Smith v. Smith

• Decision Date: 22 July 1992
• Docket Number: No. 20726,20726
• Court: West Virginia Supreme Court
• Parties: Stephen C. SMITH, Plaintiff Below, Appellee, v. Joyce Ann Maurer SMITH, Defendant Below, Appellant.

Page 916

420 S.E.2d 916

187 W.Va. 645

Stephen C. SMITH, Plaintiff Below, Appellee, v. Joyce Ann Maurer SMITH, Defendant Below, Appellant.

No. 20726.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1992.

Decided July 22, 1992.

Syllabus by the Court

1. "The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained." Syllabus Point 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

2. "Under W.Va.Code, 31A-4-33 (1969), where separate funds are deposited in a joint account in the names of both husband and wife, such funds are presumed to be marital property for purposes of equitable distribution." Syllabus Point 7, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

3. "The purpose of W.Va.Code, 48-2-13(a)(4) (1986), is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees during the course of the litigation." Syllabus Point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

Ronald J. Flora, Milton, for appellee.

James M. Cagle, Charleston, for appellant.

PER CURIAM:

In this case, Joyce Smith appeals from an order of the Circuit Court of Putnam County which granted a divorce to her husband, Dr. Stephen Smith. Mrs. Smith makes several assignments of error concerning the trial court's failure to award alimony. Mrs. Smith also asks to be awarded attorneys' fees. We address each assignment individually.

I.

Dr. and Mrs. Smith met while Dr. Smith was in medical school in Huntington. Mrs. Smith, a widow with two sons, taught nursing. They married in July, 1980, before Dr. Smith's final year of medical school. After Dr. Smith's graduation, the family relocated to Madison, Wisconsin, where Dr. Smith trained as a resident physician. In December, 1981, the couple's daughter was born. While in Wisconsin, Mrs. Smith initially worked as a nurse, but later entered a program to pursue a Master's degree in community health nursing. During this time, the family lived on Dr. Smith's salary, his moonlighting income, Mrs. Smith's stipend, and her sons' Social Security survivors' benefits.

The family returned to West Virginia in 1985. Dr. Smith initially joined a group medical practice, but later started his own solo practice. Mrs. Smith taught nursing at the University of Charleston, and then worked in Dr. Smith's office for approximately six months in 1987. She later took a position as a school nurse in Putnam County, where she was working at the time of the evidentiary hearings. ¹ She earned approximately $20,000 per year in the school nurse position and took temporary jobs during the summer months to supplement this.

Dr. and Mrs. Smith separated in September, 1988, and Dr. Smith filed for divorce one month later. Mrs. Smith answered and counterclaimed in November, 1988. Following litigation, the family law master filed the recommended decision in October, 1990. The trial court finally filed the order from which Mrs. Smith appeals in May, 1991.

II.

Mrs. Smith complains that the circuit court erroneously failed to award her alimony or to determine that Dr. Smith was unjustly enriched by the use of the social security benefits her sons received as a result of the death of their father. In response, Dr. Smith argues that alimony is inappropriate because Mrs. Smith could earn more than she is currently making at her job as a school nurse, which Dr. Smith characterizes as underemployment. He also claims that he was not unjustly enriched by the use of Mrs. Smiths' sons' funds.

A.

The family law master found no basis to award alimony of any type. The circuit court adopted this finding and denied alimony. Mrs. Smith seeks rehabilitative alimony to enable her to obtain a Ph.D. She testified that with such a degree, she could earn up to $50,000 per year teaching nursing. With her Master's degree, she testified that she could earn up to $30,000 a year, but only by working as a clinical nurse at a hospital, which would require shift work outside of her field of specialization. The cost of obtaining the advanced degree was estimated to be $12,000 a year over a two-year period. Dr. Smith's gross earnings from his medical practice were shown to be approximately $155,000 a year.

We recognized the concept of rehabilitative alimony in Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984), and in Syllabus Point 1 gave this explanation of the term and its purpose:

"The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained."

