Pearson v. Pearson
| Decision Date | 21 July 1997 |
| Docket Number | No. 23679,23679 |
| Citation | 200 W.Va. 139,488 S.E.2d 414 |
| Court | West Virginia Supreme Court |
| Parties | Karen PEARSON, Plaintiff Below, Appellant v. Roger PEARSON, Defendant Below, Appellee. |
1. Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
2. "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., 195 W.Va. 384, 465 S.E.2d 841 (1995).
3. "Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).
4. "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." Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).
5. Syl. Pt. 2, Sandusky v. Sandusky, 166 W.Va. 383, 271 S.E.2d 434 (1981).
6. "In appropriate circumstances, an enhancement of an award of maintenance/alimony based on the degree of fault is justified. Enhancement of a maintenance/alimony award by a fault premium may be awarded when additional support is required 7. Although the Railroad Retirement Act of 1974, 45 U.S.C. § 231m, expressly precludes Tier I benefits from consideration as divisible marital property, Tier I benefits may be used for the purpose of making alimony payments when vested.
[200 W.Va. 142] to reimburse the injured spouse for expenses directly related to the fault or to assure that the injured spouse continues to have the standard of living enjoyed during the marriage. A fault premium may also be applied to discourage the fault or behavior that contributed to the dissolution of the marriage. In determining an award of maintenance/alimony enhanced by a fault premium, the circuit court must consider the concrete financial realities of the parties." Syl. Pt. 4,Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996)
8. The Railroad Retirement Act of 1974, 45 U.S.C. § 231m specifically prohibits offsetting Tier I benefits, as set out in 45 U.S.C. § 231b(a)(1), in a divorce proceeding. Therefore, a court cannot offset an equal division of marital assets to compensate a spouse for not being awarded any portion of the other spouse's Tier I benefits.
9. W.Va.Code § 48-2-15(b)(9) (1996) provides "[w]hen allegations of abuse have been proven, the court shall enjoin the offending party[.]" This provision makes it mandatory that a restraining order be entered against a spouse where it is shown by a preponderance of the evidence that such spouse abused the other spouse.
10. Syl. Pt. 6, Wood v. Wood, 184 W.Va. 744, 403 S.E.2d 761 (1991).
11. "Pursuant to W.Va.Code § 48-2-13(a)(6)(A), the court in a divorce proceeding may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court." Syl. Pt. 12, Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996).
12. " Syl. Pt. 5, Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996).
13. Attorney's fees in a divorce proceeding may be awarded to a party who received free legal aid services or pro bono legal representation; however, such an award is to compensate and reimburse legal counsel and shall not be paid to the litigant.
Marcelle St. Germain, Logan, for Appellant.
James A. Walker, Logan, for Appellee.
This appeal arises from an order of the Circuit Court of Logan County which granted a divorce to Karen Pearson, plaintiff/appellant, (hereinafter referred to as plaintiff) and Roger Pearson, defendant/appellee, (hereinafter referred to as defendant). On appeal the plaintiff alleges that the circuit court committed error with respect to the following: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney's fees; and (7) awarding defendant a Nissan Maxima, goods and furnishings, and the marital home. I.
The parties were married on September 25, 1969. Two children, now adults, were born from the marriage. The record indicates that the plaintiff did not work outside the home during the marriage. Plaintiff was a full-time homemaker. The defendant was employed throughout the marriage as a railroad employee with CSX Transportation.
The first significant problem between the parties occurred in 1987. In 1987, plaintiff suffered facial injuries as a result of a domestic fight with the defendant. The parties separated temporarily after this incident.
The record does not disclose any problems in the marriage after the 1987 incident, until the plaintiff filed for divorce in May of 1993. As grounds for divorce the complaint alleged cruel treatment, alcoholism and irreconcilable differences. The defendant filed a counterclaim seeking a divorce on the grounds of cruelty and irreconcilable differences.
The family law master held evidentiary hearings in this matter on October 12, 1994 and November 16, 1994. A recommended decision, that included granting a divorce on grounds of irreconcilable differences, was filed by the family law master on April 14, 1995. The plaintiff petitioned for review of the recommended order. The circuit court issued a final order on March 28, 1996, which adopted all of the family law master's recommendations except one. The circuit court found that the family law master abused her discretion in awarding the sum of $150 per month as alimony to plaintiff. The circuit court increased alimony to $375 a month. The plaintiff thereafter prosecuted this appeal. The plaintiff has assigned as error: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney's fees; and (7) the award to defendant of the Nissan Maxima, goods and furnishings, and the marital home.
II.
We begin our analysis by setting out the standard in which this Court reviews challenges to an equitable distribution order of a circuit court. We outlined that standard succinctly in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):
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.
See also Syl. Pt. 2, Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451 (1995). It was noted by this Court in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995) 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." We explained in syllabus point 3 of Stephen L.H., that "[u]nder the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences."
With the above principles in view we now turn seriatim to plaintiff's assignments of error.
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