STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Gladys J., Respondent Below, FILED
Petitioner June 3, 2016
released at 3:00 p.m.
RORY L. PERRY, II CLERK
vs) No. 15-0191 (Cabell County 12-D-598) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Ronnie J., Petitioner Below,
Respondent
MEMORANDUM DECISION
Petitioner Gladys J. (“the wife”), by counsel Steven T. Cook, appeals an order from
the Circuit Court of Cabell County, West Virginia, entered February 4, 2015, affirming the
November 6, 2014, order of the Family Court of Cabell County in this divorce action.
Respondent Ronnie J. (“the husband”), by counsel John Proctor, filed a response. Petitioner
filed a reply. On appeal, Petitioner argues eighteen assignments of error of which this Court
will address only the following four: 1) whether the circuit court erred in affirming the
family court’s determination that the wife was entitled to only $500 per month permanent
spousal support; 2) whether the circuit court erred in affirming the family court’s award of
child support that was not based upon the husband’s gross income at the time of the final
hearing; 3) whether the circuit court erred in affirming the family court’s award of the
dependent children exemptions to the husband; and 4) whether the circuit court erred in
affirming the family court’s determination that the husband pay the wife’s attorney’s fees and
costs in the amount of only $3,000.1
1
We summarily affirm the remaining assignments of error for the following reasons:
1) some of the assigned errors were waived below and not properly preserved before the
lower court; 2) some of the alleged errors were repetitive of others that are addressed; 3)
most of the alleged errors fail to comport with West Virginia Rule of Appellate Procedure
10(7) as the arguments regarding the errors do not exhibit “clearly the points of fact and law
presented, the standard of review applicable, and citing authorities relied on[;] . . .” 4) most
of the alleged errors also fail to comport with Rule 10(7) as the arguments fail to contain
(continued...)
1
Upon review of the parties’ briefs and arguments, the appendix record, and the
pertinent authorities, we affirm the family court and circuit court orders, in part, and reverse,
in part, on the aforementioned four grounds only and remand this case to the family court for
further proceedings consistent with this memorandum decision. This case does not present
a new or significant question of law, and, therefore, it is properly disposed of through this
memorandum decision. For the errors that are reversed, the “limited circumstance”
requirement of Rule 21(d) of the Rules of Appellate Procedure is satisfied. As for the
remaining assigned errors, the Court finds no substantial question of law and no prejudicial
error. For these reasons, a memorandum decision affirming the circuit court’s order is
appropriate under Rule 21.
On September 12, 1987, the parties were married in Wyoming County, West
Virginia.2 They had three children born of the marriage. In June of 2012, the husband filed
for divorce, alleging that the parties last lived together and cohabited as husband and wife
in June of 2007. At the time the petition for divorce was filed, the husband was living in
Fairfax County, Virginia, where he was employed by CACI, Inc. The husband had worked
for that company since January 1, 2008. The wife was residing in Cabell County, West
Virginia, when the divorce petition was filed.
The parties were granted a divorce based upon irreconcilable differences by order
entered April 15, 2014. Relative to the issues we now address, in a July 17, 2014, order, the
family court found that the husband was making $145,250 annually, which was an increase
in salary from an earlier temporary order wherein the husband’s annual gross income was
$132,996. The family court noted that the husband “worked as part-time faculty at various
educational institutions but his last such employment ended in May of 2013.” The family
1
(...continued)
“appropriate and specific citations to the record on appeal, including citations that pinpoint
when and how the issues in the assignments of error were presented to the lower tribunal.”
We have repeatedly cautioned attorneys that the record is vitally important to a
successful appeal. Moreover, “‘[a] skeletal “argument”, really nothing more than an
assertion, does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried
in briefs.’ United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)[.]” State, Dep’t of
Health and Human Res. ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765,
466 S.E.2d 827, 833 (1995) (also citing Teague v. Bakker, 35 F.3d 978, 985 n.5 (4th Cir.
1994), cert. denied 513 U.S. 1153 (1995); State v. Honaker, 193 W.Va. 51, 56 n.4, 454
S.E.2d 96, 101 n.4 (1994)).
2
Only the facts relative to the four issues upon which we reverse will be discussed.
