Hassan G. v. Tamra P.
| Citation | 853 S.E.2d 577 |
| Decision Date | 06 November 2020 |
| Docket Number | No. 19-0591,19-0591 |
| Parties | HASSAN G., Petitioner Below, Petitioner v. TAMRA P., Respondent Below, Respondent |
| Court | Supreme Court of West Virginia |
James T. Cooper, Esq., Law Office of James T. Cooper, Charleston, West Virginia, Counsel for Petitioner Hassan G.
Erica N. Lord, Esq., Hardy Pence PLLC, Charleston, West Virginia, Counsel for Respondent Tamra P.
Hassan G. (petitioner herein) appeals the May 29, 2020, "Final Order Refusing Appeal" of the Circuit Court of Kanawha County that affirmed the June 21, 2018, "Final Order" of the Family Court of Kanawha County.1 In its order, the family court refused the petitioner's motion for a downward modification of his monthly child support obligation to Tamra P. (respondent herein) for the benefit of their three children.
Having reviewed the parties’ arguments, the appendix record on appeal, and the pertinent legal authorities, we affirm the portion of the circuit court's order that left unchanged the amount of income attributed to the petitioner in the parties’ original child support order. However, we reverse the circuit court's order insomuch as it and the family court failed to modify child support based upon the fact that two of the parties’ children now reside with the petitioner and his family instead of the respondent, and that the respondent's income has substantially increased since the entry of the child support order. Accordingly, we affirm, in part, reverse, in part, and remand this case to the family court for further proceedings consistent with this opinion.
The petitioner and the respondent were married in 2000 and were divorced by a bifurcated divorce order entered in 2008. The respondent was named the primary residential parent of the parties’ three minor children, Z.G.-1, Z.G.-2, and Z.G.-3.
During the family court proceedings to determine an award of child support, the petitioner represented that he was unemployed and had no income whatsoever. He denied having any salary, wages, commissions, bonuses, investments, or revenue from any source. However, after taking evidence, the family court determined that the petitioner was working for his father at a real estate business owned by his parents, including showing real estate, supervising work crews, and negotiating with prospective tenants. The family court also found that the petitioner had income in the form of "loans" from his family and the family business which he was not required to repay, and that his family and the family business provided him with food, housing, a vehicle, clothing, a vacation, and the use of credit cards. Furthermore, the family court determined that the petitioner had voluntarily separated himself from the ownership of a car wash business that had sales of $12,000 per month. After considering the evidence, the family court concluded that this was an appropriate situation to attribute income to the petitioner.2
The family court concluded that the work the petitioner was performing for his father and the family business was the equivalent of real estate management work for which the federal Bureau of Labor Statistics estimated a value of $7,200 per month. Adding this figure to the monthly income of the car wash business, the family court attributed the petitioner with a gross income of $19,000 per month. At the time, the respondent's gross monthly income was $2,917.00 from a daycare business she owned. Using these figures to calculate child support,3 the family court entered its February 22, 2010, order directing the petitioner to pay the respondent $2,890.46 per month in child support until a child attains the age of eighteen years.4
The petitioner then appealed to circuit court, arguing inter alia that the amount of attributed income was excessive and unsupported by the evidence. The circuit court ruled in the petitioner's favor, but the respondent appealed to this Court. After reviewing the matter, this Court concluded that the family court's findings of fact and inferences were supported by substantial evidence and that the circuit court had impermissibly substituted its judgment for that of the family court. Accordingly, on April 1, 2011, our Court reversed the circuit court's order and remanded the case for reinstatement of the family court's child support award. See Hassan G. v. Tamra P. , No. 101328 (W. Va. Apr. 1, 2011) (memorandum decision).
