SHARON BW v. GEORGE BW
| Decision Date | 14 July 1999 |
| Docket Number | No. 25441.,25441. |
| Citation | 205 W.Va. 594,519 S.E.2d 877 |
| Court | West Virginia Supreme Court |
| Parties | SHARON B.W., Plaintiff Below, Appellee, v. GEORGE B.W., Defendant Below, Appellant. |
Thomas J. Gillooly, Charleston, West Virginia, Attorney for Appellee.
Michael T. Clifford, Clifford, Mann & Swisher, Charleston, West Virginia, James T. Cooper, Cooper & Glass, Charleston, West Virginia, Attorneys for Appellant.
This is an appeal by George B.W., appellant/defendant, from an order of the Circuit Court of Kanawha County resolving the financial issues in a divorce proceeding. In the present appeal George B.W. assigns as error: (1) that the circuit judge rendered his decision without having read the record developed before the family law master and overruled portions of the recommended decision to which neither party had objected; (2) that the circuit judge committed error in failing to adopt the family law master's recommendation regarding stocks; and (3) that the circuit judge erred in requiring him to pay certain attorney fees.
The parties to this proceeding, Sharon B.W. and George B.W., were married on May 21, 1988. They had one child born on May 3, 1991. During their marriage they acquired substantial assets. George B.W., is a radiologist. Sharon B.W. has assets acquired from her family. Sharon B.W. filed for divorce on August 10, 1995. The circuit court granted the divorce on June 8, 1998.1
On November 25, 1997, a family law master conducted hearings on the parties' financial matters. The family law master found that the parties were separated on April 7, 1995, and concluded that George B.W. was entitled to the stock which he held in Kanawha Valley Radiologists, Inc. (KVR) as his separate property because he had received the stock only after the parties were "separated." In concluding that George B.W. was entitled to the KVR stock as his separate property, the family law master rejected the argument of Sharon B.W. that the parties were actually separated after George B.W. received the stock. The Family Law Master stated:
That Defendant owns one hundred shares of stock in Kanawha Valley Radiologists ("KVR") which has a value of One Dollar ($1.00) per share. The stock was acquired after the parties separated, after the plaintiff moved to Memphis, and after the divorce action was filed by the plaintiff.
In the conclusions of law section of the family law master's recommended decision he stated:
The interest of the Defendant in the KVR stock was acquired after the separation of the parties and is not marital property. The Plaintiff relied on a theory of an "expectation interest" in the KVR stock as constituting marital property. No convincing precedent was cited by Plaintiff's counsel to support his position. The only cases in this jurisdiction in which an "expectation interest" has been found to have a value involved cases in which the "property" was acquired during the marriage. See Metzner v. Metzner, 191 W.Va. 378, 446 S.E.2d 165 (1994)
(). Hardy v. Hardy, 186 W.Va. 496, 413 S.E.2d 151 (1991) () and Smith v. Smith, 190 W.Va. 402, 438 S.E.2d 582 (1993) (). The evidence in this case on this issue was clear and convincing that the property was not acquired during the marriage and that not every employee was made a shareholder.
The family law master also recommended that Sharon B.W. receive $50,000.00 as rehabilitative alimony. In making the alimony recommendation, the family law master noted that George B.W. was 44 years of age and earned a gross income of approximately $50,000.00 per month. Sharon B.W. was 36 years of age and was a college graduate. Except for one brief period of time, Sharon B.W. had sought no full time employment. The family law master stated:
The standard of living enjoyed by the Plaintiff has been long established by and provided by her parents. During most of her married life she earned at least as much income as her husband. Only at the end of the marriage did the defendant begin to earn substantial sums of money (as an employee of KVR his wages were approximately Fifteen Thousand Dollars ($15,000.00) per month). While the defendant is earning in excess of Fifty Thousand Dollars ($50,000.00) per month, he never approached that level of earnings during the marriage.
