Pearson v. Pearson

Page 414

488 S.E.2d 414

200 W.Va. 139

Karen PEARSON, Plaintiff Below, Appellant v. Roger PEARSON, Defendant Below, Appellee.

No. 23679.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 5, 1997.

Decided March 21, 1997.

Dissenting Opinion of Chief Justice

Workman July 21, 1997.

[200 W.Va. 141] Syllabus by the Court

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. "A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).

3. "Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).

4. "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." Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

5. " 'Alimony must not be disproportionate to a [person's] ability to pay as disclosed by the evidence before the court.' Syllabus, Miller v. Miller, 114 W.Va. 600, 172 S.E. 893 (1934)." Syl. Pt. 2, Sandusky v. Sandusky, 166 W.Va. 383, 271 S.E.2d 434 (1981).

6. "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." Syl. Pt. 4,Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996).

7. Although the Railroad Retirement Act of 1974, 45 U.S.C. § 231m, expressly precludes Tier I benefits from consideration as divisible marital property, Tier I benefits may be used for the purpose of making alimony payments when vested.

8. The Railroad Retirement Act of 1974, 45 U.S.C. § 231m specifically prohibits offsetting Tier I benefits, as set out in 45 U.S.C. § 231b(a)(1), in a divorce proceeding. Therefore, a court cannot offset an equal division of marital assets to compensate a spouse for not being awarded any portion of the other spouse's Tier I benefits.

9. W.Va.Code § 48-2-15(b)(9) (1996) provides "[w]hen allegations of abuse have been proven, the court shall enjoin the offending party[.]" This provision makes it mandatory that a restraining order be entered against a spouse where it is shown by a preponderance of the evidence that such spouse abused the other spouse.

10. " 'An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors.' Syllabus Point 3, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988)." Syl. Pt. 6, Wood v. Wood, 184 W.Va. 744, 403 S.E.2d 761 (1991).

11. "Pursuant to W.Va.Code § 48-2-13(a)(6)(A), the court in a divorce proceeding may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court." Syl. Pt. 12, Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996).

12. " '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)." Syl. Pt. 5, Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996).

13. Attorney's fees in a divorce proceeding may be awarded to a party who received free legal aid services or pro bono legal representation; however, such an award is to compensate and reimburse legal counsel and shall not be paid to the litigant.

Marcelle St. Germain, Logan, for Appellant.

James A. Walker, Logan, for Appellee.

DAVIS, Justice:

This appeal arises from an order of the Circuit Court of Logan County which granted a divorce to Karen Pearson, plaintiff/appellant, (hereinafter referred to as plaintiff) and Roger Pearson, defendant/appellee, (hereinafter referred to as defendant). On appeal the plaintiff alleges that the circuit court committed error with respect to the following: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney's fees; and (7) awarding defendant a Nissan Maxima, goods and furnishings, and the marital home. I.

FACTUAL BACKGROUND

The parties were married on September 25, 1969. Two children, now adults, were born from the marriage. The record indicates that the plaintiff did not work outside the home during the marriage. Plaintiff was a full-time homemaker. The defendant was employed throughout the marriage as a railroad employee with CSX Transportation.

The first significant problem between the parties occurred in 1987. In 1987, plaintiff suffered facial injuries as a result of a domestic fight with the defendant. The parties separated temporarily after this incident.

The record does not disclose any problems in the marriage after the 1987 incident, until the plaintiff filed for divorce in May of 1993. As grounds for divorce the complaint alleged cruel treatment, alcoholism and irreconcilable differences. The defendant filed a counterclaim seeking a divorce on the grounds of cruelty and irreconcilable differences.

The family law master held evidentiary hearings in this matter on October 12, 1994 and November 16, 1994. A recommended decision, that included granting a divorce on grounds of irreconcilable differences, was filed by the family law master on April 14, 1995. The plaintiff petitioned for review of the recommended order. The circuit court issued a final order on March 28, 1996, which adopted all of the family law master's recommendations except one. The circuit court found that the family law master abused her discretion in awarding the sum of $150 per month as alimony to plaintiff. The circuit court increased alimony to $375 a month. The plaintiff thereafter prosecuted this appeal. The plaintiff has assigned as error: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney's fees; and (7) the award to defendant of the Nissan Maxima, goods and furnishings, and the marital home.

II.

STANDARD OF REVIEW

We begin our analysis by setting out the standard in which this Court reviews challenges to an equitable distribution order of a circuit court. We outlined that standard succinctly in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):

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.

See also Syl. Pt. 2, Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451 (1995). It was noted by this Court in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995) that "[a] circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard." We explained in syllabus point 3 of Stephen L.H., that "[u]nder the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences."

With the above principles in view we now turn seriatim to plaintiff's assignments of error.

A. Sufficiency Of Alimony Amount

The...