.23, and a net monthly social security benefit of $881.00,   (See footnote 4)  which is her sole source of income. The Appellant contends that her living expenses are $1,710 per month.   (See footnote 5) 

    The Appellee has been employed as a deputy sheriff in Kanawha County since 1970, and he has earned both an associate and a bachelor of science degree. The Appellee is fifty-eight years of age and has continued to engage in his employment as a deputy sheriff, despite complaints of various medical problems.   (See footnote 6)  Financial statements indicate that the Appellee's gross monthly salary was $3,657.36. At the time the Appellee's financial statement was filed on March 29, 1999, the Appellee's net monthly salary was $2,355.46.

    By order dated June 13, 2001, Family Law Master Robert Montgomery issued a recommended order denying the Appellant an alimony award, granting possession of the marital home to the Appellee, and determining equal distribution by subtracting $7,350.00 in “offsets” from the Appellant's share of equity in the marital home,   (See footnote 7)  leaving a payment of $9,402.89 as equitable distribution to the Appellant. These offsets included $1,050.00, as the Appellee's half of a $2,100.00 tax refund for 1998; $1,000.00 as the Appellee's half of a $2.000.00 joint marital account fund; $3,300.00 as an additional amount paid by the Appellee to the Appellant after separation; and $2,000.00 for a loan ordered in the temporary order to be used for monthly expenses by the Appellant. By order dated October 3, 2002, the circuit court approved the recommended order, and the Appellant now appeals that decision.

    On appeal, the Appellant contends that the lower court erred by failing to award alimony, by failing to grant the Appellant possession of the marital home, and by erroneously calculating the equitable distribution to which she is entitled.
    

        With regard to the denial of an alimony award, the lower court further stated as follows:

            That after consideration of all of the factors contained in West Virginia Code 48-2-16 including, but not limited to, the fact that the Defendant shall retain all of her social security award, receive equitable distribution payment of $9,402.89, receive retirement benefits pursuant to a subsequent QDRO within the maximum of less than 8 years, and division of the marital debts which shall leave the Plaintiff debt-free, the payment of alimony is not appropriate in this case.

        Upon our review of this matter, we find that the lower court abused its discretion by finding substantial inequitable conduct by the Appellant and in utilizing that judgment in the denial of alimony. The absence of marital physical relations, failure to attend family functions, and inattentiveness to household chores are insufficient bases for a total denial of an alimony award in a case in which the financial disparity between the parties is substantial. Other courts dealing with failure to engage in physical relations due to health-related issues have concluded that such inactivity cannot be characterized as fault or inequitable conduct when determining rights upon divorce. In Doane v. Benenate, 671 So.2d 523 (La. App. 4th Cir. 1996), for instance, Mr. Doane testified he left the marital home because the marriage and sexual relations had declined. 671 So.2d at 524. Mr. Doane claimed that Mrs. Doane's expressions of lack of love and her requests that he leave the domicile support the finding that Mrs. Doane was at fault. Mrs. Doane contended that her conduct was caused by mental illness, and the court concluded that “[a]ctions of one spouse toward another that normally constitutes cruel treatment are excused when involuntarily induced by a preexisting physical or mental illness.” Id. at 424-25, citing Shenk v. Shenk, 563 So.2d 1000, 1003 (La. App. 4th Cir. 1990).

        In Shenk, the Louisiana court addressed the issues of the sexual relationship of parties to a divorce and held that

        [s]ince there are many considerations between parties upon which such a private and sensitive act may depend, we, as other courts have wisely held previously, refuse to establish a quota for frequency of sexual contact, anything short of which would constitute grounds for fault in the dissolution of a marriage.

563 So.2d at 1003; see also Bettencourt v. Bettencourt, 381 So.2d 538 (La.App. 4th Cir.1980), writ denied 383 So.2d 12 (La. 1980); Courville v. Courville, 363 So.2d 954 (La.App. 3rd Cir.1978), writ denied 365 So.2d 243 (La. 1978). The Shenk court analyzed the basis for Mrs. Shenk's reluctance to engage in a sexual relationship and noted:

        Significantly, at the time the sexual relationship began to falter Mrs. Shenk was having medical problems directly related to sexual intercourse. Moreover, shortly before or after their move to Houston, Mrs. Shenk received a letter from the person who abused her as a child. The rekindling of such a traumatic experience, the trial court found, directly contributed to her refusal to engage in sexual relations with her husband.

563 So.2d at 1003.

        In further justifying the denial of an alimony award in the present case, the lower court explained that the Appellant was permitted to retain her $19,016.25 social security disability award and her monthly social security disability benefits. However, the lower court appears to have disregarded the fact that those monthly benefits may not continue indefinitely, based upon the review to which such award will be subjected every three years. Of potentially greater impact upon the Appellant's financial endurance is the fact that the retirement benefits to which she is entitled may not begin until 2008. In circumstances of this nature, an award has sometimes been granted, allowing an individual to obtain a temporary alimony award, payable only until such time as other identified benefits are imparted. In McGraw v. McGraw, 186 W.Va. 113, 411 S.E.2d 256 (1991), for instance, this Court approved such an award for the period between divorce and eligibility for retirement benefits at age 62. “The alimony awarded to Mrs. McGraw is not to rehabilitate her but rather to assure her of income until her retirement benefits begin.” 186 W. Va. at 117, 411 S.E.2d at 260.

        The situation in the present case is also complicated by the fact that payments ordered to be paid by the Appellee to the Appellant while the divorce was pending were later charged against the Appellant as offsets to her share of the marital home equity, despite the fact that the order granting such amounts states that consideration would later be given to the issue of whether such payments should fairly be characterized as alimony, equitable distribution, or otherwise. As referenced above, the offset of $7,350.00 included $1,050.00, as the Appellee's half of a $2,100.00 tax refund for 1998; $1,000.00 as the Appellee's half of a $2,000.00 joint marital account fund; $3,300.00 as an amount paid by the Appellee to the Appellant after separation; and $2,000.00 for loan taken by the Appellant. Upon remand, the lower court should determine an appropriate alimony award, giving complete consideration and explanation to the interplay among the lump sum social security payment, the uncertainty of future monthly social security payments, the absence of retirement benefits until possibly 2008, the payments of temporary support between the parties' separation and the final order, and other matters as deemed necessary by the lower court.

        We also direct the lower court to conduct further hearings, if additional evidence is deemed necessary. We note that the parties apparently submitted their individual recommended findings of fact and conclusions of law to the family law master and did not have an opportunity to review or rebut the contentions of the opposing party prior to final decision of the family law master. Moreover, upon the Appellant's filing of exceptions to the recommended order, the lower court, by order dated October 3, 2001, held that further hearing was “not necessary in order for the Court to make a decision in this matter.” On remand, consideration should be given to permitting the parties an opportunity to consider and rebut the opponent's positions.

        On remand, the lower court should readdress the issue of the Appellant's entitlement to a greater award of attorney fees, in light of the disparity in income between the Appellant and the Appellee and additional fees incurred in the successful appeal to this Court.