Wachter v. Wachter

• Decision Date: 12 November 2004
• Docket Number: No. 31598.,31598.
• Citation: 216 W.Va. 489,607 S.E.2d 818
• Parties: Gary D. WACHTER, Petitioner Below, Appellant, v. Sylvia L. WACHTER, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

607 S.E.2d 818

216 W.Va. 489

Gary D. WACHTER, Petitioner Below, Appellant, v. Sylvia L. WACHTER, Defendant Below, Appellee.

No. 31598.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 2004.

Decided November 12, 2004.

Christopher D. Janelle, Frank M. Aliveto, Sutton & Janelle, PLLC, Martinsburg, for the Appellant.

David P. Greenberg, Greenberg & Scales, PLLC, Martinsburg, for the Appellee.

DAVIS, Justice.

In this appeal by a former husband seeking to reduce or terminate his spousal support obligation, we are asked to determine whether the Circuit Court of Morgan County erred in finding no de facto marriage, as defined in W. Va.Code § 48-5-707(a)(2)(2001) (Repl.Vol.2001), between the former wife and her paramour. We find no error in the circuit court's ruling. Accordingly we affirm. In addition, we award the former wife her reasonable attorney's fees expended to defend this appeal.

I. FACTUAL AND PROCEDURAL HISTORY

Gary D. Wachter, appellant herein and petitioner below (hereinafter Mr. Wachter), and Sylvia L. Wachter, appellee herein and respondent below (hereinafter Ms. Wachter), were married on November 19, 1960. The couple remained married for approximately thirty-one years and three children were born of the marriage. Mr. and Ms. Wachter last resided together as husband and wife in 1990. In July 1991, after the parties' separation, Ms. Wachter began working at the Walmart Store in Winchester, Virginia, where she is currently employed.

The Wachters were granted a divorce on May 26, 1992, by order of the circuit court of Morgan County, West Virginia.¹ Settlement of the martial property was bifurcated and subsequently resolved by order of the circuit court of Morgan County dated January 5, 1994.² The order granted, inter alia, an award of permanent alimony to Ms. Wachter in the amount of $150 per week.

Thereafter, in or about 1996, Ms. Wachter began cohabiting with Mr. Leon Householder in the former marital home, which she was awarded in the divorce settlement. On February 13, 2002, Mr. Wachter filed a motion for reduction or termination of spousal support pursuant to W. Va.Code § 48-5-707 (2001) (Repl.Vol.2001)³ in the Family Court of Morgan County, asserting that a de facto marriage existed between Ms. Wachter and Mr. Householder. The family court denied the motion.

According to the family court's findings, Ms. Wachter and Mr. Householder have maintained a conjugal relationship for several years, however, the family court concluded that they have not held themselves out as married, they own no real estate or personal property together, they are financially independent from each other and have no joint bank accounts or credit cards, they share very little in the way of expenses and have only jointly made nominal improvements to Ms. Wachter's dwelling. In addition, the family court observed that the discrepancy between Mr. Wachter's income and Ms. Wachter's income was substantially the same as it had been at the time the initial order granting permanent alimony was entered in 1994.⁴ Based upon these findings, the family court concluded that Ms. Wachter's conduct did not rise to the level of a de facto marriage and that there was no substantial change in the parties' circumstances that would justify a modification of alimony.

Mr. Wachter appealed the family court order to the Circuit Court of Morgan County, claiming that the family court erred in finding that the relationship between Ms. Wachter and Mr. Householder was not a de facto marriage. Before the circuit court, Mr. Wachter alleged that there was uncontroverted evidence that Ms. Wachter and Mr. Householder used the same mailing address, that Ms. Wachter had referred to Mr. Householder as her husband, and that Ms. Wachter wore an engagement ring given to her by Mr. Householder.

The circuit court disagreed with Mr. Wachter's interpretation of the evidence. By order entered February 3, 2003, the circuit court found that the evidence regarding the various factors relied upon by Mr. Wachter was in dispute. The circuit court then ruled that "the Family Court Judge did not abuse his discretion by finding that the conduct of [Ms. Wachter] and Mr. Householder does not rise to the level of a de facto marriage," and that "the Family Court Judge did not ignore `uncontroverted facts' in his findings." Based upon these conclusions, the circuit court denied Mr. Wachter's petition for appeal.