In most of our cases in this area, the issue has been whether the trial court was correct in awarding rehabilitative alimony rather than permanent alimony. ²

In several cases we have affirmed an award of rehabilitative alimony where the spouse had some job skills and could upgrade them through training. See, Hanshaw v. Hanshaw, 180 W.Va. 478, 377 S.E.2d 470 (1988); Hoak v. Hoak, 179 W.Va. 509, 370 S.E.2d 473 (1988); Greeson v. Greeson, 178 W.Va. 189, 358 S.E.2d 448 (1987). Hoak is perhaps the most analogous of these cases. There, the wife had a college degree and was awarded two years of rehabilitative alimony in order to secure a specialty in accounting. The main difference between this case and Hoak is that at the time of the divorce, Mrs. Hoak was only working on a sporadic basis, while Mrs. Smith was working full time.

Other jurisdictions have authorized rehabilitative alimony where the wife was working full time but was able to demonstrate that rehabilitative alimony would materially increase her earning capacity. See, e.g., In Re Marriage of Cheger, 213 Ill.App.3d 371, 157 Ill.Dec. 116, 571 N.E.2d 1135 (1991); York v. York, 823 S.W.2d 45 (Mo.App.1991); Wahlberg v. Wahlberg, 479 N.W.2d 143 (N.D.1992); Brooks v. Brooks, 470 N.W.2d 827 (S.D.1991). We note that in none of these cases was the husband's ability to pay an issue. No issue of ability to pay should arise in this case because Dr. Smith's income was found to be approximately $155,000 a year.

Finally, we note that the Legislature has specifically recognized the right of a spouse to seek this type of alimony. W.Va.Code, 48-2-16(b) (1984), sets out the factors to be considered in awarding alimony, among which are:

"(7) The educational qualifications of each party;

(8) The likelihood that the party seeking alimony, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;

(9) The anticipated expense of obtaining the education and training described in subdivision (8) above; ...."

We find that the circuit court erred in not favorably considering Mrs. Smith's rehabilitative alimony claim. On remand, the record needs to be developed further as to the economic benefits from the Ph.D. degree, but the award should not be rejected merely because Mrs. Smith is currently capable of earning $30,000 a year. Where a husband enjoys significantly higher income than the wife, the wife's claim for additional training to increase her income should be favorably considered.

B.

We find Mrs. Smith's claim that Dr. Smith has been unjustly enriched by use of her sons' survivors' benefits unconvincing. Mrs. Smith testified that during the period the family resided in Wisconsin, she deposited these monies into the parties' joint account. The money in the joint account was then used to pay household expenses. It is undisputed that Mrs. Smith's sons were part of the household during this time and thus received the benefit of the funds. We note, additionally, that we have held that the transfer of separate property to a joint title creates a presumption of gift to the marital estate. In Syllabus Point 7 of Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), we stated:

"Under W.Va.Code, 31A-4-33 (1969), where separate funds are deposited in a joint account in the names of both husband and wife, such funds are presumed to be marital property for purposes of equitable distribution."

Mrs. Smith's commingling of these funds in a joint account created the presumption of marital property. They were subsequently used for marital purposes, thus extinguishing her right to claim that Dr. Smith was unjustly enriched by their use.

III.

Mrs. Smith also argues that the trial court erred in failing to order Dr. Smith to contribute to the health care of their daughter. At the time of the final decree, this issue was controlled by W.Va.Code, 48-2-15(b)(3) (1990), which enables a court to order, as an incident to the payment of child support, either party to purchase or to continue in effect health insurance coverage for a minor child if it can be done for a reasonable cost. ³ Such payments under this section "shall be deemed to be alimony, child support or installment payments for the distribution of marital property, in such proportions as the court shall direct...." W.Va.Code, 48-2-15(b)(3). Neither the family law master nor the trial court addressed this issue.

We note that in 1991, the Legislature enacted W.Va.Code, 48-2-15a, which went into effect several weeks after the final decree was entered in this case. ⁴ In enacting this new section, the Legislature did not repeal W.Va.Code, 48-2-15(b)(3). The two statutory provisions are similar from a substantive standpoint, although W.Va.Code, 48-2-15a contains much more procedural detail. This latter section also provides that such child health care costs "... shall be considered by the court in applying the child support guidelines ..." W.Va.Code, 48-2-15a(c).

From a review of both W.Va.Code, 48-2-15(b)(3), and W.Va.Code, 48-2-15a we conclude that the Legislature has authorized trial...