Ball v. Wills

Decision Date15 December 1993
Docket NumberNo. 21608,21608
Citation438 S.E.2d 860,190 W.Va. 517
CourtWest Virginia Supreme Court
PartiesRebecca White BALL (Formerly Wills), Plaintiff Below, Appellant, v. Mark E. WILLS, Defendant Below, Appellee.

1. In conjunction with any determination of child support pursuant to the child support guidelines set forth in West Virginia Code of State Regulations §§ 78-16-1 to -20 (1988), where a support obligor's income is not a fixed amount, but tends to fluctuate significantly from year to year, sole reliance on the support obligor's year-to-date income is insufficient for the purposes of determining child support, either initially or in the context of a modification. In cases involving fluctuating income, the court must require full financial disclosure and review financial information including, but not limited to, income tax returns and year-to-date income for a lengthy enough period of time so that significant past or anticipated changes in income are incorporated when calculating the support obligor's income.

2. West Virginia Code § 48-2-15a(b) (1992) mandates that the trial court shall ascertain each parent's ability to provide medical care for their children each time an order requiring child support payments is either established or modified.

3. "The purpose of W.Va.Code, 48-2-13(a)(4) (1986), is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees during the course of the litigation." Syl.Pt. 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

4. " 'In a suit for divorce, the trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that he has abused his discretion.' Syllabus point 3, Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959)." Syl.Pt. 2, Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982).

James M. Cagle, Charleston, for appellant.

Mary Ellen Griffith, Bell & Griffith, Princeton, for appellee.

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of Rebecca White Ball from the August 7, 1992, order of the Circuit Court of Mercer County, denying the Appellant's April 10, 1992, petition wherein the Appellant sought an increase of child support and medical support for the children, a redistribution of marital property to satisfy any support increase awarded, and an award of attorney's fees. The Appellant alleges the following assignments of error: 1) the trial court failed to consider the best interests of the children when determining child support; 2) the trial court failed to increase child support because the trial court not only failed to recognize that when the Appellee's income increased to a level which created an increased child support obligation of more than fifteen percent, the child support level presumptively increased, but the trial court also used only a four-month period of time to derive the Appellee's net income for the purposes of determining child support which contravenes the child support guidelines and the public policy of this state; 3) the trial court failed to consider an increase in the Appellee's medical care obligation for the children pursuant By order dated July 10, 1990, the Appellant and the Appellee were granted a divorce based upon irreconcilable differences. A "Property Settlement and Agreement," (hereinafter referred to as agreement) dated June 29, 1990, and executed July 10, 1990, was merged into and made a part of the final order of the divorce. The purpose of the agreement was that the parties were "desirous of entering into an agreement under which they make a final settlement of the rights and obligations between themselves to the extent that they are able to do so under the law...." A substantial portion of the agreement pertained to the custody and care of the parties' two children, Jonathan Brubaker Wills and Caitlin McKenzie Wills, ages six and four respectively at the time the divorce was granted, including the following pertinent provisions:

[190 W.Va. 520] to West Virginia Code § 48-2-15a (1992); 4) the trial court refused to consider West Virginia Code § 48-2-15(e) (1992) which allows the court an alternative means for modifying support by redistributing marital property; and, 5) the trial court refused to award the Appellant the requested amount of attorney's fees and costs. Based on a review of the record, including the parties' briefs, and all other matters submitted before this Court, we agree that the Appellant was entitled to an increase in both child support and medical care support for the children, as well as the amount of attorney's fees awarded. Accordingly, we reverse and remand for further proceedings.

3. Husband [the Appellee] shall pay unto wife [the Appellant] child support in the amount of One Thousand Two Hundred Fifty Dollars ($1,250.00) per month, payable in two equal monthly installments on the 1st and 15th of each month, beginning July 1 and 15, 1990. The parties hereto acknowledge that said child support is in excess of that provided by the applicable formula in West Virginia given their present earnings, but they have negotiated this amount which they believe to be in the best interest of their children.


15. Wife agrees to maintain hospital and medical insurance coverage for the infant children, and husband shall be responsible for all uninsured medical, hospital, dental, orthodontic, optical and pharmaceutical expenses incurred on behalf of said children up to and including August 31, 1990. Beginning September 1, 1990, the parties shall equally divide any of said uninsured medical and hospitalization expenses.

On May 11, 1992, the trial court considered evidence on the financial circumstances of the parties relevant to the Appellant's April 10, 1992, petition for modification. That evidence revealed that the parties' combined gross income in 1989, the year utilized to determine the amount of child support for the purposes of the agreement, was $89,000. Of that amount, the Appellant contributed $25,000 as a college professor at Concord College and the Appellee made $59,000 from his law practice.

The record establishes that in 1990, the Appellant filed a separate income tax return showing gross earnings in the amount of $25,661, $9,823 of which was from her teaching, $14,500 of which was alimony, which included the lump-sum alimony payment of $10,000 under the terms of the agreement, and $1,050 of which was from a consulting job as well as interest and dividend income. The Appellee's federal and state tax returns for the same year show that his gross earnings were $504,443. The dramatic increase in the Appellee's income was due to the receipt of an attorney's fee in excess of $430,000 from a personal injury. While the fee was not received until after the parties' divorce was finalized, the Appellee's law firm took the case from which the large attorney's fee was collected in 1988, prior to the divorce.

In October of 1991, the Appellant remarried. She and her new husband filed joint federal and state tax returns reflecting gross income of approximately $55,600. Of that amount, the Appellant contributed $29,000 and her husband was responsible for 26,600. The Appellee also remarried in July of 1991. He and his new wife filed joint state and federal tax returns that reflected a gross combined income in excess of $183,000. Of that sum the Appellee's new wife earned approximately $35,000 as a nurse, while the For 1992, the Appellant testified that her take-home pay per month was $1,473.75. The trial court added to that amount $491.66 which the Appellant had withheld for investment purposes which increased her take-home pay to $1,965.41. The Appellee testified that for his year-to-date earnings through the first week of May 1992, he had withdrawn $21,975 from the firm and he had earned an additional $1,000 in investment income. These figures reflect a gross monthly income of $5,743.75. The trial court used these monthly income amounts reflecting the parties' income for 1992 in determining child support pursuant to the child support guidelines. 1 The trial court also found that the Appellant paid twenty dollars a month to carry medical and hospital insurance protection for the children.

[190 W.Va. 521] Appellee earned approximately $148,000 from his law practice.


The first issue before the Court focuses upon the failure of the trial court to modify child support. This issue arises out of the following conclusion made by the trial court:

The evidence was that the two children of the parties were normal 6 and 4 year olds (sic), having all they wanted or needed and requiring nothing special in the way of expenditures. Accordingly, the court finds and holds that plaintiff-respondent failed to establish on any ground that the child support agreement set out in the property settlement and agreement should be modified, changed, or increased in any way.

The Appellant argues that the trial court erred in failing to utilize a period of time which fairly represented the Appellee's actual income vicissitudes. The Appellant maintains that had the trial court utilized a more sufficiently lengthy period of time in ascertaining the Appellee's fluctuating income, the evidence would have established that the existing child support payments were less than eighty-five percent of what the payments would be under the child support guidelines utilizing the increased income. When this occurs, the Appellant argues that pursuant to West Virginia Code § 48-2-15(e) (1992), 2 the child support payment presumptively increases. The Appellant maintains that the trial court's use of only the Appellee's 1992 year-to-date income, which encompassed the first four...

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