Banker v. Banker

Decision Date17 May 1996
Docket NumberNo. 22166,22166
CourtWest Virginia Supreme Court
PartiesGeorge M. BANKER, Plaintiff Below, Appellee, v. Anne F. BANKER, Defendant Below, Appellant.

2. Under W.Va.Code, 48-2-15(e) (1993), a circuit court has jurisdiction to hear and rule upon a motion seeking modification of a decree to include alimony, as the ends of justice may so require, even though the decree previously denied alimony or did not address the issue of alimony. To the extent that Savage v. Savage, 157 W.Va. 537, 203 S.E.2d 151 (1974), and its progeny are inconsistent, they are expressly overruled.

3. When a party to a divorce action neglects to assert a claim of alimony for an unreasonable and unexplained length of time and other circumstances cause prejudice to the adverse party, relief should be denied on the grounds of laches. However, the mere lapse of time is not enough to invoke the doctrine. For laches to apply, the circuit court must consider the circumstances surrounding the delay and any disadvantage and prejudice to the other party caused by the delay.

4. 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.

Rebecca A. Baitty, Sarasota, Florida, for Appellee.

Richard A. Bush, Bush & Trippel, Parkersburg, for Appellant.

CLECKLEY, Justice:

In this divorce proceeding, Anne F. Banker, the defendant below and appellant herein, appeals a final order of the Circuit Court of Cabell County. She contends the circuit court erred by failing to award her permanent alimony, attorney's fees, and expert witness fees. 1 After an exhaustive and thorough review of the record and the briefs of the parties, we find the circuit court failed to accord proper deference to the special commissioner's recommendation that the defendant receive a nominal alimony award of $1.00 per month; committed error in not properly considering all relevant factors for a substantial alimony award; and did not fully consider factors that mitigate toward granting attorney's fees and expert witness fees. Accordingly, the circuit court's decision is reversed and remanded.


The parties were married in 1956. Five children were born of the marriage, all of whom are now emancipated adults. During the marriage, the defendant performed the tasks of a homemaker and did not work outside the home. The plaintiff's employment history began when he dropped out of high school, following the death of his father, and enlisted in the United States Marine Corps. At the end of his tour of military duty, the plaintiff found employment as a truck driver and salesman with a local Pepsi Cola Company. The plaintiff's industrious work ethic enabled him to eventually become a managing partner of the Huntington branch of Pepsi Cola. The joint diligence and "smart" investment decisions of the parties allowed them to acquire marital assets with a net value of over two million dollars.

During the course of their marriage the parties began to experience problems stemming from an affair the plaintiff was having with his former secretary. This situation reached a critical stage in 1985, and the parties decided to separate. The separation apparently did not last long, and the parties decided to attempt to reconcile their differences in order to salvage their marriage. In spite of their efforts to salvage the marriage, reconciliation was not to be. The parties separated again in 1988 and, in the same year, the plaintiff filed this divorce action.

The special commissioner in this case held numerous hearings regarding the financial situation of the parties. The circuit court adopted the majority of the special commissioner's findings and recommendations as to how the marital assets should be distributed. The only issue on appeal is whether the defendant is entitled to a nominal or substantial alimony award, attorney's fees, and expert witness fees.

The special commissioner found the defendant was entitled to an award of alimony from the plaintiff. This finding was based primarily on the fact that the plaintiff had an affair with his former secretary, which was the cause of the divorce. 2 Additionally, the length of the marriage and the fact that the defendant never worked outside the home were also listed by the special commissioner as reasons why alimony should be awarded. 3

                [196 W.Va. 540] In considering the amount of the alimony award, the special commissioner noted the substantial amount of assets, both liquid and nonliquid, received by the defendant following equitable distribution.  With the latter finding squarely in view, the special commissioner concluded the defendant had received enough money to "maintain a lifestyle approaching the standard of living to which she ha[d] grown accustomed."   Therefore, the special commissioner recommended the defendant receive a nominal alimony award of $1.00 per month, with a stated understanding that the award would be subject to review should the economic situations of the parties substantially change

On the issue of attorney's fees and expert witness fees, the special commissioner recommended that each party bear his or her fees because, following distribution of the marital estate, the financial positions of the parties would be substantially the same. The special commissioner specifically found the defendant would "possess adequate resources of her own to compensate her attorneys, accountants, and pay her related reasonable expenses."

In its final order, the circuit court adopted the majority of the factual findings and recommendations of the special commissioner. The circuit court agreed with the special commissioner that each party should bear their own expenses and attorney's fees. However, the circuit court determined the defendant should receive no alimony award due to the sizable amount of assets received by her following equitable distribution.


This case raises two important issues: (1) whether the lower tribunals abused their discretion by not considering relevant factors critical to a determination of alimony and attorney's fees and expert witness fees, and (2) whether the circuit court gave proper deference to the factual findings and recommendations of the special commissioner, as required under Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995). In Stephen L.H., this Court discussed the standard a court should employ when reviewing the findings of fact and recommendations of a family law master or, as in this case, a special commissioner assigned to the case. 4 In Syllabus Point 1 of Stephen L.H., we held:

"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."

See W.Va.Code, 48A-4-20(c) (1993). 5 See also, Syl. Pt. 1, Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451 (1995); Syl. Pt. 1, Campbell v. Campbell, 194 W.Va. 334, 460 S.E.2d 469 (1995); Syl. Pt. 2, Durnell v. Durnell, 194 W.Va. 464, 460 S.E.2d 710 (1995). Stephen L.H. and its progeny require substantial deference be given to factual

                [196 W.Va. 541]  findings and recommendations of a family law master, if such findings and recommendations are supported by substantial evidence on the record as a whole and are based upon a correct application of law.  In determining whether the family law master correctly applied the law, our review, as well as the circuit court's review, is de novo.   See Syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995). 6  We will now proceed to determine whether the circuit court properly applied these standards to the case under review
A. Alimony Award

We begin our task by focusing upon the basics. The factual determinations of the family law master were adopted and ratified by the circuit court. However, on the question of alimony, the circuit court rejected and modified the family law master's recommendation that the defendant receive a nominal alimony award of $1.00 per month. In Syllabus Point 2 of Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992), we held:

"W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship."

See Syl. Pt. 4, Hillberry v. Hillberry, supra; Syl. pt. 1, Durnell v. Durnell, supra; Syl. Pt. 1, Hickman v. Earnest, 191 W.Va. 725, 448 S.E.2d 156 (1994). Absent a finding of a statutory bar to...

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