Molnar v. Molnar

Decision Date02 March 1984
Docket NumberNo. 15925,15925
PartiesBarney Alex MOLNAR v. Mary Joan MOLNAR.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The concept of "rehabilitative alimony" generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained.

2. A circuit court does have authority to award rehabilitative alimony in an appropriate case.

3. 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.

Charles M. Kincaid, Kirk L. Frankel, Frankel & Kincaid, Huntington, for appellant.

Lafe Chafin, Barrett, Chafin, Lowry & Hampton, Huntington, for appellee.

MILLER, Justice:

Mary Joan Molnar appeals from a final divorce decree of the Circuit Court of Cabell County contending that the court abused its discretion in awarding diminished or rehabilitative alimony. The circuit court awarded $750 a month alimony for five years, $250 a month for two years, and $1 a month thereafter.

The Molnars were married on April 7, 1957, in Perry County, Ohio, and subsequently moved to Huntington, West Virginia. During the twenty-five years of their married life, they raised three children, all of whom are now over eighteen years of age. When this case came to trial, Mrs. Molnar was fifty-three years of age and was living in the marital residence with two of her children.

She worked as an application processor for Appalachian Life Insurance Company and earned a net monthly pay of $438. At trial, she asserted that her monthly expenses, including mortgage payments on the family home, totaled $1,569.80. Her husband, who worked as a general sales manager at a baking company, made $45,600 a year, and had a take-home pay of $2,520 a month. At trial, he claimed that his monthly expenses totaled $961 a month.

Mrs. Molnar testified that she had attempted to find a better paying job, but potential employers showed little interest in her because of her limited skills and advanced age. As a means of increasing her earning power, she had investigated the possibility of obtaining a degree in computer science from Marshall University. Given the fact that she had to work full time, she concluded that the heaviest academic load she could carry would be six hours a semester. At that rate, she would be able to complete the 128 1/2 hour program offered by the university in 10 1/2 years. No evidence was produced at trial concerning her likely earnings as a computer programmer, or whether she would even be able to obtain work in that field at the age of sixty-three.

After hearing both parties, the trial judge made brief oral findings of fact and awarded a divorce based upon irreconcilable differences. 1 The final order, in addition to the award of rehabilitative alimony, gave Mrs. Molnar permanent and exclusive possession of "the furniture, furnishings and appliances located in the parties' marital residence." The record does not disclose the disposition of the marital residence except that there had been some discussion as to selling it. It is jointly owned and is valued at $125,000, with a $36,000 mortgage. Mrs. Molnar contends that limiting the award of alimony to seven years was "unjust and inequitable" in light of her financial needs, advancing age and limited earning power.

I.

We have not had occasion to discuss the concept of "rehabilitative alimony," which generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained. 2 It rests upon the premise that by encouraging the party to become self-reliant, this may alleviate some of the financial problems attendant to a divorce, as well as providing a sense of independence and psychological fulfillment. 3

Rehabilitative alimony has been utilized frequently where a younger dependent spouse entered marriage with marketable skills, which then deteriorated through nonuse, or the dependent spouse evidenced a capability for self-support, which could be developed through training or academic study. In these circumstances, an award of alimony for a limited period of time is provided to give such spouse an opportunity to rehabilitate old skills or acquire new ones.

A number of jurisdictions by statute now allow trial courts to award rehabilitative alimony by permitting them to consider the employment potential of a dependent spouse, along with other factors such as the financial resources of the parties. 4

The same result has been reached by courts that have permitted rehabilitative alimony under general statutes similar to W.Va.Code, 48-2-15 & 16, which confer broad discretion upon courts in granting alimony. 5 See Bussell v. Bussell, 623 P.2d 1221, 1224 (Alaska 1981); Johnson v. Steel, Inc., 94 Nev. 483, 486, 581 P.2d 860, 862 (1978); Lepis v. Lepis, 83 N.J. 139, 155 n.9, 416 A.2d 45, 53 n.9 (1980); Turner v. Turner, 158 N.J.Super. 313, 385 A.2d 1280 (Ch.Div.1978); Warren v. Warren, 655 P.2d 684, 685, 688 (Utah 1982); Endres v. Endres, 62 Wash.2d 55, 380 P.2d 873 (1963).

