Cross v. Cross

• Decision Date: 17 November 1987
• Docket Number: No. 17578,17578
• Citation: 363 S.E.2d 449,178 W.Va. 563
• Court: West Virginia Supreme Court
• Parties: , 56 USLW 2379 Gary Lynn CROSS v. Trinichia Lee CROSS.

Page 449

363 S.E.2d 449

178 W.Va. 563, 56 USLW 2379

Gary Lynn CROSS v. Trinichia Lee CROSS.

No. 17578.

Supreme Court of Appeals of West Virginia.

Nov. 17, 1987.

Rehearing Denied Feb. 3, 1988.

Syllabus by the Court

1. "The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of the time during which gainful employment can be obtained." Syllabus Point 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

2. "There are three broad inquiries that need to be considered in regard to rehabilitative alimony: (1) whether in view of the length of the marriage and the age, health and skills of the dependent spouse, it should be granted; (2) if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and (3) consideration should be given to continuing jurisdiction of rehabilitative alimony." Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73, 78 (1984).

3. "The doctrine of equitable distribution permits a spouse, who has made a material economic contribution toward the acquisition of property which is titled in the name of or under the control of the other spouse, to claim an equitable interest in such property in a proceeding seeking a divorce." Syllabus Point 2, LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983).

4. Although W.Va.Code, 48-2-1 [1984] and W.Va.Code, 48-2-32 [1984] did not specifically mention pension plans as marital property available for equitable distribution, these two Code sections were broad enough to encompass pension plans.

5. When a court is required to divide vested pension rights that have not yet matured as an incident to the equitable distribution of marital property at divorce, the court should be guided in the selection of a method of division by the desirability of disentangling parties from one another as quickly and cleanly as possible. Consequently, a court should look to the following methods of dividing pension rights in this descending order of preference unless peculiar facts and circumstances dictate otherwise: (1) lump sum payment through a cash settlement or off-set from other available marital assets; (2) payment over time of the present value of the pension rights at the time of divorce to the non-working spouse; (3) a court order requiring that the non-working spouse share in the benefits on a proportional basis when and if they mature.

6. As an incident to awarding child support, a circuit court may allocate the federal and state income tax child dependency exemption to the non-custodial parent under IRC § 152(e), as amended in 1984, by requiring the custodial parent to execute the necessary waiver under IRC § 152(e)(2)(A) to allocate the dependency exemption to the non-custodial parent.

Larry L. Skeen, Ripley, for appellant.

Charles R. Garten, Charleston, for appellee.

NEELY, Justice:

Gary Lynn Cross and Trinichia Lee Cross were married in 1969. They had four children. During the marriage, Gary Cross was employed by the Jackson County Board of Education as a teacher and recently was promoted to principal. Trinichia Cross has never worked although she has a college liberal arts degree; she was a homemaker during the marriage.

On 7 June 1984, the appellee, Gary Cross, filed for divorce in Jackson County. His complaint prayed for liberal visitation with the children and equitable distribution of the marital property. By counterclaim, the appellant, Trinichia Lee Cross, sought, inter alia, custody of the children, alimony and an equitable division of marital property. Mrs. Cross alleged a history of poor health and asserted a claim for permanent alimony based upon her medical needs. The parties' marital property consisted of their marital house in Ravenswood, one car and Gary Cross' employment-related retirement account. According to Mrs. Cross, part of the marital property was the fair market value of the appellee's retirement account that was earned in the county school system during their marriage. Evidence on behalf of the parties was taken before a special commissioner.

By final order the circuit court granted the parties a divorce and determined the following:

(a) custody of the children was given to Trinichia Cross, with Gary Cross to pay $125 per month per child toward child support;

(b) Gary Cross was entitled to claim the children as an exemption for income tax purposes;

(c) Trinichia Cross was awarded exclusive use and possession of the former marital home as an incident to support and maintenance of the children until the youngest reaches age 18; and,

(d) Trinichia Cross was awarded rehabilitative alimony of $125 per month for no longer than five years.

