Rexroad v. Rexroad

• Decision Date: 07 February 1992
• Docket Number: No. 20154,20154
• Citation: 186 W.Va. 696,414 S.E.2d 457
• Parties: Lewis H. REXROAD, Plaintiff Below, Appellee, v. Constance L. REXROAD, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 457

414 S.E.2d 457

186 W.Va. 696

Lewis H. REXROAD, Plaintiff Below, Appellee, v. Constance L. REXROAD, Defendant Below, Appellant.

No. 20154.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1992.

Decided Feb. 7, 1992.

Syllabus by the Court

1. In determining the amount of alimony or child support that may be obtained, consideration may be given not only to regular wages earned, but also to the amount of overtime pay ordinarily obtained.

2. W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship.

William B. Richardson, Sr., William B. Richardson, Jr., Richardson & Richardson, Parkersburg, for plaintiff below, appellee.

D. Clinton Gallaher, IV, Fayetteville, for defendant below, appellant.

MILLER, Justice:

This case is before us on appeal from an order of the Circuit Court of Wood County, dated October 4, 1990, which granted a divorce to Constance L. Rexroad and Lewis H. Rexroad. Mrs. Rexroad appeals the alimony award of $50.00 per week, contending that it is inadequate. For the reasons stated below, we agree and remand this case for an award of additional alimony.

I.

The parties were married on March 26, 1966. Two children were born of the marriage, both of whom were emancipated at the time this action was brought. During the course of the marriage, there were apparently long periods of time during which the parties would not speak to one another except as absolutely necessary. Mr. Rexroad contends that these periods of silence were the fault of Mrs. Rexroad who would, for no apparent reason, often get upset and cease speaking to him. He testified that, initially, he would attempt to determine the cause of the problem and remedy it, but that eventually he got frustrated with these recurring episodes and simply learned to accept them without attempting a remedy.

Mrs. Rexroad contends that she would often attempt to converse with her husband, but that he would be too distracted by the television and not interested in what she was saying to him. She testified that this would make her very upset and that she eventually stopped attempting to converse with Mr. Rexroad and engaged in other activities, such as reading.

On September 4, 1988, Mr. Rexroad left the marital home, following one of these silent episodes of approximately nine months' duration. He subsequently filed for divorce from Mrs. Rexroad on grounds of irreconcilable differences.

During the marriage, Mr. Rexroad was employed as a driver for United Parcel Service. In his financial disclosure statement, dated February 14, 1989, Mr. Rexroad indicated that his base pay per year was approximately $32,000. However, his total income for the preceding year was approximately $42,000. Mr. Rexroad indicated that his net average earnings per month were approximately $1,800; however, with earnings of $42,000 per year, Mr. Rexroad would be earning a gross monthly pay of approximately $3,500. This discrepancy in the yearly earnings is apparently the result of regular overtime pay earned by Mr. Rexroad. Mr. Rexroad testified that he regularly worked more than forty hours per week.

Mrs. Rexroad has been employed on a part-time basis by Sears, Roebuck & Company for approximately twelve years. The family law master found that she had never been offered an advancement by Sears beyond her part-time status. It was also found that she had had a malignancy removed from her breast and was in a high health risk category. On her financial disclosure statement, dated January 24, 1989, Mrs. Rexroad indicated that her gross earnings per year were approximately $10,000, and that her total income for the preceding year was approximately $10,000. She indicated that her net average earnings per month were approximately $605.

The family law master found that Mr. Rexroad's average monthly net income was approximately $1,800 and that Mrs. Rexroad's average monthly net income was approximately $605 and recommended an award of $50.00 per week. Although the family law master did not explain how she arrived at this figure, it is obvious from the findings that she did not take into account the regular overtime pay earned by Mr. Rexroad. We also infer from the recommended decision, even though it was not explicitly stated, that the family law master considered the fault of Mrs. Rexroad in ordering such an insignificant amount of alimony.

II.