2
court further found that the wife “has chosen not to work but has a Bachelor’s degree in
Business Management from Concord University and is capable of becoming certified as an
Ultrasound Tech.” Additionally, the family court found the husband’s change in income did
not constitute a substantial change for purposes of altering the Child Support Formula and
found the wife’s claims of additional sources of income attributable to the husband
“unsupported by the evidence.” Consequently, the family court determined that “[c]hild
support shall remain $1640.00 per month.” The family court also determined that the
husband could claim the children for tax purposes until the wife was gainfully employed.
After the wife obtained employment, the family court dealt with the dependent exemptions
for the children as follows: “The year after the . . . [wife] becomes employed the Parties shall
each claim one child until the eldest child turns 18. After the elder child turns 18, the Parties
shall alternate years with the . . . [husband] claiming the child on even years.” Finally, in a
single sentence, the family court ordered the husband to pay the wife’s attorney’s fees in the
amount of $3,000.
After requesting the family court reconsider its July 14, 2014, which motion was
denied, the wife appealed the order to the circuit court. The circuit court remanded the case
to the family court, in part, for additional findings of fact on two issues including spousal
support.3 The family court in a November 6, 2014, order found the following regarding
spousal support:
1. The Family Court ordered . . . [the husband] to pay the
$1,300 monthly payment for the home at 97 Belmont
Drive Huntington, WV[,] until he is able to purchase the
home. The contract for purchase requires the . . .
[husband] to arrange financing on or before December
31st, 2014. The . . . [husband] shall purchase the home
on or before that date and title the home in both his and
. . .[the wife’s] names as joint-tenants w/survivorship.
The Court ordered that regardless of when the home is
purchased, the . . . [husband] were [sic] to treat that
$1,300 as alimony until December 31st, 2014. The month
after the purchase, the Court ordered . . . [the husband] to
continue to pay the . . . [wife] the difference between the
actual mortgage amount and the $1,300.00 said
3
The other issue in which the circuit court requested additional factual findings
concerned dissipation of marital assets. As indicated supra in note 1, we are affirming the
family and circuit court’s rulings on this issue.
3
difference shall be treated as alimony.
2. The Court ordered . . . [the husband] to continue to pay
for the . . . [wife’s] and minor children’s cell phone bills
through December 31st, 2014. These amounts shall also
be considered alimony. Also, the Court ordered . . . [the
husband] to continue making . . . [the wife’s] car
payments until it is paid off.
3. And finally, the Court ordered that beginning on July1,
2015, . . . [the husband] shall pay the amount of $500.00
as permanent alimony to the . . . [wife] until further order
of this Court.
The family court in the same order then proceeds to mention some of the factors found in
West Virginia Code § 48-6-301, despite the statute expressly providing that the “court shall
consider” the twenty different factors set forth in the statute in determining the amount of
spousal support to be ordered. The only real analysis of any of the statutory factors is
contained within the following paragraph:
6. The . . . [wife] has a Bachelor’s Degree in Business
Management from Concord University and is capable of
becoming certified as an Ultrasound Tech. The Family
Court had instructed . . . [the wife] on numerous
occasions to seek employment using her degrees and
certifications. The . . . [wife] also stated that she was
simply unable or unwilling to seek employment on the
record even though the . . .[husband] presented evidence
that there were jobs available in her field that would hire
and pay for her certification. And while the . . . [wife]
has custodial responsibility over the parties’ minor
children, they are currently 15 and almost 10 years old
and go to school full time. Therefore, . . . [the wife] can
work during the day while the children are in school and
come home in the evenings to be with them as many
women do these days in age.
The family court also found that it would be “beneficial” for the wife to become employed
so that she could “have the benefit of claiming at least one child on her taxes[,]” and that the
spousal support award “maintains the standard of living to which she [the wife] was
accustomed prior to the Parties’ separation and gives her six months to secure employment.”
4
The wife again appealed to the circuit court and by order entered February 4, 2015,
the circuit court denied the wife’s petition for appeal and affirmed the decision of the family
court.
The first issue we address concerns the permanent spousal support award. The wife
argues that the family court erred in awarding her only $500 per month in permanent spousal
support given the level of fault attributable to the husband and the consideration of all of the
twenty factors set forth in West Virginia Code § 48-6-301. The husband argues that there
was no error committed in the spousal support award and that “[t]he comments of the Family
Court suggest that the greatest fault was Wife’s complete unwillingness, during the entire
time the divorce was going forward, to make any effort to find work and become self-
supporting.”