In the years since the entry of the child support order, the parties have returned to family court several times. The petitioner has repeatedly asserted, unsuccessfully, that he is not financially able to pay $2,890.46 per month. He is significantly behind on his child support payments. Pursuant to an order entered on December 16, 2016, the petitioner was required to make an additional monthly payment of $712.42 toward his child support arrearages for a total payment of $3,602.88 per month. His failure to pay, or fully pay, his monthly child support has resulted in his incarceration for contempt on multiple occasions; the petitioner reports that he has had to obtain money from family and friends to purge the contempt. As of May 2018, the petitioner owed the respondent more than $250,000 in principal and interest on his child support arrearages.
On February 20, 2018, the petitioner filed a motion styled "Petition for Modification of Child Support and Parenting Plan" wherein he once again asserted that the amount of income attributed to him was much higher than his actual earnings. He also asserted that a substantial change in circumstances warranted modification because the two oldest children Z.G.-1 and Z.G.-2, who are teenagers, now reside with him or his parents,5 instead of with the respondent, and that the respondent has had a significant increase in income since the entry of the 2010 child support order. The respondent filed an answer to the petition stating that the two oldest children "do not maintain their primary residence with" her "due to extreme undue influence" by the petitioner. She also admitted that her annual income had increased. She denied the remaining assertions.
The family court held a hearing on April 10, 2018, where the parties and their counsel were present. As a result of that hearing, the family court entered an "Interim Order" on May 2, 2018, finding that Z.G.-1 and Z.G.-2 no longer lived with the respondent. The family court found that Z.G.-1 presently maintains his primary residence with the petitioner and the petitioner's parents, and that Z.G.-2 has maintained his primary residence with the petitioner for the prior two and one-half to three years. Nonetheless, the family court refused to modify the parenting plan and child support order because of a Report of Guardian ad Litem that was filed in August 2017.6 In that report, the guardian ad litem ("GAL") at the time, D. Randall Clarke, Esquire, concluded that the petitioner and his relatives had negatively influenced the minor children against the respondent by making derisive comments in their presence. Mr. Clark did not attend or present any evidence during the April 20 hearing, and he was no longer serving as the GAL in the case.7
During the April 20 hearing, the petitioner moved that a GAL be re-appointed and that the family court interview the children in camera , but the family court denied both motions. Citing the GAL's report, the family court found that "any preferences that would be made by the children to the Court in an interview in chambers would not be trustworthy ... and there is nothing to be gained by interviewing the children in chambers."
A hearing regarding the remaining issues in the petitioner's motion to modify child support was held by the family court on May 17, 2018. The petitioner testified that he is currently employed full-time as the general manager of a restaurant that is owned by a corporation that is wholly owned by his mother. He testified that he works long hours and is paid a gross salary of $2,253 a month. He reported that his mother sets his salary based upon the restaurant's sales. This restaurant corporation also pays utilities for his personal residence in the average amount of $500 per month and provides him with food. In addition, his family provides him with the free use of a home that he estimates has a fair market rental value of $1,500. He denies owning any assets. Adding together his salary and the value of the utilities and free rent, the petitioner argues that his gross income is only $4,250 per month. The petitioner testified that approximately one month before the hearing, he began receiving welfare and food stamps.
On cross-examination, the petitioner admitted that he continues to perform some work for his father's rental real estate company. Specifically, when a tenant of his father's company fails to pay rent, the petitioner will sometimes go to magistrate court on his father's behalf. He asserts that he does this only as a favor to his elderly father for no compensation. The respondent presented documentary evidence during the family court's hearing proving two such appearances in magistrate court, but the petitioner readily admitted that there were other instances.
With regard to the change in her income, the respondent testified that she now owns two daycare centers. Her testimony regarding her current income was frequently interrupted and is difficult to follow from a review of the transcript, but she produced her tax returns on the day of the May 17 hearing and these returns were made part of the record. In her 2016 amended federal tax return, she reported a gross income of $106,610, which averages to be $8,884 per month. In her 2017 federal tax return, she reported a gross income of $165,338, which averages to be $13,778 per month. In addition, the appendix record contains an updated "Worksheet A: Basic Shared Parenting" that specifies a gross income for the respondent in the amount of...
To continue reading
Request your trial