Kapfer v. Kapfer

Decision Date29 May 1992
Docket NumberNo. 20674,20674
Citation187 W.Va. 396,419 S.E.2d 464
PartiesShelly Kiraly KAPFER, Plaintiff Below, Appellant, v. Louis Andrew KAPFER, Defendant Below, Appellee.
CourtWest Virginia Supreme Court

Syllabus by the Court

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." Syllabus Point 3, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

2. "W.Va.Code, 48-2-1(e)(1) (1986), defining all property acquired during the marriage as marital property except for certain limited categories of property which are considered separate or nonmarital, expresses a marked preference for characterizing the property of the parties to a divorce action as marital property." Syllabus Point 3, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

3. "The purpose of W.Va.Code, 48-2-13(a)(4) (1986), is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees during the course of the litigation." Syllabus Point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

Delby B. Pool, Clarksburg, for appellant.

Douglas A. Cornelius, Clarksburg, for appellee.

PER CURIAM:

Shelly Kiraly Kapfer appeals the final order of the Circuit Court of Harrison County that granted her a divorce from Louis Andrew Kapfer on the grounds of irreconcilable difference, distributed property and awarded her alimony. On appeal, Mrs. Kapfer contends that the circuit court awarded an inadequate amount of alimony, failed to evaluate certain property, improperly allowed Mr. Kapfer to recoup all principal paid on the mortgage of the marital home after the date of separation, and failed to award her attorney's fees. Because we agree that the circuit court erred in some of these matters, we reverse the circuit court.

After twenty-three years of marriage, Mr. and Mrs. Kapfer separated on October 29, 1986 and divorced on May 14, 1990 on the grounds of irreconcilable differences. 1 During the early course of the marriage Mrs. Kapfer worked as executive secretary, but in 1972 after the parties moved to West Virginia, Mrs. Kapfer became a full-time homemaker. The Kapfers have no children. Mr. Kapfer is a petroleum engineer who has worked for the same company since May 1967. In addition to the marital home, the parties' major asset consists of stock shares in the company for which Mr. Kapfer works.

The matter was heard by a family law master and her recommendations were adopted by Circuit Court of Harrison County. The circuit court awarded Mrs. Kapfer the following alimony: $2500 payable within 30 days of the order, $1200 per month for 6 months and thereafter $500 per month. Mrs. Kapfer was awarded one half of Mr. Kapfer's monthly pension benefit accrued to November 1, 1986 or about $411 per month with payments to commence in January 1992. The circuit court ordered that stock shares be divided equally but allowed Mr. Kapfer to select the stock shares to be transferred to Mrs. Kapfer. Although the circuit court ordered the marital home sold with net sale proceeds to be equally divided, Mr. Kapfer was to be reimbursed for all principal he paid on the mortgage after the date of separation. The circuit court also required each party to pay his or her own attorney's fees.

On appeal, Mrs. Kapfer alleges that the circuit court erred in its award of alimony, failed to classify and to evaluate certain property correctly, improperly awarded Mr. Kapfer credit for principal paid on the marital home's mortgage after the date of separation and failed to award Mrs. Kapfer her attorney's fees.

I

Mrs. Kapfer alleges that the circuit court's award of alimony was inadequate because of insufficient current income information and that given her age and health, the circuit court erred in granting rehabilitative alimony.

W.Va.Code, 48-2-16(b)(3) [1984], requires that "[t]he present employment income and other recurring earnings of each party from any source ..." be considered in determining the amount of alimony. 2 Although the parties separated on October 29, 1986, the hearing before the family law master was not held until February 14, 1989 and the circuit court finally adopted the family law master's recommendations on October 22, 1990. According to the record, Mr. Kapfer's income up to the first part of 1987 was the only employment income information available to the family law master and the circuit court. The record also contains Mr. Kapfer's pay stub for February 15, 1989; however, this information was not disclosed until a March 7, 1991 hearing before the circuit court. 3

In addition to a salary, Mr. Kapfer apparently receives compensation from an employee stock option plan. In 1984 the parties' total income was $57,231.59; in 1985, the parties' total income jumped to $114,688 and in 1986, the parties' total income was $96,257. Mr. Kapfer's 1989 pay stub indicated that his annual salary was about $64,000. Because Mr. Kapfer's income varied depending on the stock option plan, a complete disclosure of his income is necessary to determine what income is available for alimony. To the extent that the stock from the employee stock option plan is part of the assets for distribution, the value of the stock shares should not be considered as income in order to avoid duplication. See infra Section II.

Mrs. Kapfer also maintains that Mr. Kapfer's deferred compensation and credit union savings were not disclosed and were not considered in the determination of alimony. Although these voluntary deductions from Mr. Kapfer's income were specified in the record, the information was not current. Because of the lack of current financial information, we are unable to determine if the award of alimony is inadequate and we remand this case for further development of this issue.

Mrs. Kapfer also alleges that given her health and age, rehabilitative alimony should not have been granted. Although Mrs. Kapfer was awarded permanent alimony of $500 per month, she was also awarded rehabilitative alimony to pay for retraining ($2,500) and to support her during retraining ($1,200 per month for 6 months). 4 In Syllabus Point 3, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984), we required a broad inquiry to be made concerning rehabilitative alimony:

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.

See Bettinger v. Bettinger, 183 W.Va. 528, 542, 396 S.E.2d 709, 723 (1990).

In the present case the record shows that Mrs. Kapfer was trained and employed as an executive secretary; however, her last employment was in 1972 and she is now 51 years old. Mrs. Kapfer said she is willing to work and in 1989 estimated the cost of retraining to be $4,300 for a 10 month course. 5 Although Mrs. Kapfer is willing to return to employment, her desire and the award of some of the retraining costs do not automatically equal an employed person with a minimal need for support. In Bettinger at 542, 396 S.E.2d at 723, we noted that "[w]hile rehabilitative alimony may be ideally suited to a young spouse, it is less suited to an older person who may find his or her age a limitation in a skilled job market."

" 'Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.' Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977)." Syllabus, Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985).

Syllabus Point 8, Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990).

Given Mrs. Kapfer's age and health problems, we are not satisfied that the circuit court properly considered the award of rehabilitative alimony. In Molnar, we recognized that in an appropriate case the court should continue jurisdiction to reconsider the duration and amount of alimony. If on remand, the circuit court should decide that rehabilitative alimony is appropriate, the court should continue its jurisdiction to reevaluate Mrs. Kapfer's employment status after retraining.

In summary, we reverse the circuit court's alimony award and remand the case to develop further the record on current employment income and to reevaluate the rehabilitative alimony award.

II

On appeal Mrs. Kapfer contends that the circuit court failed to classify and to evaluate certain property correctly. Specifically Mrs. Kapfer maintains that the 1985 Buick should have been classified as her separate property, that the future stock options should have been classified as marital property and that the stock shares were not evaluated.

In Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), we noted that under W.Va.Code 48-2-32 [1984], equitable distribution is a three step process: classification, evaluation and division. In the present case, Mrs. Kapfer raises two objections concerning the circuit court's classification of property, namely the classification of an automobile as marital property and the failure to classify certain future stock options.

In classifying property as separate or marital, the legislature has indicated a preference for...

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