Moss v. Bonnell

Decision Date12 December 1991
Docket NumberNo. 20061,20061
Citation412 S.E.2d 495,186 W.Va. 301
CourtWest Virginia Supreme Court
PartiesCalvin E. MOSS, Sr., Appellee, v. Kathleen BONNELL, Appellant.

Syllabus by the Court

1. "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 established state guidelines, set forth in 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20 (1988)." Syllabus, in part, Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989).

2. "In order to facilitate appellate review of child support recommendations or orders, family law masters and/or circuit court judges must include as part of the record the worksheets reflecting the actual calculations which result from the application of the child support guidelines to the facts of a particular case." Syllabus Point 2, Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990).

3. "A cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to cooperate in reaching shared decisions in matters affecting the child's welfare." Syllabus Point 4, Lowe v. Lowe, 179 W.Va. 536, 370 S.E.2d 731 (1988).

4. "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 [incurred] [sic] during the course of the litigation." Syllabus Point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

5. "The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments." Syllabus Point 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

James M. Cagle, Charleston, for appellant.

Douglas B. Hunt, Hunt & Powell, Charleston, for appellee.

PER CURIAM:

Kathleen Bonnell appeals the final order of the Circuit Court of Kanawha County that modified the final divorce order between her and Calvin E. Moss, Sr., by reducing child support and changing visitation. On appeal, Mrs. Bonnell contends that the circuit court erred by failing to consider the child support guidelines when he reduced the child support paid by Mr. Moss from $100 to $50 per month, by expanding Mr. Moss's visitation rights, by awarding Mr. Moss, a nonlawyer acting pro se, $200 for costs and legal expenses, by holding Mrs. Bonnell in contempt of court and fining her $100 and by dismissing all other matters concerning the subject matter. In light of our holdings in Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990) and Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989), we reverse the circuit court and remand the case.

The parties were divorced on June 21, 1989 after a sixteen year marriage. The final divorce order awarded Mrs. Bonnell custody of the parties' only son, Calvin, Jr., who was then 12 years old, required Mr. Moss to pay $100 per month in child support and allowed Mr. Moss to have visitation every other weekend plus specific vacations and holidays. Shortly after the divorce, both parties remarried. The circuit court's order indicates that Mr. and Mrs. Bonnell have an approximate annual income of $42,500, and Mr. and Mrs. Moss with another son and an another child due in April 1990 have an approximate annual income of $21,000. No other financial information was provided in the record.

After the divorce, the parties continued to disagree in numerous areas including visitation and child support. 1 Mr. Moss contends that Mrs. Bonnell refused to allow him to visit with his son for several months and in December 1989, he filed contempt charges. Mrs. Bonnell contends that Mr. Moss failed to pay child support for at least two months and in February 1990, she with help from the child advocate office attempted to institute wage withholding for the child support arrearage.

The matter was referred to a family law master who recommended that visitation be modified to give the child the option to end visitation after four (4) hours.

Both parties petitioned the circuit court to review the recommended decision. Mrs. Bonnell requested the review because the family law master held the child support arrearage problem in abeyance until the resolution of visitation and Mr. Moss requested the review to reduce his child support obligation. After a hearing 2, the circuit court issued an order dated April 10, 1990 that: (1) reduced Mr. Moss's child support payment from $100 to $50 per month, (2) expanded Mr. Moss's visitation to every weekend and half the vacations and holidays, (3) awarded Mr. Moss $200 for his costs and legal expenses, (4) fined Mrs. Bonnell $100 based on a finding of contempt, and (5) dismissed all other pending matters. By supplemental order dated April 16, 1990 the circuit court "put ... back in place the every other weekend 'concept' which had been previously ordered...."

Alleging problems with almost all aspects of the circuit court's order, Mrs. Bonnell appealed to this Court. Because we find merit in Mrs. Bonnell's appeal, we reverse the order of the circuit court and remand the case.

I

"The child support guidelines must be considered in every case concerning child support." Wood v. Wood, 184 W.Va. 744, 403 S.E.2d 761, 765 (1991); Gardner, supra; Syllabus Point 4, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991); Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990); Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990); Holley, supra. W.Va.Code, 48A-2-8(e) [1989], requires that the child support "guidelines shall have application to cases of divorce, paternity, actions for support, and modifications thereof." In Holley, supra, our first case addressing the importance of following the child support guidelines, we said:

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 established state guidelines, set forth in 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20 (1988).

Syllabus, in part, Holley, supra.

As directed by W.Va.Code, 48A-2-8(a) [1989], the director of the child advocate office has established, by legislative rule, child support guidelines. The current version of the rules is 6 W.Va.Code of State Rules 78-16-1 to 78-16-20 [1988]. W.Va.Code, 48A-2-8(a) [1989] 3, creates a rebuttable presumption that the amount of child support determined in accordance with the guidelines is correct and in order to rebut the presumption, the circuit court must make a written finding or a specific finding on the record that the application of the child support guidelines would be unjust or inappropriate. Gardner, supra, 184 W.Va. at 267, 400 S.E.2d at 275.

In Syllabus Point 2, Wyant, supra, we stated:

In order to facilitate appellate review of child support recommendations or orders, family law masters and/or circuit court judges must include as part of the record the worksheets reflecting the actual calculations which result from the application of the child support guidelines to the facts of a particular case.

See also, Bettinger, supra, 183 W.Va. at 541, 396 S.E.2d at 722; Wood, supra, 184 W.Va. at 749, 403 S.E.2d at 766.

In the present case without reference to the child support guidelines, the circuit court reduced the amount of child support from $100 to $50 per month. We also note that the record is silent on the child's needs. See Syllabus Point 2, Gardner, supra, in which we note that a substantial change in circumstances for modification can be shown by "increases in the children's needs because they are older...." The order of the circuit court indicates that he considered the family incomes of both Mr. and Mrs. Bonnell and Mr. and Mrs. Moss rather than the income of the responsible parents. The child support guidelines require that the net income from each responsible parent or support obligor be considered in establishing the amount of child support. See 6 W.Va.Code of State Rules 78-16-2 [1988]. The child support guidelines' only consideration of the remarriage of a support obligor and the employment of the present spouse is in establishing the household's "presumptive minimum need." See 6 W.Va.Code of State Rules 78-16-17 [1988], which also establishes the presumptive minimum needs for households that have several members.

Mr. Moss contends that the circuit court's order set forth sufficient findings to deviate from the child support guidelines. However, the circuit court failed to consider the amount of award established by the guidelines and thus is unable to justify why the application of the guidelines, which would have resulted in an unknown amount, would be "unjust or inappropriate." W.Va.Code, 48A-2-8(a) [1989].

On remand the circuit court should use the child support guidelines found in 6 W.Va.Code of State Rules 78-16-1 to 78-16-20 [1988], to determine the amount of support and include, as part of the record, worksheets reflecting the actual calculations that result from the application of the child support guidelines. The amount of support resulting from the application of the child support guidelines is the correct amount, unless the court, in a written finding or a specific finding on the record, determines that in this particular case the application of the guidelines would be unjust, inappropriate, waived pursuant to the safeguards outlined in W.Va.Code, 48A-2-8(a) [1989], or contrary to the best interest of the children or the parties. W.Va.Code, 48A-2-8(a) [1989].

II

Mrs. Bonnell also appeals the extended visitation granted by the circuit court alleging that it is in effect a joint custody arrangement. In David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912, 927 (1989), we refused to authorize a court-order joint...

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