Rogers v. Rogers

• Decision Date: 11 July 1996
• Docket Number: No. 23075,23075
• Court: West Virginia Supreme Court
• Parties: Lisa S. ROGERS, Plaintiff Below, Appellant, v. Robert Alan ROGERS, Defendant Below, Appellee.

Page 457

475 S.E.2d 457

197 W.Va. 365

Lisa S. ROGERS, Plaintiff Below, Appellant, v. Robert Alan ROGERS, Defendant Below, Appellee.

No. 23075.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1996.

Decided July 11, 1996.

[197 W.Va. 367] Syllabus by the Court

1. "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." Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

2. "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." Syllabus Point 1, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).

3. "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." Syllabus Point 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).

4. 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 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.

5. "In divorce actions, an award of attorney's fees rests initially within the sound discretion of the family law master and should not be disturbed on appeal absent an abuse of discretion. In determining whether to award attorney's fees, the family law master should consider a wide array of factors including the party's ability to pay his or her own fee, the beneficial results obtained by the attorney, the parties' respective financial conditions, the effect of the attorney's fees on each party's standard of living, the degree of fault of either party making the divorce action necessary, and the reasonableness of the attorney's fee request." Syl. pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).

Darrell W. Ringer, Morgantown, for Appellant.

Delby B. Pool, Clarksburg, for Appellee.

RECHT, Justice:

Lisa Rogers appeals certain portions of the final divorce order of the Circuit Court of Marion County. On appeal, Ms. Rogers contends that the circuit court made the following errors: (1) failure to divide equitably the marital estate; (2) improper classification of certain housing related payments as fifty (50) percent alimony and fifty (50) percent child support; (3) failure to consider certain payments to Robert Alan Rogers, her former husband, in calculating child support; (4) failure to consider fault in the calculation of alimony resulting in an unjust alimony award; and (5) failure to award her attorneys' fees. Based on our review of the evidence, we find that although Ms. Rogers' first two assignments of error are without merit, the other assignments have merit, and therefore, we affirm the circuit court's decision on the first two assignments of error and reverse the circuit court's decision on the last three assignments of error and remand the case with directions. I.

FACTS AND BACKGROUND

After almost twenty (20) years of marriage, on March 7, 1994, Ms. Rogers, citing Robert Alan Rogers' adulterous conduct, irreconcilable differences and cruel and inhuman treatment, filed for divorce. Mr. and Mrs. Rogers have two daughters, ages 18 and 14 at the time of the separation. In his answer, Mr. Rogers admitted irreconcilable differences. Evidence was presented that Mr. Rogers' adulterous conduct contributed to the dissolution of the marriage. Ms. Rogers was awarded custody of the minor child; Mr. Rogers was to have visitation.

The recommended order of the family law master, which was adopted by the circuit court (hereinafter, the final order), noted that Mr. Rogers admitted to an adulterous relationship which, according to the final order, contributed, in part, to the dissolution of the marriage. The final order said that "[a]s a result of her [Ms. Rogers] severe reaction to this situation, plaintiff has suffered psychological and emotional trauma, resulting in her incurring expenses for medical and psychological hospitalization and treatment, not otherwise covered by insurance." ¹ The final order, based on income information provided by Mr. Rogers' employer, who is also Mr. Rogers' father, and Ms. Rogers' proposed findings of facts, required Mr. Rogers to pay child support for the parties' minor child in the amount of $455.17 per month. Equitable distribution of marital assets and liabilities was ordered. Temporary payments for utilities, automobile loan installments and automobile insurance made by Mr. Roger during the pendency of the divorce were deemed to be alimony. Temporary payments for the housing loans, land contract, rent, property taxes and insurance were deemed to be half alimony and half child support. Ms. Rogers was granted alimony of $100 per month for five years. Each party was required to pay their own costs, attorneys' fees and half of the family law master's fee.

On appeal, Ms. Rogers contends that the final order contained the following errors: (1) the final order failed to divide the marital assets and liabilities equitably, in that Mr. Rogers was favored by about $11,077.37, Ms. Rogers' lost wages were not considered, no specific values were assigned to household furnishings and no distribution was made of certain bank accounts and a life insurance policy; ² (2) the final order erred in holding that certain payments ($12,426.92) made by Mr. Rogers during the pendency of the divorce were half alimony and half child support; (3) in calculating Mr. Rogers' income for child support, the final order failed to include monetary and non-monetary payments from Mr. Rogers' father/employer and his girlfriend; (4) the alimony awarded did not properly consider fault or misconduct and, given the circumstances of this case, is not just and equitable; and (5) the final order erred in failing to award Ms. Rogers her attorneys' fees.

II.

STANDARD OF REVIEW

Recently in Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), we outlined the three-pronged standard of review applied to the findings of facts and conclusions of law made by a family law master that were adopted by a circuit court.

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 In accord Syl. pt. 1, Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996); Syl. pt. 1, State, Dept. of Health v. Robert Morris N., 195 W.Va. 759, 466 S.E.2d 827 (1995); Carter v. Carter, 196 W.Va. 239, 244, 470 S.E.2d 193, 198 (1996).

[197 W.Va. 369] erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Awards of alimony, attorneys' fees and costs are reviewed under an abuse of discretion standard. The Syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977) states:

Questions relating to alimony and 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.

In accord Syl. pt. 2, Mayhew v. Mayhew, supra; Banker v. Banker, 196 W.Va. 535, 547, 474 S.E.2d 465, 478 (1996); Carter v. Carter, supra.

Syl. pt. 4 of Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993) states:

" 'In a suit for divorce, the trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that he has abused his discretion.' Syllabus point 3, Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959)." Syl. Pt. 2, Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982).

In accord Syl. pt. 3, Mayhew v. Mayhew, supra. In Yanero v. Yanero, 171 W.Va. 88, 91, 297 S.E.2d 863, 866 (1982), we stated:

An award of attorney's fees and costs in a divorce action is a matter within the discretion of the trial court and will not be disturbed on appeal absent a find of abuse of discretion.

Mindful of our standards of review, we address the four issues remaining in this case to determine if the circuit court abused its discretion.

III.

DISCUSSION

A. Designation of Temporary Payments

In this case, Mr. Rogers was required by the family law master to make temporary payments on the two mortgages on the marital residence,...