Hillberry v. Hillberry

• Decision Date: 08 December 1995
• Docket Number: No. 22864,22864
• Citation: 466 S.E.2d 451,195 W.Va. 600
• Court: West Virginia Supreme Court
• Parties: David Arthur HILLBERRY, Plaintiff Below, Appellee, v. Daisy Mae HILLBERRY, Defendant Below, Appellant.

Page 451

466 S.E.2d 451

195 W.Va. 600

David Arthur HILLBERRY, Plaintiff Below, Appellee, v. Daisy Mae HILLBERRY, Defendant Below, Appellant.

No. 22864.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 27, 1995.

Decided Dec. 8, 1995.

Syllabus by the Court

1. "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." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., No. 22084, 195 W.Va. 384, 465 S.E.2d 841 (W.Va. March 6, 1995).

2. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

3. "In determining the amount of alimony or child support that may be obtained, consideration may be given not only to regular wages earned, but also to the amount of overtime pay ordinarily obtained." Syl. Pt. 1, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992)

4. " '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 conviction 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 of misconduct as a contributing factor to the deterioration of the marital relationship.' Syllabus point 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992)" Syl. Pt. 1, Durnell v. Durnell, 194 W.Va. 464, 460 S.E.2d 710 (1995).

Appeal from the Circuit Court of Monongalia County, Honorable John M. Hamilton, Circuit Judge, Civil Action No. 93-C-276.

Patricia Tolle Hill, Hill and Associates, Morgantown, for Appellee.

Appellant appearing Pro Se.

PER CURIAM:

This is an appeal by Daisy M. Bennett, formerly Daisy M. Hillberry (hereinafter "the Appellant"), from an October 18, 1994, order of the Circuit Court of Monongalia County reducing alimony from $1900 to $1200 per month, requiring neither party to pay the other party's attorney fees, and ordering distribution of marital property as previously designated by the family law master. The Appellant contends that the lower court abused its discretion in reducing the alimony recommended by the family law master and in failing to require her former husband, Appellee David A. Hillberry (hereinafter "the Appellee"), to pay her attorney fees, as recommended by the family law master. Further, the Appellant maintains that both the family law master and the lower court erred in the computation and distribution of marital assets. We find that the lower court erred in reversing the family law master's decision on the issues of attorney's fees and alimony.

I.

On April 15, 1993, the Appellee initiated divorce proceedings against the Appellant. ¹ During a May 3, 1994, hearing before the family law master, evidence was presented by both parties on the Appellant's allegations of cruel and inhuman treatment and adultery, alimony, equitable distribution, and attorney fees. Based upon such evidence, the family law master concluded that there was insufficient evidence to grant a divorce on the grounds of cruel and inhuman treatment or adultery; that the Appellant should receive $1900 per month in alimony; that the Appellee should pay $5000 of the Appellant's attorney fees; that the marital property should be evenly divided; and that the Appellant should assume one-half of an $11,296 marital debt to the Appellee's mother for a loan obtained for the purchase of the parties' home. The divorce was granted, pursuant to West Virginia Code § 48-2-4(a)(7) (1995), on the basis of the parties having lived separate and apart for one year. The family law master's recommendation regarding the amount of alimony was based upon his determination that although the Appellant possessed skills necessary for gainful employment (although not in economic parity with the Appellee), she was unable to maintain employment based upon her lack of self-esteem due to an auto-immune disease causing permanent loss of hair, allergies to metals and certain fabrics, and other physical problems. The family law master stated as follows:

The Defendant has the capability to work, but the jobs she could work at given her age would in no way be sufficient to obtain parity in economic income with her husband. The loss of hair is an added debilitating factor which at this time is of much concern and has great emotional impact to the Defendant. The court finds that at this time she has no ability to enter into the job market.

Subsequent to a brief hearing on October 18, 1994, the lower court reduced alimony from $1900 to $1200, based primarily upon the lower court's conclusion that the Appellant had the ability to enter the job market and maintain employment. The lower court stated that the family law master's finding that the Appellant could not enter the job market was in error. The lower court found that the Appellant was a high school graduate, had twelve hours of college credit, and was fully capable of performing secretarial and other office and clerical duties. The lower court also altered the family law master's recommendation by finding neither party responsible for the attorney fees of the other party. In all other respects, the lower court adopted the findings and conclusions of the family law master.

II. Standard of Review

We recently addressed the standard of review for a circuit court in a divorce proceeding where a family law master has taken evidence and ruled on the matters pending before him. Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995). In syllabus point one of Stephen L.H., we explained that "[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." Id. at 386, 465 S.E.2d at 843. In syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), we explained the following:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Id. at 264, 460 S.E.2d at 265.

Adultery

Neither the lower court nor the family law master in the present case found the alleged adultery of the Appellee to have been sufficiently proven to serve as the grounds for granting a divorce. Pursuant to Whitmire v. Whitmire, 175 W.Va. 461, 462, 334 S.E.2d 598, 599 (1985), the adulterous conduct, in order to be pursued as a cause of dissolution or a factor in alimony, must have occurred before the suit to dissolve the marriage was filed. The Appellant's evidence of adultery prior to the filing of the divorce complaint was inconclusive at best. ² As we stated above, underlying factual findings of a lower court are to be reviewed under a clearly erroneous standard pursuant to our recent opinion in Burnside. See Syl. Pt. 1, 194 W.Va. at 264, 460 S.E.2d at 265. We do not find the determination of the lower court regarding the evidence of adultery as a ground for divorce to be clearly erroneous.

Alimony

In the present case, the family law master recommended alimony to the Appellant in the amount of $1900 per month. The lower court reduced the alimony from $1900 to $1200 per month, based upon the allegation that the Appellant could earn approximately $8000 annually and that $1900 in alimony was unduly burdensome upon the Appellee. The lower court noted that the Appellee's gross monthly income in each of the first three months of 1994 was approximately $4148.73, which included substantial overtime in February 1994. The Appellee presented evidence indicating that his gross monthly salary in 1993 was $3953.83, which also included overtime pay. The court emphasized that even if the family law master's findings regarding the Appellant's inability to work were correct, the $1900 alimony would be excessive based upon the income and expenses of each party, especially in future months where the Appellee might receive less overtime pay. ³ Appellant alleges error in the reduction of alimony, contending she should be entitled to the amount recommended by the family law master both from an economic standpoint, and in the context of the relative fault of the parties.

We have specifically recognized that overtime pay regularly received is to be considered in determining alimony payments. In syllabus point one of Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992), we explained that "[i]n determining the amount of alimony or child support that may be obtained, consideration may be given not only to regular wages earned, but also to the amount of overtime pay ordinarily obtained." Id. at 697, 414 S.E.2d at 458. In the present case, evidence of the overtime pay regularly received by the Appellee for a period of one and one-half years prior to the hearing was sufficient for the family law master to conclude that such overtime was ordinarily obtained, and...