Uldrich v. Uldrich, 23036

• Decision Date: 12 July 1996
• Docket Number: No. 23036,23036
• Citation: 196 W.Va. 663,474 S.E.2d 593
• Court: West Virginia Supreme Court
• Parties: William S. ULDRICH, Plaintiff Below, Appellee, v. Barbara ULDRICH, Defendant Below, Appellant.

Page 593

474 S.E.2d 593

196 W.Va. 663

William S. ULDRICH, Plaintiff Below, Appellee, v. Barbara ULDRICH, Defendant Below, Appellant.

No. 23036.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1996.

Decided July 12, 1996.

Syllabus by the Court

1. "A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).

2. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

3. " 'W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship.' Syllabus point 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992)." Syl. Pt. 1, Durnell v. Durnell, 194 W.Va. 464, 460 S.E.2d 710 (1995).

4. "Alimony may be awarded under W.Va.Code, 48-2-4(a)(7) against a 'faultless' party if 'principles of justice' so require, considering the financial needs of the parties and other factors listed in Code, 48-2-16." Syl. Pt. 1, F.C. v. I.V.C., 171 W.Va. 458, 300 S.E.2d 99 (1982).

5. "In enacting our equitable distribution statute, the Legislature did not intend fault to be considered as a factor in determining the division of marital property. However, the Legislature did designate marital fault as a factor to be considered in awarding alimony under the provisions of W.Va.Code, 48-2-15(i)." Syl. Pt. 1, Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991).

6. "In determining the amount of alimony or child support that may be obtained, consideration may be given not only to regular wages earned, but also to the amount of overtime pay ordinarily obtained." Syl. Pt. 1, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).

James Wilson Douglas, Sutton, for Appellee.

George M. Cooper, Sutton, for Appellant.

PER CURIAM.

This is an appeal by Barbara Uldrich (hereinafter "Appellant") from a November 7, 1994, order of the Circuit Court of Braxton County denying alimony and approving a reduction in child support from the amount initially recommended by the family law master. The Appellant contends that the lower court erred in modifying the family law master's recommendation regarding alimony and in approving the reduction in child support from $558 awarded in the family law master's temporary order to $429 awarded in the master's final recommended order. We agree with the Appellant's contention that the lower court improperly denied an alimony award, and we remand for the entry of an alimony order consistent with the findings of the family law master. With regard to the determination of child support, however, we affirm the findings of the lower court.

I.

The Appellant and William S. Uldrich (hereinafter "Appellee") were married on February 2, 1967, and two children were born of the marriage. ¹ In March 1992, the Appellee informed the Appellant that the parties would separate for one year and thereafter divorce. On March 25, 1993, the Appellee filed for divorce, claiming mental cruelty, voluntary separation for one year, and irreconcilable differences. By answer dated April 14, 1993, the Appellant admitted voluntary separation and irreconcilable differences, but denied mental cruelty.

By order dated August 9, 1993, the family law master granted the Appellant $558 in monthly child support and the use of the marital home. A final hearing was held before the family law master on November 18, 1993, and an order was entered on December 23, 1993, establishing alimony at $403 per month, the exact amount of the monthly payment due on a GMC vehicle purchased prior to separation for the Appellant's use. The family law master also ordered the Appellee to continue to pay $400 per month in alimony subsequent to the final GMC payment and ordered that alimony be discontinued when the Appellant reached age sixty-two or remarried. The family law master also reduced the child support from $558 to $429 and ordered the Appellee to pay the $171 monthly mortgage payment.

The Appellee filed a petition for review on January 6, 1994, but the Appellant failed to file a petition for review within the ten-day time limitation, pursuant to West Virginia Code § 48A-4-17 (1995). ² Subsequent to a January 28, 1994, hearing before the lower court, the Appellant received full ownership of the marital home, ³ thereby avoiding a forced sale of the real estate as contemplated by the family law master. Based upon that alteration, the lower court relieved the Appellee of the obligation to pay alimony, reasoning that the $40,000 one-half of the marital home constituted a "lump sum alimony" award. ⁴ The lower court explained that alimony, "where no fault has been shown on the part of the Plaintiff [Appellee], is inequitable, unfair and unsupported by the evidence...."

On appeal, the Appellant contends that the lower court erred in modifying the family law master's recommendation regarding alimony and in approving the reduction of child support from $558 to $429 per month.

II.

In syllabus point one of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995), we enunciated the following standard of review: "A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard." With regard to findings issued by both a family law master and a circuit court, such as the child support figure in the present case, we explained the following in syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

194 W.Va. at 264, 460 S.E.2d at 265, syl. pt. 1.

West Virginia Code § 48-2-15(i) (1995) governs alimony awards and provides, in pertinent part, as follows:

In determining whether alimony is to be awarded, or in determining the amount of alimony, if any, to be awarded under the provisions of this section, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship.

In implementing West Virginia Code § 48-2-15(i), we explained the following in syllabus point one of Durnell v. Durnell, 194 W.Va. 464, 460 S.E.2d 710 (1995):

"W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship." Syllabus point 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992).

194 W.Va. 464, 460 S.E.2d 710, syl. pt. 1.

We have previously emphasized that the primary standard for the award of alimony is the financial position of the parties. F.C. v. I.V.C., 171 W.Va. 458, 460, 300 S.E.2d 99, 101-02 (1982). We also specifically explained in syllabus point one of F.C. that "[a]limony may be awarded under W.Va.Code, 48-2-4(a)(7) against a 'faultless' party if 'principles of justice' so require, considering the financial needs of the parties and other factors listed in Code, 48-2-16." 171 W. Va. at 458, 300 S.E.2d at 99, syl. pt. 1. West Virginia Code section 48-2-16(b), in pertinent part, provides as follows:

The court shall consider the following factors in determining the amount of alimony, child support or separate maintenance, if any, to be ordered under the provisions of sections thirteen and fifteen of this article, as a supplement to or in lieu of the separation agreement:

(1) The length of time the parties were married;

(2) The period of time during the marriage when the parties actually lived together as husband and wife;

(3) The present employment income and other recurring earnings of each party from any source;

(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;

(5) The distribution of...