STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Eldon Haught, Respondent Below, FILED
Petitioner January 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-0177 (Ritchie County 04-D-8) OF WEST VIRGINIA
Mary Haught, Petitioner Below,
Respondent
MEMORANDUM DECISION
Petitioner Husband, by counsel Michele Rusen and Richard Bush, appeals the Circuit
Court of Ritchie County’s order entered on January 18, 2013, which affirmed the family court’s
final order. Respondent Wife, by counsel Berkeley Simmons, filed a response, to which
Petitioner Husband filed a reply. On appeal, Petitioner Husband alleges that the circuit court
erred in affirming the family court’s final decree of divorce that awarded Respondent Wife
permanent spousal support.
As more fully explained herein, the Court is of the opinion that the circuit court erred in
refusing Petitioner Husband’s petition for appeal from the family court’s final order. We find
that the circuit court erred by failing to conduct a proper analysis before denying the petition for
appeal, and that this case must be reversed and remanded for that purpose. Moreover, this case
satisfies the “limited circumstances” provision of Rule 21(d) of the Rules of Appellate
Procedure, making it appropriate for the Court to issue a memorandum decision rather than an
opinion.
The parties were married on August 30, 1957. They separated in October of 2003, and
Respondent Wife filed a petition for legal separation several months later on January 16,
2004. The case remained active in family court for several years until a final order granting
divorce and other relief was entered on March 26, 2007. In December of 2008, Petitioner
Husband filed a petition for appeal from the family court’s final order challenging the award of
permanent spousal support and the denial of his motion for reconsideration of permanent spousal
support. By order entered on June 1, 2011, the circuit court denied Petitioner Husband’s appeal
from the family court final order on the ground that the appeal was untimely filed. Thereafter,
Petitioner Husband filed a notice of appeal with this Court. By order entered on October 25,
2012, this Court held that Petitioner Husband’s petition for appeal was timely filed and
remanded this case for consideration by the circuit court. Eldon J.H. v. Mary J.H., No. 11-1134
(W.Va. Supreme Court, October 25, 2012)(memorandum decision).
Following remand, the circuit court refused Petitioner Husband’s appeal challenging the
award of permanent spousal support by order entered on January 18, 2013. It is from this order
that Petitioner Husband appeals.
1
This Court has stated that:
In reviewing a final order entered by a circuit court judge upon a review
of, or upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
On appeal, Petitioner Husband argues that the family court failed to consider, note,
discuss, or analyze the income generated by the assets awarded to Respondent Wife as well as
the loss of income to Petitioner Husband, in violation of West Virginia Code § 48-6-301(b)(5)
and Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).1 He argues that the award of
permanent spousal support allows Respondent Wife to “double-dip.” Additionally, Petitioner
Husband argues that the family court’s finding that he did not object to an award of spousal
support or to the amount of support is erroneous and that he cannot waive his right to this
objection pursuant to Skidmore v. Skidmore, 225 W.Va. 235, 241, 691 S.E.2d 830, 836 (2010).
A review of the family court’s final order simply states that “based on the factors as set
forth in West Virginia Code § 48-6-301 . . . the [Respondent Wife] should be awarded spousal
support from [Petitioner Husband] until the death of [Respondent Wife], the remarriage of
[Respondent Wife] or the death of [Petitioner Husband].” Likewise, the circuit court held that the
Family Court judge “considered the appropriate statutory factors” and did not “abuse her
discretion.” In reviewing the circuit court and family court’s final orders, and in consideration of
the applicable standard of review, the Court finds that the lower courts failed to appropriately
analyze and apply the necessary factors. “The statute requires more than assumption, it
commands analysis and then application.” Banker v. Banker, 196 W.Va. 535, 549, 474 S.E.2d
465, 479 (1996). “[I]t is not necessary to make specific findings as to each statutory factor
recited but only those applicable and appropriate to the case.” Burnside v. Burnside, 194 W.Va.
263, 275 n.30, 460 S.E.2d. 264, 276 n.30 (1995).
Therefore, we reverse the circuit court’s January 18, 2013, order denying Petitioner
Husband’s appeal, and we remand the case back to the circuit court for a specific factual
analysis. The analysis shall address the present employment income and other recurring earnings
of each party; the income-earning abilities of each of the parties; the distribution of marital
property to be made under the terms of a separation agreement or by the court under the
provisions of article seven of this chapter, insofar as the distribution affects or will affect the
earnings of the parties and their ability to pay or their need to receive spousal support; the tax
consequences to each party; and any other relevant factors. See. W.Va. Code § 48-6-301(b).
We express no opinion as to the merits of the arguments in this case.
1
Incidental to the equitable distribution of the marital assets and debts, Respondent Wife
was awarded a one-half interest in multiple income-producing oil and gas interests and certain
stocks.
2
Reversed and Remanded.
ISSUED: January 17, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3