Holley v. Holley

• Decision Date: 21 July 1989
• Docket Number: No. 18671,18671
• Citation: 181 W.Va. 396,382 S.E.2d 590
• Court: West Virginia Supreme Court
• Parties: Annetta Louise HOLLEY v. Randy Allen HOLLEY.

Page 590

382 S.E.2d 590

181 W.Va. 396

Annetta Louise HOLLEY v. Randy Allen HOLLEY.

No. 18671.

Supreme Court of Appeals of West Virginia.

July 21, 1989.

Syllabus by the Court

When a family law master or a circuit court enters an order awarding or modifying child support, the amount of the child support shall be in accordance with the established state guidelines, set forth in 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20 (1988), unless the master or the court sets forth, in writing, specific reasons for not following the guidelines in the particular case involved. W.Va.Code, 48A-2-8(a), as amended.

James A. Dodrill, Huntington, for Annetta Louise Holley.

Randy Allen Holley, Huntington, for Randy Allen Holley.

McHUGH, Justice:

This appeal raises a narrow question as to the responsibilities of a trial court or of a family law master when deciding the amount of child support. Believing that the trial court here failed to follow certain statutory requirements in this regard, we reverse and remand.

I

The appellant, Annetta Louise Holley, and the appellee, Randy Allen Holley, were divorced in January, 1986, by the Circuit Court of Cabell County, West Virginia ("the trial court"). The appellant was awarded custody of the parties' two minor children and, as an incident thereto, the exclusive possession of the marital home until the younger child reaches eighteen years of age. The divorce decree provided that the parties were to divide equally the costs of all major repairs to the marital home. Under the divorce decree the appellee was to pay to the appellant $250.00 per month as child support, commencing two years from the date of the decree, that is, in January, 1988.

After the divorce decree was entered, the marital home "fell into a state of disrepair," and the appellant was "forced" to move from the marital home because the appellee had failed or refused to comply with the requirement of the divorce decree that he share equally, with the appellant, the costs of all major repairs to the marital home. Upon moving from the marital home the appellant and the children resided for awhile with the appellant's parents. Upon the appellant's petition for modification of the divorce decree, the trial court, by an order entered in June, 1987, directed the appellee to begin paying $100.00 per month to the appellant as child support as of June 1, 1987, to be increased to $250.00 per month as of November 1, 1987. By the same order the trial court changed the possession of the marital home to the appellee.

In February, 1988, the appellant obtained an apartment for herself and the two children, at a monthly rental rate of $250.00. As a result thereof, the appellant's monthly expenses exceeded her monthly income. Consequently, in March, 1988, the appellant petitioned again for modification of the divorce decree to obtain an increase in the amount of monthly child support from the appellee. The family law master recused himself for just cause, and the trial court conducted a hearing on the appellant's petition for modification. No evidence was adduced at this hearing; the trial court heard only the arguments of counsel.

By an order entered in May, 1988, the trial court increased the monthly child support total by only $20.00 per month, to $270.00 per month. The court found that the amount of the appellant's apartment rent was reasonable under the circumstances. Despite expressing that it was "questionable" whether there had been a showing of a material, uncontemplated change of circumstances justifying a modification of child support, the trial court did find that the amount of child support should be increased by the amount aforesaid. ¹

In its order the trial court stated: "That under the circumstances of this case, the formula mandated under the Guidelines for Child Support Awards is not applicable, and the Court, therefore, elects not to use the formula." The appellant timely objected to the ruling of the trial court limiting the increase in child support to $20 more a month, including the trial court's failure to follow such guidelines. Computation of the amount of child support under the guidelines indicated to the trial court that the appellant should be entitled to $529.07 per month total child support.

II

While the trial court expressed some reservations in ordering any increase in the amount of child support, it did award an increase. Therefore, the only question fairly raised on this record pertains to the amount of child support to which the appellant is entitled.

Effective October 1, 1987, federal law requires each state to establish guidelines for amounts of awards of child support. The guidelines may be established by statute or by judicial or administrative action. 42 U.S.C. § 667 (Supp. IV 1986). See also 45 C.F.R. § 302.56 (1988). ²

W.Va.Code, 48A-2-8(a) [1986] required the director of the child advocate office, within the West Virginia Department of Human Services, to establish, by legislative rule, guidelines for child support award amounts. The current version of such legislative rules, effective May 2, 1988, is set forth in 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20. W.VA.CODE, 48A-2-8(A)³ [1986] implicitly provided for a rebuttable presumption that the amount of the award of child support which would result from the application of such guidelines is the correct amount of child support to be awarded: "Such guidelines shall be followed by the children's advocate, the family law master and the circuit court unless, in each instance, the advocate, master or judge sets forth, in writing, reasons for not following the guidelines in the particular case involved." (emphasis added) ⁴

Likewise, the guidelines themselves refer to when the formula therein may be disregarded. If, after computing the amount of a child support award in accordance with the guidelines, the family law master or circuit court determines that the application of the support guidelines "are inappropriate as being contrary to the best interests of the children and the parties," the master or court "may disregard the formula and not follow the guidelines. In such instance, the court or master shall set forth, in writing, the reasons for not following the guidelines in the particular case involved." 6 W.Va.Code of State Rules § 78-16-19 (1988). ⁵

Section 2.5 of the prior version of the guidelines stated that "the Melson formula," devised by a Delaware judge and used in that state, is the basis for the guidelines established for the State of West Virginia. The Melson formula is also the basis for the current version of the guidelines. In a very recent case the Supreme Court of...