West Virginia Code § 51-2A-14(c) provides that “[t]he circuit court shall review the
findings of fact made by the family court judge under the clearly erroneous standard and shall
review the application of law to the facts under an abuse of discretion standard.” Likewise,
we have previously held that
[i]n 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.
Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). In addition, in family
law cases, orders must be sufficient to indicate the factual and legal bases on which the lower
courts ruled so as to facilitate meaningful appellate review. See Province v. Province, 196
W.Va. 473, 483, 473 S.E.2d 894, 904 (1996). Accordingly, “[w]here the lower tribunals fail
to meet this standard–i.e. making only general, conclusory or inexact findings–we must
vacate the judgment and remand the case for further findings and development.” Id.
In the instant case, it is apparent from our review of the appendix record that while
the family court and circuit court had no problem assessing fault to the wife for not finding
employment after the separation and divorce,4 there was no real discussion concerning the
husband’s fault or comparison of the husband’s fault with the wife’s fault for purposes of
determining an appropriate spousal support award. West Virginia Code § 48-8-104 provides
4
The parties had agreed that the wife would not work during the marriage.
5
that
[i]n determining whether spousal support is to be
awarded, or in determining the amount of spousal support, if
any, to be awarded, the court shall consider and compare the
fault or misconduct of either or both of the parties and the effect
of the fault or misconduct as a contributing factor to the
deterioration of the marital relationship.
(Emphasis added). Further, we recognized that marital fault was a statutory factor to be
examined by the court in determining spousal support in Hastings v. Hastings, 201 W. Va.
354, 497 S.E.2d 203 (1997), as follows:
Indeed, we have even held that evidence of very aggravated
marital fault may justify the award of premium fault alimony. In
syllabus point four of Rogers v. Rogers, 197 W.Va. 365, 475
S.E.2d 457 (1996), for instance, we explained:
In appropriate circumstances, an enhancement of
an award of maintenance/alimony based on the
degree of fault is justified. Enhancement of a
maintenance/alimony award by a fault premium
may be awarded when additional support is
required to reimburse the injured spouse for
expenses directly related to the fault or to assure
that the injured spouse continues to have the
standard of living enjoyed during the marriage. A
fault premium may also be applied to discourage
the fault or behavior that contributed to the
dissolution of the marriage. In determining an
award of maintenance/alimony enhanced by a
fault premium, the circuit court must consider the
concrete financial realities of the parties.
Hastings, 201 W. Va. at 358-59 n.9, 497 S.E.2d at 207-08 n.9.
In the instant case, there is no indication that the family court properly fulfilled the
statutory obligation to consider the parties’ fault or misconduct “as a contributing factor to
the deterioration of the marital relationship.” W. Va. Code § 48-8-104. Rather, the only real
analysis of fault involved conduct engaged in by the wife after the date of separation and
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divorce in failing to seek employment.
Moreover, West Virginia Code § 48-6-301 provides:
(b) The court shall consider the following factors in determining the
amount of spousal support, child support or separate maintenance, if any, to
be ordered under the provisions of parts 5 [§§ 48-5-601 et seq.] and 6 [§§ 48
6-601 et seq.], article five of this chapter, as a supplement to or in lieu of the
separation agreement:
(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, based
upon such factors as educational background, training,
employment skills, work experience, length of absence from the
job market and custodial responsibilities for children;
(5) 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, child
support or separate maintenance: Provided, That for the
purposes of determining a spouse’s ability to pay spousal
support, the court may not consider the income generated by
property allocated to the payor spouse in connection with the
division of marital property unless the court makes specific
findings that a failure to consider income from the allocated
property would result in substantial inequity;
(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 spousal support, child
support or separate maintenance can substantially increase his
or her income-earning abilities within a reasonable time by
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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 spousal support, child support or separate maintenance.
(Emphasis added). We have recognized that this statute means that the “twenty items must
be considered in determining the amount of spousal support to be awarded.” Sloan v. Sloan,
219 W. Va. 105, 108-09, 632 S.E.2d 45, 48-49 (2006); accord Mayle v. Mayle, 229 W. Va.
179, 184-85, 727 S.E.2d 855, 860-61 (2012).