After considering the factors relating to alimony, the family law master found:
The parties lived together as man and wife for only three and one half years. Thus, it was by any measure a marriage of short duration. The plaintiff is only 36 years of age. She is in excellent health and she is a college graduate. While she has limited job experience, she is fully capable of employment, although it appears that she does not want to work. While the child is only six years old, he is enrolled in a first class private school and his days will be spent in class .... Additionally, the plaintiff has a stable family support unit in Memphis. Lastly, she has received many thousands of dollars from the defendant in the way of temporary support payments, some of which he made voluntarily, and other court ordered advances, some of which, admittedly, have been used to pay her attorneys .... Based upon these factors, upon her ability to earn both earned and investment income, and based upon the prior finding of abandonment... it would be unfair, inequitable, and unjust to award permanent alimony to the plaintiff, despite the gross disparity of their current incomes. Additionally, this family law master makes a specific finding that the plaintiff failed to prove any level of need. The only evidence concerning her monthly expenses reveals that the child support award greatly exceeds plaintiff's expenses, even when considering unnecessary expenses such as manicures, massages, etc. Any award of alimony should be rehabilitative in nature to afford the opportunity to improve her own financial condition.... This family law master, therefore, finds that alimony should be of a limited duration and rehabilitative in nature. Given the income disparity of the parties and the amount of child support to be paid by the defendant, the defendant should pay rehabilitative alimony to the plaintiff in a lump sum in order to allow the plaintiff the opportunity to obtain suitable housing for herself. Defendant should pay the plaintiff the lump sum of Fifty Thousand Dollars ($50,000.00) as and for rehabilitative alimony. This sum should be nonmodifiable in order to sever as much of the relationship as possible between the parties.
In addressing the question of attorney fees, the family law master found that Sharon B.W.'s pursuit of an interest in George B.W.'s stock in KVR violated Rule 20 of the Rules of Practice and Procedure for Family Law in W. Va.Code 48-2-13(6)(b). The family law master reasoned that her pursuit of the stock required George B.W. to incur unnecessary legal expenses, the cost of an economic expert, and to miss considerable amounts of time from work. The family law master noted that under Rule 20 of the Rules of Practice and Procedure for Family Law, when it appeared that a party had incurred unnecessary expenses because an opposing party had raised unfounded claims or defenses, it was appropriate to award attorney fees and costs to the innocent party. The family law master, therefore, ruled that George B.W. was entitled to complete reimbursement of his attorney fees and expenses as they related to defending the claim against his stock in KVR, as well as reimbursement for the cost of his economic expert and for replacement physician fees he incurred as a result of his attending hearings on the stock question.
After the family law master submitted his recommended decision, Sharon B.W. filed a petition challenging certain recommendations by the family law master. Sharon B.W. specifically took exception to the family law master's recommendations relating to George B.W.'s stock in KVR, alimony, and attorney fees. Relating to the stock in KVR, Sharon B.W.'s petition excepting to the recommendation of the family law master stated:
The findings and conclusions of the Recommended Order with respect to the Defendant's ownership interest in his medical practice are unsupported by and contrary to the evidence, erroneous as a matter of law, and constitute an abuse of discretion.
Her challenge to the amount of alimony stated:
The amount of alimony awarded in the Recommended Order is grossly inadequate under the facts of the case, is unsupported by the evidence, and constitutes an abuse of discretion. The Recommended Order's factual findings are inadequate to support the award of a mere $50,000 in alimony.
Sharon B.W. also challenged the family law master's recommendations regarding attorney fees:
The Law Master's attempt to make an award of attorney fees in connection with the litigation of the status of Defendant's interest in his medical practice, in addition to exceeding the Law Master's jurisdiction and the limits placed on the Circuit Court's referral to the Law Master, is unsupported by the evidence, contrary to law, and an abuse of discretion. The status of this asset as marital or non-marital was a legitimate issue, on which Plaintiff's expert, conceded in the Recommended Order (¶ 22, p. 8) to have been well qualified, rendered an opinion supporting the marital conclusion, and on which Plaintiff submitted persuasive legal authority. The fact that the Law Master concluded otherwise after the question was presented and briefed does not establish a basis for penalizing Plaintiff for litigating it. The additional proposed penalty, in the form of reimbursement to Defendant for expenses other than his attorney fees, is likewise contrary to the evidence, erroneous...
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