Donna Kaye M. v. Justin Elliot M.

• Decision Date: 05 July 1996
• Docket Number: No. 22968,22968
• Citation: 475 S.E.2d 356,197 W.Va. 264
• Court: West Virginia Supreme Court
• Parties: DONNA KAYE M., Plaintiff Below, Appellant, v. JUSTIN ELLIOT M., Defendant Below, Appellee.

Page 356

475 S.E.2d 356

197 W.Va. 264

DONNA KAYE M., Plaintiff Below, Appellant, v. JUSTIN ELLIOT M., Defendant Below, Appellee.

No. 22968.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1996.

Decided July 5, 1996.

Syllabus by the Court

1. "When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development." Syl. pt. 2, South Side Lumber Co. v. Stone Construction Co., 151 W.Va. 439, 152 S.E.2d 721 (1967).

2. "Where a circuit court finds that all or portions of the audio tape taken at the family law master's hearing are inaudible and that the inaudible portions are essential to the resolution of the petition for review, the circuit court may utilize the provisions of W.Va.Code, 48A-4-10(d) (1990), or of Rule 80(e) of the West Virginia Rules of Civil Procedure to obtain the missing evidence." Syl. pt. 10, State ex rel. Sullivan v. Watt, 187 W.Va. 447, 419 S.E.2d 708 (1992).

Jane Charnock, Charnock and Charnock, Charleston, for Appellant.

Rebecca M. Bell, Bell & Griffith, L.C., Princeton, for Appellee.

PER CURIAM:

This action is before this Court upon appeal from the final order of the Circuit Court of Wyoming County, West Virginia, entered on November 15, 1994. The action concerns litigation between the appellant, Donna Kaye M., and the appellee, Justin Elliot M., in the aftermath of their 1990 divorce. ¹ According to the appellant, the circuit court committed error in declining to adopt the recommendations of the family law master concerning certain expenses she incurred for child support and also committed error with regard to certain issues concerning equitable distribution.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the final order of the circuit court is affirmed, in part, reversed, in part, and this action is remanded to that court for further proceedings.

I

The convoluted procedural history of this litigation and the delay in the filing of the audio tapes of hearings conducted by the family law master, and the inadequacy of those tapes, have made our review in this action somewhat difficult. Accordingly, this Court has carefully reviewed the audio tapes and thoroughly examined the exhibits and other matters of record in order to discern the details and circumstances surrounding the respective assertions of the parties.

The parties were married in 1971 and were residing in Wyoming County in 1990 when the appellant instituted divorce proceedings based upon irreconcilable differences. W.Va.Code, 48-2-4 [1981]. A son and daughter were born of the marriage, and the son, over the age of 18, is not involved in this litigation. The daughter, born in 1976, is currently married and emancipated from the parties.

The divorce decree, entered on November 2, 1990, incorporated the parties' property settlement agreement and provided that custody of the daughter, then age 14, would be awarded to the appellant. The appellee was required to pay $300 per month in child support for his daughter pursuant to this State's child support guidelines. See W.Va.Code, 48A-2-17 [1995], and W.Va.Code of State Rules, 78-16-1, et seq. The appellee was also required to pay the child's medical expenses. The appellee was given possession of the parties' house and lot, which the parties were permitted to sell "at any time," the proceeds from which sale would be divided equally. In addition, the appellee's stock holdings, acquired through his employment with Norfolk & Western Railway Company were to be held in a joint account "until sold," the proceeds from which sale would also be divided equally. Finally, as reflected in the divorce decree, the parties waived alimony.

Importantly, the divorce decree made no reference to the appellee's Norfolk & Western Railway Company pension. Nor did it mention a back wage award obtained by the appellee from that employer. Although the evidence in the record does not disclose the exact amounts received by the appellee with regard to either the pension or the back wage award, the appellant asserted below that she was entitled to $15,000 with regard to the appellee's pension and $7,500 with regard to the back wage claim. More specific findings as to those amounts will need to be made by the circuit court upon the remand of this action.

Following the 1990 divorce, the daughter, who had been staying with the appellee, lived with the appellant until October 1992 and, thereafter, chose to return to the appellee's residence until her marriage and emancipation. After the divorce decree, the parties filed various petitions for contempt concerning visitation and the payment of child support. Those petitions were generally resolved by agreement of the parties. In addition, the appellee filed a petition for a change of custody. In October 1992, however, the circuit court entered an order confirming the appellant's award of custody of her daughter. Throughout this litigation, legal custody of the daughter has remained with the appellant.

The evidence submitted by the appellant below indicated that, following the divorce, the daughter developed a number of problems while residing with the appellee. According to the appellant, her daughter, while residing with the appellee, experienced failing grades in school and a substantial number of unexcused school absences. In addition, she was arrested for shoplifting and became pregnant. Moreover, although not necessarily attributable to the appellee, a psychological report submitted by the appellant suggested that her daughter had a propensity toward illegal drug and alcohol use. According to the appellant, she left her employment in order to provide her daughter increased supervised care. The appellant's evidence indicated that, while residing with the appellant, her daughter's grades and school attendance improved, and she achieved a more stable psychological condition through counseling. On the other hand, the appellee denied that his daughter had developed problems while residing with him and stated that his daughter had expressed a desire to live with her father.

In the litigation below, the appellant sought recovery for a number of expenses concerning her daughter beyond the amounts the appellee had been paying for child support. Specifically, the appellant asserted before the family law master that she was entitled to $868 for medical expenses, $186.80 for court costs and $3,000 for attorney fees. Those expenses, totaling $4,054.80, were confirmed by the family law master and awarded by the circuit court pursuant to the November 15, 1994, final order. Those expenses are not contested in this appeal, and the final order of the circuit court, in that regard, is therefore affirmed.

In addition, however, the appellant asserted before the family law master that she was entitled to $16,167 for lost wages, $405 for travel expenses, $3,900 for automobile expenses and $100 for her daughter's summer school tuition. In addition, the appellant asserted before the family law master that she was entitled to an equitable distribution of those items not mentioned in the 1990 divorce decree, i.e., the appellee's Norfolk & Western Railway Company pension and the appellee's back wage award obtained by the appellee from that employer. According to the appellant, the appellee had "concealed marital assets" during the original divorce proceedings.

In November 1993, the family law master recommended that the appellant recover the $4,054.80, as stated above. In addition, the family law master recommended that the appellant recover the other expenses listed above and also receive an equitable distribution of the appellee's railway pension and back wage award. Moreover, the family law master noted that the appellant was unemployed and should retain custody of her daughter.

As stated above, the circuit court in the final order of November 15, 1994, awarded the $4,054.80 in expenses to the appellant. The circuit court, however, disallowed the remaining listed expenses and also disallowed the appellant's request for equitable distribution of the Norfolk & Western Railway Company pension and the appellee's back wage claim. The circuit court based its denial of relief concerning the expenses and the equitable distribution claims upon its conclusion that, beyond the $4,054.80 awarded, the divorce decree had settled all matters between the parties. Furthermore, the circuit court determined that the issues of custody and further child support were moot, in view of the daughter's marriage and emancipation.

II

This Court has often observed that a recommended order of a family law master is reviewable by a circuit court pursuant to statute, W. Va.Code, 48A-4-16 [1993], W. Va.Code, 48A-4-20 [1993], and pursuant to this Court's Rules of Practice and Procedure for Family Law. As we recently stated in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995): "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 also syl. pt. 1, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996). With regard to findings of fact, in particular, we noted in syllabus point 3 of Stephen L.H.: "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." See also syl. pt. 1, Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789 (1993). Of course, the final order of a circuit court in such cases is reviewable by ...