Stewart v. Stewart, 28741.
| Decision Date | 27 June 2001 |
| Docket Number | No. 28741.,28741. |
| Citation | 550 S.E.2d 86,209 W.Va. 550 |
| Parties | Willa Kay STEWART, Plaintiff Below, Appellee, v. Richard M. STEWART, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
Larry A. Winter, Esq., Winter, Johnson & Hill, P.L.L.C., Charleston, West Virginia, Attorney for Appellee.
Michael M. Fisher, Esq., Monica L. Robinson, Esq., Offutt, Fisher & Nord, Huntington, West Virginia, Attorneys for Appellant.
The appellant in this proceeding, Richard M. Stewart, claims that the Circuit Court of Cabell County erred in ordering him to pay his former wife permanent alimony of $3,837 per month. Specifically, he argues that the circuit court improperly found him guilty of mental cruelty, that the court erred in awarding his former wife permanent, rather than rehabilitative alimony, and that the court erred in setting the permanent alimony at $3,837 per month, when his actual monthly income was only $6,000 per month. Lastly, the appellant claims that he should not have been ordered to pay his former wife's attorney and expert witness fees.
The appellant, Richard M. Stewart, and the appellee, Willa Kay Stewart, were married on May 27, 1972, and they later had three children, only one of whom is now under the age of majority.
During the parties' marriage, the appellant worked as an accountant and he eventually became a partner in an accounting firm. Early in the parties' marriage, the appellee worked as a receptionist in a doctor's office, but after the birth of her children, she ceased working and became a full-time homemaker.
On October 28, 1994, after more than 22 years of marriage, the parties separated, and, following the separation, the appellant's former wife filed for divorce on the grounds of mental cruelty, or cruel and inhuman treatment, and irreconcilable differences.
The case was eventually heard by a family law master, and evidence was introduced showing that the appellant had on a number of occasions been seen in the company of a blonde female and had been observed kissing her in public. To explain this evidence, the appellant suggested that the blonde female was no more than a running companion and that he had kissed her simply to reassure her, and comfort her, when she learned that she had breast cancer. During the proceedings, extensive evidence was also introduced relating to the parties' expenses, income and assets.
At the conclusion of the hearings, the family law master issued a recommended decision. The recommended decision granted the parties a divorce on the ground of mental cruelty, awarded the appellant's wife custody of the parties' one child who was still a minor, ordered the appellant to pay child support, and ordered that the appellant pay his former wife $4,488 per month in permanent alimony. The order also distributed the parties' assets under the principles of marital distribution. In making the marital distribution, the family law master a valued the appellant's partnership interest in his accounting firm and awarded the appellant that asset, but directed that he pay his former wife for her one-half interest in that asset.
The appellant filed various exceptions to the recommended order of the family law master. Among other things, he challenged the finding of mental cruelty; he claimed that his former wife should not receive permanent alimony; he alleged that the amount of permanent alimony was excessive; and he claimed that he should not be required to pay his former wife's attorney and expert witness fees. The circuit court conducted a hearing on the motion for reconsideration and upheld the finding that the appellant had been guilty of cruel and inhuman treatment. The court also rejected the appellant's claim that his former wife should not be entitled to permanent alimony. The court, however, changed the amount of permanent alimony from $4,488 to $3,837 per month. Finally, the court directed the appellant to pay his former wife's attorney and expert witness fees.
As has previously been stated, in the present proceeding, the appellant claims that the circuit court erred in upholding the finding of mental cruelty. He also argues that the court erred in awarding permanent alimony, and that the amount of permanent alimony, $3,837 per month, was excessive when his monthly income was actually only $6,000 per month. Lastly, he claims that the court erred in directing him to pay his former wife's attorney and expert witness fees.
This Court has indicated that in cases of this type, the decision of a circuit court should be reviewed by applying a three-pronged analysis. First, the underlying findings of fact should be reviewed under a clearly erroneous standard; then questions of law should be reviewed de novo; finally, questions of statutory construction should be reviewed de novo. Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)
.
The appellant's first claim on appeal is that the trial court erred in failing to set aside the family law master's recommendation that his former wife be granted a divorce on the ground of mental cruelty, or cruel and inhuman treatment. He essentially argues that the evidence adduced does not support such a finding.
In Syllabus Point 1 of Witte v. Witte, 173 W.Va. 281, 315 S.E.2d 246 (1984), the Court stated that: Further, the Court has recognized that conduct by one party to a marriage which humiliates and embarrasses the other party and exposes the other party to public mockery of the marriage to such an extent that it tended to destroy the other party's mental and emotional well-being, is adequate to establish fault sufficient to support an award of alimony. See, Dyer v. Tsapis, 162 W.Va. 289, 249 S.E.2d 509 (1978)
.
In the present case, the family law master specifically found that the appellant had been observed traveling in a car with a woman who later turned out to be the blonde woman whom the appellant was observed kissing. There was also evidence that friends of the appellant's former wife made her aware of the fact that the appellant was exercising in a public park with this same woman on a number of occasions. Other evidence showed that when the appellant's former wife confronted him with this information and requested the name of the blonde, the appellant practiced deception. Finally, the appellant's former wife had specifically requested that the appellant refrain from continuing the relationship because it was embarrassing and humiliating to her and their children. In spite of this, the appellant continued to see the blonde. The appellant admitted kissing the blonde, but explained that the kiss was merely a consoling kiss designed to comfort the blonde after she learned that she had cancer.
On appeal, the real question which the Court must address is whether the circuit court's finding of mental cruelty was clearly erroneous in light of this evidence. While the appellant's evidence suggests that his relationship with the blonde, and the kiss were purely innocent, it is clear that his former wife found the situation to be extremely disturbing and embarrassing and humiliating and that the appellant continued his relationship with the blonde, in circumstances suggesting a romantic interest, after the appellant asked him to terminate it. The Court believes that the overall evidence in the case would support a finding of mental cruelty and that the circuit court's finding on that point was not clearly erroneous.
A second claim made by the appellant is that the circuit court erred in adopting the family law master's recommendation that the appellant's former wife receive permanent alimony. The appellant argues that the facts of the case indicate that, at most, his former wife should receive rehabilitative alimony rather than permanent alimony.
In the Syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977), this Court stated:
Questions relating to alimony and to 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.
Further, in Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984), the Court discussed when a spouse should receive rehabilitative alimony rather than permanent alimony. The Court stated that the concept of rehabilitative alimony rests upon the premise that by encouraging a divorced spouse to become self-reliant, some of the financial problems to a divorce may be alleviated, and some sense of psychological fulfillment and independence may be instilled in the divorced spouse. The Court noted that it is utilized mainly where a younger dependent spouse entered marriage with marketable skills, which then deteriorated through non-use, or the dependent spouse evidenced a capability for self-support which could be developed through training or academic study. The Court concluded that the key factors in determining whether an award of rehabilitative alimony was appropriate were whether the dependent spouse had potential work skills and whether relative work was also available in the marketplace. The Court also indicated that such factors as age and health were significant because they reflected upon the ability to work and they were factors in job availability.
In the present case, that the appellant's former wife is now 50 years old, and she and the appellant lived together as husband and wife for 22 years. Although she did have a part-time job early during the...
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