State ex rel. Martin v. Spry, 23034

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 196 W.Va. 508,474 S.E.2d 175
• Parties: STATE of West Virginia ex rel. Dinah Spry MARTIN, Plaintiff Below, Appellant, v. Michael SPRY, Defendant Below, Appellee, West Virginia Department of Health and Human Resources, Intervenor.
• Docket Number: No. 23034,23034
• Decision Date: 17 May 1996

Page 175

474 S.E.2d 175 196 W.Va. 508 STATE of West Virginia ex rel. Dinah Spry MARTIN, Plaintiff
Below, Appellant,
v.
Michael SPRY, Defendant Below, Appellee,
West Virginia Department of Health and Human Resources, Intervenor. No. 23034. Supreme Court of Appeals of West Virginia. Submitted Jan. 10, 1996.
Decided May 17, 1996. Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "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." Syllabus, Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989).

Dinah Martin, Willow Springs, Illinois, Appellant, Pro Se.

Anne L. Wandling, Donald C. Wandling, Avis, Witten & Wandling, L.C., Logan, for Appellee.

Ilene S. Schnall, West Virginia Department of Health and Human Resources, Child Support Enforcement Division, Charleston, for Intervenor.

PER CURIAM:

This appeal is before this Court from the final order of the Circuit Court of Logan County, West Virginia, entered on February 27, 1995. That order confirmed an earlier order reducing the amount of child support payable to the appellant, Dinah Spry Martin, by the appellee, Michael Spry, from $300 per month to $50 per month. In granting the appeal, this Court directed the West Virginia Department of Health and Human Resources, Child Support Enforcement Division, to assume the status of an intervenor on behalf of the children.

Page 176

[196 W.Va. 509] This Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, and, in particular, because the circuit court did not follow the Guidelines for Child Support Awards promulgated pursuant to W.Va. Code, 48A-2-8 [1993] (now W.Va. Code, 48A-2-17 [1995] ), or articulate a reason why an application of the Guidelines should not be followed, we reverse the final order and remand for further consideration.

I

On July 22, 1983, an order divorcing the appellant and the appellee upon the ground of irreconcilable differences was entered in the Circuit Court of Logan County. W.Va. Code, 48-2-4 [1981]. The divorce order incorporated a separation agreement between the parties which gave the appellant custody of the parties' three children and required the appellee to pay $300 per month in child support. The children were born in 1971, 1976 and 1977, respectively. In addition, the separation agreement required the appellee to "keep the infant children covered by hospital and medical insurance." The appellant waived alimony.

In November 1987, the appellee was injured in a motor vehicle accident which rendered the appellee unable to continue his employment with Logan Motor Sales, and he began to fall behind in the child support payments. Thereafter, the appellee filed a petition to modify the payments. In March 1989, a mediator filed a report indicating that, based upon a "child support formula," the appellee was incapable of paying further child support. The report noted, however, that the appellee had owned a food and video store known as S & S Carry-Out, title to which the appellee had transferred to his girlfriend, Rhonda Harvey. The appellee and Rhonda Harvey were later married. No reference to S & S Carry-Out appeared in the formula utilized by the mediator for the report. The report of the mediator noted that the appellant had also remarried and was earning approximately $1,053 per month from various employments. According to the report, the appellant, rather than the appellee, was providing medical insurance for the children and had incurred a debt of $1,756 in dental care for the children.

Thereafter, a family law master filed a recommendation with respect to the appellee's petition for modification. That recommendation, essentially a one-page document, stated that the appellee should be "ordered to pay Fifty Dollars ($50.00) per month as support for his infant children until such time as he has regained full time employment or has sufficient income to pay additional support for the infant children." By order entered on October 30, 1989, the recommendation of the family law master was adopted by the circuit court. In addition to reducing the child support from $300 per month to $50 per month, the circuit court entered judgment against the appellee for $3,880 in child support arrearages and ordered the appellee to pay to the appellant $10 per week for medical insurance coverage for the children. Neither the recommendation of the family law master, nor the order of October 30, 1989, referred to any guidelines or formula concerning the support needs of the children or the respective financial circumstances of the parties. Moreover, no mention is made of either the report of the mediator or S & S Carry-Out.

The appellant moved to Illinois, and by order dated July 15, 1991, that State transmitted to West Virginia a petition filed by the appellant to modify the appellee's child support obligation. See Ill.Ann.Stat. ch. 750, para. 20/1 (Smith-Hand 1993), et seq. and W.Va. Code, 48A-7-1 [1986], et seq. (setting forth current uniform reciprocal enforcement of support statutes and providing that, under the circumstances of this case, the law of West Virginia is determinative of the appellee's duty of support). The appellant sought an increase in child support payments. As the result of an unexplained delay, proceedings on the appellant's Illinois petition for modification did not commence in West Virginia until 1993, and, according to the intervenor, the appellee was not served with the petition until May 24, 1993. In the meantime, the appellee paid the $3,880 judgment for child support arrearages.

On December 1, 1994, an evidentiary hearing was conducted in Logan County. Following

Page 177

[196 W.Va. 510] the hearing, the family law master submitted a recommendation finding that no change of circumstances had occurred concerning the parties since the modification of child support in 1989 and that, therefore, the support obligation should remain at $50 per month. Specifically, the recommendation stated that only one of the parties' children remained under the age of 18 and that support should continue as to that child until the child reaches age 20, if the child remains in school. Moreover, the recommendation noted that, in 1993, the children received $6,434 in social security benefits through a disability claim of the appellee. The recommendation further noted that S & S Carry-Out belonged to Rhonda Harvey Spry, the appellee's wife, and that the appellee had an ownership interest in two separate businesses known as Triangle Auto Sales, Inc., and L.A.'s Nitelife, Inc., both of which resulted in no income to the appellee in 1993.

Although not discussed in the recommendation, the 1993 federal tax returns of the appellee and Rhonda Harvey Spry concerning the three businesses listed gross receipts or sales for S & S Carry-Out in the amount of $196,402 and gross receipts or sales for Triangle Auto Sales, Inc., in the amount of $91,378. The return for L.A.'s...