Sly v. Sly, 20167

• Decision Date: 03 April 1992
• Docket Number: No. 20167,20167
• Citation: 187 W.Va. 172,416 S.E.2d 486
• Court: West Virginia Supreme Court
• Parties: Virginia Ann SLY (Topping), Plaintiff Below, Appellant, v. James Howard SLY, Defendant Below, Appellee.

Page 486

416 S.E.2d 486

187 W.Va. 172

Virginia Ann SLY (Topping), Plaintiff Below, Appellant, v. James Howard SLY, Defendant Below, Appellee.

No. 20167.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1992.

Decided April 3, 1992.

Syllabus by the Court

1. W.Va.Code, 48-2-15(b)(4) [1991] provides that if the circuit court, upon ordering a divorce, requires payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes, insurance coverage, or other expenses reasonably necessary for the use and occupancy of the marital domicile, those payments shall be deemed to be alimony, child support or installment payments for the distribution of marital property in such proportion as the circuit court may direct. W.Va.Code, 48-2-15(b)(4) [1991] further provides that if the circuit court does not set forth in the order that a portion of such payments are deemed to be child support or installment payments for the distribution of marital property, then all such payments shall be deemed to be alimony.

2. Where the circuit court, though not specifically using the term "child support," sets up a house payment provision in the final divorce decree to serve as child support for the minor child or children of the divorcing parties, such a provision shall be deemed to be child support under W.Va.Code, 48-2-15(b)(4) [1991].

3. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syl. pt. 2, State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981).

4. "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 the established state guidelines, set forth in 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20 (1988), unless the master or the court sets forth, in writing, specific reasons for not following the guidelines in the particular case involved. W.Va.Code, 48A-2-8(a), as amended." Syl., Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989).

5. "In a case where the dependency exemption is allocated, that is, where a trial court requires the custodial parent to execute the necessary waiver pursuant to 26 U.S.C. § 152(e)(2)(A), as amended, the trial court should set forth its reasons for doing so in the order awarding child support. These reasons should clearly demonstrate that it is more equitable to allocate the dependency exemption to the noncustodial parent than it would be to allow the custodial parent to claim the dependency exemption." Syl. pt. 2, Soriano v. Soriano, 184 W.Va. 302, 400 S.E.2d 546 (1990).

Sidney H. Bell, Welch, for appellant.

David M. Katz, Bluefield, for appellee.

McHUGH, Chief Justice:

This case is before this Court upon the appeal of Virginia Ann Sly (now "Mrs. Topping") from an order of the Circuit Court of McDowell County which reduced the child support obligations of her former husband, James Howard Sly, and relieved him of one-half of the monthly house payments he was required to make on the parties' jointly-owned residence. Mrs. Topping asserts that Mr. Sly should be required to make the full monthly house payment as part of the equitable distribution of their marital assets and that the amount of child support to be paid by Mr. Sly should be calculated in accordance with the established state guidelines set forth in 6 W.Va.Code of State Rules, §§ 78-16-1 to 78-16-20 (1988).

I

The factual summary of this case consists primarily of a lengthy procedural history involving several petitions filed on behalf of both parties seeking various modifications of the child support and house payment obligations under the final divorce decree.

By order entered on March 19, 1987, ¹ the circuit court granted the parties a divorce on the grounds of irreconcilable differences. The circuit court further ordered, among other things, that Mr. Sly pay the parties' monthly house payment on the marital domicile in the amount of $421.40, and that Mrs. Topping be awarded exclusive use of that domicile until the parties' daughter becomes 18 years of age. The circuit court also directed Mr. Sly to pay monthly child support in the amount of $500.00 and monthly alimony in the amount of $50.00.

Mr. Sly subsequently filed a petition to modify the divorce decree on May 17, 1988. Among the requests in his petition, Mr. Sly sought to eliminate the alimony payment because of the remarriage of Mrs. Topping, to reduce the child support payments, and to require Mrs. Topping to pay the monthly house payments. The family law master then recommended that the alimony payment be eliminated, that child support be reduced from $500.00 to $337.50, and that Mr. Sly only be required to pay one-third of the monthly house payment in the amount of $140.46. The circuit court adopted the family law master's recommendations by order entered on September 2, 1988.