I

We first addressed rehabilitative alimony in Syl. pt. 1 of Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984): "The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained." Rehabilitative alimony has been used frequently when a dependent spouse enters a marriage with marketable skills, which then deteriorated through lack of use, or the dependent spouse is capable of becoming self-supporting through training or academic study. In these circumstances, an award of alimony for a limited time is appropriate to give a dependent wife an opportunity to revitalize old skills or acquire new ones. ¹

"There are three broad inquiries that need to be considered in regard to rehabilitative alimony: (1) whether in view of the length of the marriage and the age, health, and skills of the dependent spouse, it should be granted; (2) if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and (3) consideration should be given to continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony." Molnar v. Molnar, supra, 173 W.Va. at 205, at 314 S.E.2d 78. See also, Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985), appeal after remand 177 W.Va. 247, 351 S.E.2d 434 (1986); Syl. Pt. 5, Butcher v. Butcher, 178 W.Va. 33, 357 S.E.2d 226 (1987); W.Va.Code, 48-2-16(b) [1984]. ² It is significant that W.Va.Code 48-2-16(b) [1984] does not require the trial court to make express findings about each of these sixteen criteria, only that each be considered in determining the amount of alimony. Furthermore, in our earlier opinions, we have considered the age and health of the parties, their standard of living, and the duration of the marriage in determining the amount of alimony awards. ³

On appeal, appellant asserts that due to her poor health, she should be awarded permanent rather than rehabilitative alimony. We disagree and find the award of rehabilitative alimony was within the sound discretion of the circuit court. First, the record does not support a conclusion that Trinichia Cross has poor health. Trinichia Cross apparently has nagging but not debilitating health problems and is able to carry out all her normal household tasks. Appellant failed to offer medical evidence to the commissioner to support her present claim of poor health. ⁴ Therefore, we see no reason to disallow rehabilitative alimony based on appellant's health.

Next, appellant asserts, citing Dyer v. Tsapis, 162 W.Va. 289, 249 S.E.2d 509, 513 (1978), that her age and homemaker status will prevent her from finding employment. Many employers, she argues, are reluctant to hire older workers for fear of increased health and pension costs, and because the cost of training older workers cannot be amortized over as many years as with younger workers. However, the court's final order did not foreclose permanent alimony in the future and appellant has not yet tried to find employment and been unsuccessful.

Even if Mrs. Cross were granted permanent alimony, she would still need to work at least part time because $625 a month alimony and child support will not suffice for a single parent family of five. With a college degree, appellant has a good chance of obtaining employment and the court's order encouraging her to do so was proper. If appellant's health fails, or she has not found a job after five years of diligent effort, the court may reconsider the amount and duration of rehabilitative alimony. In five years, Mrs. Cross's youngest child will be twelve years old and, therefore, will not impede her employment opportunities.

II

The next issue raised is whether the new 1986 West Virginia legislation governing equitable distribution of marital property is to be retroactively applied to a divorce decree that preceded its enactment. ⁵ The divorce decree in this proceeding was entered in November, 1985 and the new legislation that specifically includes "a pension or retirement program" as earnings or marital property did not become effective until 1986. ⁶ We find, however, that the 1986 Amendment simply clarified the law as it existed under earlier Code provisions and our case of LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983).

W.Va.Code, 48-2-1 [1984] and W.Va.Code, 48-2-32 [1984], in effect at the time of divorce, did not specifically mention pension plans; nonetheless, these two Code sections were broad enough in their general provisions to encompass pension plans. See, Larue v. Larue, supra. Therefore, the circuit court erred in not considering appellee's state teachers' pension account when equitably distributing the marital assets between the parties.

III

Appellant assigns as error the circuit court's failure to award her one-half of the present value or proportional future benefits of Gary Cross' teachers' pension. Since this Court's decision in LaRue, supra, the equitable concept that each marital partner should receive the benefit of his or her contributions toward the accumulated assets of the marriage has been the focus of a court in distributing marital property....