Mr. Wachter then appealed to this Court to reverse the circuit court's order and find a de facto marriage between Ms. Wachter and Mr. Householder. Ms. Wachter filed a cross appeal complaining that the circuit court erred by refusing to award her attorney's fees. We granted the petition for appeal, and now affirm the February 3, 2003, order of the Circuit Court of Morgan County.

II. STANDARD OF REVIEW

In this case, we are asked to review an order of the Circuit Court of Morgan County that denied appeal of an order rendered by the Family Court of Morgan County, and in so doing, adopted the family court's findings. With respect to our review of such an order by a circuit court, we have held that

[i]n reviewing challenges to findings made by a family court judge 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. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003). The specific question we are asked to review relates to the factual finding that there was no de facto marriage between Ms. Wachter and Mr. Householder. Therefore, under Lucas, we apply a clearly erroneous standard. To the extend that our resolution of this factual question requires us to interpret W. Va.Code § 48-5-707, our review is de novo. Having set out the proper standards for our review, we move on to the substantive issue raised.⁵

III. DISCUSSION

A. De facto Marriage

Mr. Wachter argues that the circuit court erred in finding no de facto marriage between Ms. Wachter and Mr. Householder. Mr. Wachter complains that the family court's order omitted pertinent evidence that Mr. Householder conducts business in Ms. Wachter's home, keeps his business equipment there, does maintenance and upkeep on the home, and has made improvements to the home. Mr. Wachter asserts that the family court misconstrued W. Va.Code § 48-5-707⁶ in that it determined in its findings what factors of a de facto marriage were not present, while omitting those factors which were present.

Ms. Wachter responds that the family court and the circuit court both correctly determined that a de facto marriage does not exist between herself and Mr. Householder. She notes that W. Va.Code § 48-5-707 places the burden of proof on the payor, Mr. Wachter, to prove by a preponderance of the evidence that a de facto marriage exists. She asserts that the orders of the family court and the circuit court demonstrate that they considered the factors of W. Va.Code § 48-5-707 in light of the evidence and found that Mr. Wachter failed to meet his burden.

We begin our analysis with a review of the relevant statute. West Virginia Code § 48-5-707 was adopted by the West Virginia Legislature in 2001 and has been addressed by this Court on only one prior occasion. In the case of Lucas v. Lucas, 215 W.Va. 1, 4, 592 S.E.2d 646, 649, the circuit court affirmed an order of the family court finding a de facto marriage existed between the former wife and her paramour, and reducing the spousal support obligation of the former husband from $850.00 monthly to $700.00 monthly. The former husband appealed to this Court seeking, inter alia, to have his spousal support obligation further reduced or altogether terminated. Id. Consequently, the focus of the Lucas Court was primarily on the procedure used to determine whether and to what extent a spousal support obligation should be reduced pursuant to W. Va.Code § 48-5-707 after a finding of de facto marriage has been made. See Syl. pts. 5 and 8 of Lucas.⁷ Unlike the case at hand, there was no challenge to the finding of the existence of a de facto marriage in Lucas. It is the question of how a de facto marriage is determined under W. Va.Code § 48-5-707(a)(2) that we undertake today.

West Virginia Code § 48-5-707(a)(2) states:

In determining whether an existing award of spousal support should be reduced or terminated because of an alleged de facto marriage between a payee and another person, the court should elicit the nature and extent of the relationship in question. The court should give consideration, without limitation, to circumstances such as the following in determining the relationship of an ex-spouse to another person:

(A) The extent to which the ex-spouse and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife", or otherwise conducting themselves in a manner that evidences a stable marriage-like relationship (B) The period of time that the ex-spouse has resided with another person not related by consanguinity or affinity in a permanent place of abode;

(C) The duration and circumstances under which the ex-spouse has maintained a continuing conjugal relationship with the other person;

(D) The extent to which the ex-spouse and the other person have pooled their assets or income or otherwise exhibited financial interdependence;

(E) The extent to which the ex-spouse or the other person has supported the other, in whole or in part;

(F) The extent to which the ex-spouse or the other person has performed valuable services for the other;

(G) The extent to which the ex-spouse or the other person has

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