In several earlier opinions, we have indicated that rehabilitative alimony could be awarded without, however, utilizing the name or extensively discussing its principles. In Dyer v. Tsapis, W.Va., 249 S.E.2d 509, 513 (1978), which involved a divorce based upon voluntary separation, we said:

"If the wife is young but has no occupational skills, the court might provide alimony for a predetermined, limited time to support her while she undergoes vocational training. In the same vein, if the wife is no longer young but able to work at a job which can only help contribute to her support in her customary manner, then alimony can serve to supplement her income. Furthermore, a trial judge should look to the separate estates of the parties along with the ages of the parties, which are important because age reflects upon their ability to work; similarly, the duration of the marriage is important because duration is an index to the opportunity which the wife has foregone by being a housewife."

This language was also quoted in Haynes v. Haynes, W.Va., 264 S.E.2d 474, 475-76 (1980), in which we discussed the award of alimony in cases where divorce is granted on the basis of irreconcilable differences. See also Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977); Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898 (1974).

Those courts which have upheld awards of rehabilitative alimony under general alimony statutes like ours conclude that such statutes confer broad powers to fashion awards of alimony. They reason that unless the statute specifically prohibits rehabilitative alimony, its broadness encompasses the right to award such alimony. We agree with this reasoning and as previously noted have indicated in prior cases that such an award might be made. We, therefore, conclude that a circuit court does have authority to award rehabilitative alimony in an appropriate case.

II.

In determining whether to award rehabilitative alimony, we believe that a key ingredient must be a realistic assessment of the dependent spouse's potential work skills and the availability of a relevant job market. We stressed the age and health factors in Dyer, not only because they reflect the ability to work but because they become an important factor in job availability. Many employers are reluctant to hire an older person because of potential exposure to increased health and pension costs. Furthermore, the cost of training an older employee cannot be amortized over as many years as with a younger person.

In both Dyer and Haynes, we summarized these six criteria relating to the setting of alimony from Section 308(b) of the Uniform Marriage and Divorce Act, reprinted in 5 Fam.L.Q. 205 (1971): (1) the financial resources of the parties, (2) the time necessary for the dependent spouse to acquire job skills, (3) the parties' accustomed standard of living, (4) the duration of the marriage, (5) the age and health of the dependent spouse, and (6) the needs of the supporting spouse. 6

These factors are somewhat analogous to those contained in W.Va.Code, 48-2-16. 7 Furthermore, our cases reflect that in addition to statutory criteria, we have considered the age and health of the parties, their standard of living, and the duration of the marriage in determining the amount of alimony awards. See Yanero v. Yanero, W.Va., 297 S.E.2d 863 (1982); Purnell v. Purnell, W.Va., 280 S.E.2d 281 (1981); Haynes v. Haynes, supra; Zinn v. Zinn, W.Va., 260 S.E.2d 844 (1979); Dyer v. Tsapis, supra; Corbin v. Corbin, supra; Reynolds v. Reynolds, 72 W.Va. 349, 78 S.E. 360 (1913); Henrie v. Henrie, 71 W.Va. 131, 76 S.E. 837 (1912). Finally, we believe some recognition must be given with regard to rehabilitative alimony as to whether there are minor children who are living with the dependent spouse. Oppenheimer v. Oppenheimer, 22 Ariz.App. 238, 242, 526 P.2d 762, 766 (1974); McNaughton v. McNaughton, 332 So.2d 673, 675 (Fla.App.1976), cert. denied, 345 So.2d 424 (Fla.1977); In Re Marriage of Dowie, 215 N.W.2d 276 (Iowa 1974); Johnson v. Steel, Inc., 94 Nev. 483, 487, 581 P.2d 860, 863 (1978).

In both Dyer and Haynes, we mentioned the time necessary for the dependent spouse to acquire job skills. Obviously, rehabilitative alimony should not terminate before the dependent spouse can reasonably be expected to acquire the necessary job skills. Consideration must also be given to the cost of...

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