The Opinion of the Court was delivered PER CURIAM.
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.” Syllabus Point
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.
“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).
The
appellant William G. Wilson appeals from a Pleasants County Circuit Court's
divorce order adopting a family law master's recommended order on the
issues of permanent alimony, child support calculation, and attorney's fees
and costs. We affirm the circuit court's rulings and also order the appellant
to pay the appellee's reasonable costs and attorney's fees incurred from defending
this appeal.
The Family Law Master (“FLM”)
(See footnote 1)
held the final divorce
hearing on May 29, 2001. At the final hearing, the parties presented evidence on the amount and duration
of alimony, if any, that appellee should be awarded, the income of the parties
in order to calculate the appellant's child support obligation, and
the parties' attorneys' fees and costs. In
its recommended order, the FLM found that during the
first ten years of the marriage, appellee Tina Wilson had been primarily a stay-at-home
parent, but had worked outside the home as a secretary from June of 1982 until
September of 1984, and then again from September of 1994 through April of 1998.
The appellee obtained new employment in September of 2000, and at the time of
the final hearing, she earned $9.50 an hour, or approximately $1,646.67 per
month.
The FLM recommended awarding the appellee $800.00 a month in permanent alimony.
In making her recommendation,
the FLM set forth the various factors that she considered, including
the length of the parties' marriage, the appellee's truncated work
history, the appellee's earning potential in comparison to the appellant's earning
potential, the financial circumstances of the parties,
and the tax consequences of an alimony award.
Throughout their marriage, the
appellant worked as a pipefitter and was the primary wage earner. At
the time of the final divorce hearing in May 2001, the
FLM found that the appellant
earned an average gross salary of approximately $70,000.00 for the last three
years of the parties' marriage, and that in 2000,
the appellant earned $50,153.40 plus $20,464.08 in additional earnings.
The FLM found that the appellant's gross income was $60,385.45 for purposes
of awarding child support,
and calculated the appellant's monthly gross income as $5,032.13. The FLM recommended
that the appellant pay $497.17 per month in child support until
the parties' daughter turned eighteen in May of 2003.
The FLM also awarded the appellee $500.00 in attorney's fees and costs based on the respective financial circumstances of the parties.
On December 31, 2001, the circuit court adopted the FLM's
recommendations.
This Court has previously stated a three-pronged standard for reviewing the findings of family law masters that circuit courts have adopted.
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 argues that the circuit
court abused its discretion in affirming the FLM's recommendation of permanent
alimony because the factors listed in W.Va. Code, 48- 2-16 [1999]
do not support the FLM's recommendation.
Specifically, the appellant
argues that their marriage lasted only eighteen years and that the appellee
is only 37 years old. He adds that the FLM was mistaken in finding that the
appellee did not regularly work outside the home, and that the FLM underestimated
the appellee's future earning potential. The appellant argues that, at best,
the FLM should award the appellee rehabilitative alimony for a limited amount
of time.
Regarding the award of 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).
W.Va.
Code, 48-2-16(b) [1999] lists
twenty factors that family law masters must consider in calculating alimony
awards. (See
footnote 2) Although W.Va. Code, 48-2-16 [1999] lists
twenty factors, a family law master only needs to make specific findings
for those factors that are applicable to the case at hand. Burnside v.
Burnside, 194 W.Va. 263, 275, 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);
Josimovich v. Josimovich, ___
W.Va. ___, ___ S.E.2d ___, (2002)
(per curiam).
The
FLM stated, on the record and in her recommended order, the various factors
that she considered in reaching her recommendation, including the length of
the parties' marriage, the appellee's brief work
history, the appellee's earning potential in comparison
to the appellant's potential earning power, and the tax consequences of an
alimony award. We
find that the record supports the FLM's recommendation. Therefore, we find
that the circuit court did not abuse its discretion in affirming the FLM's
recommended permanent alimony award.
The
appellant next argues that the FLM erredin calculating the
appellant's income for purpose of awarding child support. The appellant argues
that his differential pay including the increased “Sunday premium”
hourly rate, “supper money,” and “call-in earnings” should
have been classified as overtime pay for
the purpose of calculating the appellant's child support obligation.
For
the purpose of calculating child support, W.Va. Code, 48A-1A-19(b)
[1996] defines gross income as “all earnings in the form of salaries,
wages, commission, fees, bonuses, profit sharing, tips and other income. .
. . [and] an amount equal to fifty percent of the average compensation paid
for personal services for overtime compensation[.]”
Having reviewed W.Va. Code, 48A-1A-19(b) [1996], we find that the FLM properly classified the appellant's earnings, including his increased “Sunday premium” hourly rate, increased hourly holiday rate, supper money, “miscellaneous earnings,” and “call-in earnings,” as general earnings and not overtime compensation for purposes of calculating the appellant's child support obligation. Therefore, we find that the circuit court did not abuse its discretion in adopting the FLM's recommendation that the appellant pay $497.17 a month in child support. Finally, the appellant argues that the lower court erred in awarding the appellee $500.00 in attorney's fees when the appellant is financially able to pay her own counsel.
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 and their unequal potential earning power, we recognize that a greater
attorney's fees award might have been reasonable; nevertheless, we find that
the circuit court did not abuse its discretion in adopting the FLM's recommendation
awarding the appellee $500.00 in attorney's fees.
We further order the appellant
to pay the appellee's reasonable attorney's fees and costs incurred in defending
this appeal, and order that a hearing be scheduled to determine the appellee's
reasonable attorney's fees and costs in accordance with this opinion.
The twenty
factors listed in W.Va. Code, 48-2-16 [1999] are:
(1)
The length of time the parties were married;
(2)
The period of time during the marriage when the parties actually lived together
as husband and wife;
(3)
The present employment income and other recurring earnings of each party from
any source;
(4)
The income-earning abilities of each of the parties. . . [;]
(5)
The distribution of marital property to be made under the terms of a separation
agreement or by the court. . . [;]
(6)
The ages and the physical, mental and emotional condition of each party;
(7)
The educational qualifications of each party;
(8)
Whether either party has foregone or postponed economic, education or employment
opportunities during the course of the marriage;
(9)
The standard of living established during the marriage;
(10)
The likelihood that the party seeking alimony, child support or separate maintenance
can substantially increase his or her income-earning abilities within a reasonable
time by acquiring additional education or training;
(11)
Any financial or other contribution made by either party to the education,
training, vocational skills, career or earning capacity of the other party;
(12)
The anticipated expense of obtaining the education and training described
in subdivision (10) above;
(13)
The costs of educating minor children;
(14)
The costs of providing health care for each of the parties and their minor
children;
(15)
The tax consequences to each party;
(16)
The extent to which it would be inappropriate for a party, because said party
will be the custodian of a minor child or children, to seek employment outside
the home;
(17)
The financial need of each party;
(18)
The legal obligations of each party to support himself or herself and to support
any other person;
(19)
Costs and care associated with a minor or adult child's physical or mental
disabilities; and
(20)
Such other factors as the court deems necessary or appropriate to consider
in order to arrive at a fair and equitable grant of alimony, child support
or separate maintenance.