The family court made some findings regarding its decision to award $500 in
permanent alimony; however, the findings that it did make are insufficient. Most of the
family court’s focus was on the wife’s failure to seek employment during the divorce
proceedings and only lip-service was given to the remaining factors set forth in West
Virginia Code § 48-6-301. Moreover, there was no examination of any fault of the husband
despite the evidence below, which certainly warranted such an examination. Consequently,
we find the family court erred in its award of permanent spousal support award in the amount
of $500. The family court failed to properly consider all the statutory factors, failed to
consider the husband’s earnings of $145,250 per year, with the wife having no attributable
income, and failed to consider the husband’s fault. See W. Va. Code § 48-6-301 and § 48-8
104. We, therefore, reverse and remand the case for further consideration on this issue.
Furthermore, in light of our reversal of the permanent spousal support award, we also reverse
8
the child support award5 and remand for further consideration including all current gross
income information from the husband.
Next, we address the issue regarding the dependent children tax exemptions. The wife
argues that her right to claim the children is statutory and mandatory absent agreement by her
to change the same as she is the custodial parent of the children. The husband argues that the
wife fails to allege how she is aggrieved by the family court’s ruling regarding the dependent
exemptions or how a different allocation would provide her with a tax benefit.
West Virginia Code § 48-13-801 provides:
Unless otherwise agreed to by the parties, the court shall
allocate the right to claim dependent children for income tax
purposes to the payee parent except in cases of extended shared
parenting. In extended shared parenting cases, these rights shall
be allocated between the parties in proportion to their adjusted
gross incomes for child support calculations. In a situation
where allocation would be of no tax benefit to a party, the court
need make no allocation to that party. However, the tax
exemptions for the minor child or children should be granted to
the payor parent only if the total of the payee parent’s income
and child support is greater when the exemption is awarded to
the payor parent.
Despite the husband’s arguments, the family court failed to follow the express
provisions of West Virginia Code § 48-13-801 in giving the dependent exemptions to the
husband. We do not disagree with the family court’s decision to allow the husband to claim
the children as dependents for tax purposes because the wife was not employed. The family
court’s allocation of the dependent exemptions, however, lacks any analysis or factual
findings regarding the tax benefits to either party or a finding that “the total of the payee
parent’s income and child support” is greater when the exemption is awarded to the payor.
See id. The family court, therefore, erred in failing to follow West Virginia Code § 48-13-801
and we reverse on this issue.
Finally, we address the amount of the wife’s attorney’s fees the family court
5
The child support award of $1640 per month had been in place since the entry of a
temporary order on January 14, 2013, despite the family court being provided with updated
gross income amounts for the husband prior to entry of the final orders.
9
determined that the husband must pay. The family court ordered that the husband pay the
wife’s attorney’s fees in the amount of $3,000. The wife argues that the family court’s award
was in error as she has $19,310.70 in attorney’s fees and costs. Relying upon this Court’s
decision in Banker v Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996), the wife contends that
because of the husband’s misconduct, the disparity in the parties’ income and the fact that she
“prevail[ed] on every issue[,]” she should have received a greater award. Conversely, the
husband maintains that the attorney’s fee award is within the sound discretion of the court and
the court did not abuse its discretion.
In Banker, this Court held in syllabus point four:
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.
Id. at 538, 474 S.E.2d at 468, Syl. Pt. 4.
The family court devoted an entire sentence in its order addressing the attorney’s fees
award and failed to articulate any reasoning regarding the award. Therefore, it is impossible
to ascertain from the order how the family court arrived at the amount of $3,000 as attorney’s
fees to be paid by the husband. As such, we find that the family court abused its discretion
by failing to consider any of the factors set forth by the Court in Banker in arriving at its
decision. Id. Thus, we reverse and remand for further proceedings regarding the award of
attorney’s fees.
For the foregoing reasons, we affirm the circuit court, in part, and reverse, in part, and
remand the case to the family court for further proceedings consistent with this decision
regarding the spousal support award, the child support award, the dependent children tax
exemption and the attorney’s fee award.
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Affirmed, in part;
Reversed and remanded, in part.
ISSUED: June 3, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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