With regard to the inclusion of overtime pay in calculating earnings, our domestic relations law provides for the payment of alimony and child support "to be ordinarily made from a party's employment income and other recurring earnings." W.Va.Code, 48-2-15(a) (1986). ¹ Moreover, in W.Va.Code, 48-2-16(b) (1984), the legislature has listed the factors to be considered in making a determination of the appropriate amount of alimony and child support. This list includes "[t]he present employment income and other recurring earnings of each party from any source." W.Va.Code, 48-2-16(b)(3) (1984).

We have not previously had occasion to determine whether overtime pay is a regular part of employment income and, therefore, should be included in the calculation of alimony and child support. In Stevens v. Stevens, 186 W.Va. 259, 412 S.E.2d 257 (1991), we recognized that overtime pay could be used in considering total income for purposes of determining child support. We noted that "[w]hile [the husband] claims that overtime [pay] is sparingly offered to him, the documentation supplied to the court rather clearly indicates that he did receive it." 186 W.Va. at 263, 412 S.E.2d at 261.

Other jurisdictions that have had occasion to consider overtime pay have concluded that where it is obtained with some degree of regularity, it should be considered in determining the total employment earnings for purposes of both alimony and child support. Reyna v. Reyna, 78 Ill.App.3d 1010, 34 Ill.Dec. 818, 398 N.E.2d 641 (1979); Goetsch v. Goetsch, 10 Mich.App. 440, 159 N.W.2d 748 (1968); In re Marriage of Vashler, 183 Mont. 444, 600 P.2d 208 (1979); Jones v. Jones, 472 N.W.2d 782 (S.D.1991).

In Jones v. Jones, supra, the record revealed that the husband had averaged about ten hours a week overtime over the past two years. It concluded that the trial court was correct in including this amount in considering child support payments. Without any elaborate discussion, the court noted the distinction "between consistent overtime pay and speculative overtime pay." 472 N.W.2d at 784.

The Michigan appeals court in Goetsch v. Goetsch, supra, rationalized the utilization of overtime pay as a part of the defendant's earnings for purposes of determining the amount of child support, stating that if this were not done:

"[it] would enable defendant to continue to enjoy all the additional financial benefits of his overtime employment while requiring the children to undergo a severe reduction in their standard of living in order to conform to his net weekly base pay.... [W]e must agree with the court that overtime pay, when earned during the marital relationship, established a standard of living for the children of that marriage which should not be reduced upon divorce, short of showing that such overtime income is not feasible." 10 Mich.App. at 443-444, 159 N.W.2d at 749.

We agree with our holding in Stevens v. Stevens, supra, as well as the holdings in other jurisdictions, that in determining the amount of alimony or child support that may be obtained, consideration may be given not only to regular wages earned, but also to the amount of overtime pay ordinarily obtained.

III.

With regard to the fault issue, ² we recently recognized in Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991), that W.Va.Code, 48-2-15(i) (1986), specifically authorizes consideration of fault in determining an alimony award. The pertinent language of this subsection is:

"In determining whether alimony is to be awarded, or in determining the amount of alimony, if any, to be awarded under the provisions of this section, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship." ³ (Emphasis added).

In Charlton, we also stated that "[e]ven before the adoption of this provision, we had indicated that fault or misconduct could be considered in awarding alimony." 186 W.Va. at 673, 413 S.E.2d at 914. Among the cases cited for this proposition was Peremba v. Peremba, 172 W.Va. 293, 304 S.E.2d 880 (1983), which dealt with alimony in a divorce on grounds of living separate and apart. W.Va.Code, 48-2-4(a)(7) (1981). This section provides that in determining alimony, "the court may inquire into the question of who is the party at fault and may award alimony according to the right of the matter." In Syllabus Point 1 of Peremba, we interpreted this language to mean:

"When alimony is sought under W.Va.Code, 48-2-4(a)(7), the court may consider substantial inequitable conduct on the part of the party seeking alimony as one factor in its decision. Substantial inequitable conduct is conduct which the trier of fact may infer caused the dissolution of the marriage."

Charlton also cited Haynes v. Haynes, 164 W.Va. 426, 264 S.E.2d 474 (1980). Haynes dealt with the irreconcilable differences ground for divorce contained in W.Va.Code, 48-2-4(a)(10) (19...