Approximately seven months later, Mrs. Topping filed a petition seeking to increase the amount of child support on the ground that circumstances had changed justifying modification. Mrs. Topping alleged that her new husband had become unemployed since the order modifying the decree had been entered, that Mr. Sly had remarried a woman who was gainfully employed, and that Mrs. Topping had never received any interest in Mr. Sly's retirement as part of the equitable distribution of the parties' assets.

Following a hearing on the petition, the family law master submitted a report recommending that Mr. Sly pay child support in the amount of $662.47 per month pursuant to W.Va.Code, 48A-2-8 [1989] and 6 W.Va.Code of State Rules §§ 78-16-1 to 78-16-20 (1988). The circuit court, recognizing that no exceptions to the recommendation had been filed by either party within the time period prescribed, adopted the family law master's recommendation by order entered on January 22, 1990. Apparently, however, the order was rescinded after it was signed.

Mr. Sly filed a petition to review the family law master's recommendation on January 22, 1990. Mrs. Topping then filed a petition to vacate the circuit court order entered on September 2, 1988, modifying the original divorce decree, on the ground that the circuit court lacked subject matter jurisdiction for entering that order. In her memorandum in support of the petition to vacate, Mrs. Topping also contended that Mr. Sly could not petition the court to review the family law master's recommended decision subsequent to the expiration of the statutorily-defined ten-day time limit. In his response and counterpetition, Mr. Sly asserted that his obligation to pay the mortgage payment should be terminated because it represented alimony under W.Va.Code, 48-2-15(b)(4) [1991], and that the child support established in the September 2, 1988 order should be reinstated.

The circuit court filed a memorandum opinion on August 16, 1990, wherein it determined that the child support formula furnished to the family law master was erroneous and that the order prepared by counsel on behalf of Mrs. Topping did not completely follow the family law master's recommendations. ² The circuit court then calculated the appropriate child support by incorporating the corrections into the formula. The circuit court ordered that the amount of $503.97 in child support be paid from the date of the family law master's recommendations to the date of the court's memorandum. The circuit court further ordered that future child support payments from the date of the memorandum would be $400.00, in order to give Mr. Sly credit against his support obligation for paying half of the loan payments on the home, half of the insurance, and half of the taxes. The court found that the parties' child was benefitting from the use of the home and the cost thereof, and that Mr. Sly should be receiving some credit toward his daughter's support.

By letter dated October 24, 1990, the circuit court, after being advised that Mrs. Topping refused to sign the certificate authorizing Mr. Sly to claim their child as a tax exemption, directed her to execute the waiver required by the Internal Revenue Service in accordance with this Court's decision in Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987).

The circuit court subsequently entered an order on November 16, 1990, nunc pro tunc the 16th day of August, 1990, incorporating its findings and conclusions from its memorandum opinion dated August 16, 1990, and its ruling regarding the tax exemption set forth in its letter dated October 24, 1990. It is from that order that Mrs. Topping now appeals.

II

The first issue we shall address in this appeal is whether Mr. Sly's obligation to pay the monthly house payment was deemed to be an alimony payment under the provisions of W.Va.Code, 48-2-15(b)(4) [1991], because the circuit court did not state in its order that a portion of such payments were deemed to be child support or installment payments for the distribution of marital property. Mrs. Topping contends that it was the intent of the parties to make the house payment obligation part of the equitable distribution of their marital assets, and that the circuit court did not have jurisdiction to modify those payments. ³ Mr. Sly maintains that at least half of the house payment was intended as child support and that none of those payments were part of the equitable distribution of their marital property. Mr. Sly asserts that the circuit court had jurisdiction under W.Va.Code, 48-2-15(b)(4) [1991] to modify the order directing those payments.

W.Va.Code, 48-2-15(b)(4) [1991] addresses, among other payments to third parties, the payment of home loan installments for the use and occupancy of the marital home for the rearing of the parties' minor children pursuant to a divorce decree....