Wood v. Wood

• Decision Date: 28 March 1991
• Docket Number: 19677,Nos. 19668,s. 19668
• Citation: 403 S.E.2d 761,184 W.Va. 744
• Court: West Virginia Supreme Court
• Parties: Mary Nelle WOOD, Plaintiff Below, Appellant, v. Craig Herbert WOOD, Jr., Defendant Below, Appellee. Mary Nelle WOOD, Plaintiff Below, Appellee, v. Craig Herbert WOOD, Jr., Defendant Below, Appellant.

Page 761

403 S.E.2d 761

184 W.Va. 744

Mary Nelle WOOD, Plaintiff Below, Appellant, v. Craig Herbert WOOD, Jr., Defendant Below, Appellee.

Mary Nelle WOOD, Plaintiff Below, Appellee, v. Craig Herbert WOOD, Jr., Defendant Below, Appellant.

Nos. 19668, 19677.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1991.

Decided March 28, 1991.

Syllabus by the Court

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

2. "Equitable distribution under W.Va.Code, 48-2-1, et seq., is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets. The third step is to divide the marital estate between the parties in accordance with the principles contained in W.Va.Code, 48-2-32." Syllabus Point 1, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

3. "Unless the parties have made a joint stipulation or property settlement agreement, under Rule 52(a) of the West Virginia Rules of Civil Procedure the circuit court is required to make findings of fact and conclusions of law in its final order which reflect each step of the equitable distribution procedure. The same obligation is imposed upon a family law master under W.Va.Code, 48A-4-4(d)." Syllabus Point 2, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

4. "Where, during the course of the marriage, one spouse transfers title to his or her separate property into the joint names of both spouses, a presumption that the transferring spouse intended to make a gift of the property to the marital estate is consistent with the principles underlying our equitable distribution statute." Syllabus Point 4, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).

5. "In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily enumerated factors, including: (1) monetary contributions to marital property such as employment income, other earnings, and funds which were separate property; (2) non-monetary contributions to marital property, such as homemaker services, child care services, labor performed without compensation, labor performed in the actual maintenance or improvement of tangible marital property, or labor performed in the management or investment of assets which are marital property; (3) the effect of the marriage on the income-earning abilities of the parties, such as contributions by either party to the education or training of the other party, or foregoing by either party of employment and education; or (4) conduct by either party that lessened the value of marital property. W.Va.Code § 48-2-32(c) (1986)." Syllabus Point 1, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).

6. "An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors." Syllabus Point 3, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).

7. "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 [incurred] [sic] during the course of the litigation." Syllabus Point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

W. Dean DeLaMater, DeLaMater, Hagg & Bohach, Fred Risovich, II, Weirton, for Mary Nelle Wood.

Frank Cuomo, Jr., Wellsburg, for Craig Herbert Wood, Jr.

PER CURIAM:

Both Mary Nelle Wood and her former husband, Craig Herbert Wood, Jr., appeal the final order of the Circuit Court of Hancock County that granted the parties a divorce on the grounds of irreconcilable differences, distributed property and awarded child support. On appeal, Mrs. Wood contends that the circuit court failed to award child support in accordance with the child support guidelines and failed to classify and evaluate certain property properly. Mr. Wood appeals the circuit court's unequal marital property distribution and award of attorneys' fees. In light of our recent holdings in Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990) and Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990), we reverse the circuit court and remand the case.

After seventeen years of marriage, Mr. and Mrs. Wood separated on March 1, 1988 and divorced on August 30, 1989, on the grounds of irreconcilable differences. ¹ During the early course of the marriage Mrs. Wood taught school but, after the birth of their first child in 1976, she became a full-time homemaker while Mr. Wood continued his employment with Weirton Steel. Mr. and Mrs. Wood had two more children in 1982 and 1984 and Mrs. Wood continued to be a full-time mother and homemaker.

During the marriage, Mrs. Wood inherited some money from her mother and received a gift from her grandfather of some stock in the Suburban Savings and Loan Association. ² Mrs. Wood's grandfather also gave her some other stock when she graduated from high school that remains titled in her maiden name. Mrs. Wood placed her inheritance and the proceeds from the sale of the Suburban stock in bank accounts, certificates of deposit or Treasury bills that were jointly titled. In 1980, most of Mrs. Wood's inheritance, about $40,000, was used as the downpayment on the jointly titled marital house. In 1985 Mrs. Wood placed the proceeds from the sale of the Suburban stock, about $29,000, in a jointly titled Treasury bill. In 1987, the stock proceeds were divided between Mr. and Mrs. Wood. Mrs. Wood maintains that Mr. Wood forced her to divide the stock proceeds by removing about $21,000 from their joint savings account. Mr. Wood acknowledges that he removed the money from the joint savings account but maintains that his share of the stock proceeds, about $15,000, was a gift from Mrs. Wood. ³ Mr. Wood put his half of the stock proceeds in his separate account at the Tin Mill Credit Union and returned the $21,000 to the joint saving account. The record indicates that Mrs. Wood also placed her half in a separate account. The only separate asset of Mr. Wood that appears in the record is his account with the Tin Mill Credit Union.

The Circuit Court of Hancock County awarded Mrs. Wood custody of the children with reasonable visitation rights to Mr. Wood. ⁴ The circuit court ordered Mr. Wood to pay $720 per month in child support and $500 per month in rehabilitative alimony for a three year period. The court then listed the marital property with evaluations and distributed the marital property. The court's distribution of marital property was unequal in that Mrs. Wood was favored by about $17,000. The circuit court found that the unequal distribution was justified because Mrs. Wood used her inheritance for the downpayment of the marital house. The court also required Mr. Wood to pay part of Mrs. Wood's attorneys' fees and expenses.

On appeal, Mrs. Wood alleges that the circuit court failed to follow the child support guidelines to determine the amount of child support and to classify and evaluate certain property correctly. In his appeal, Mr. Wood alleges that the circuit court erred in ordering an unequal distribution of marital property and in requiring Mr. Wood to pay attorneys' fees in excess of $12,204. Because we find merit in the allegations concerning child support and the classification of property we reverse the order of the circuit court.

I

The child support guidelines must be considered in every case concerning child support. Gardner, supra; Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990); Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990); Holley v. Holley , 181 W.Va. 396, 382 S.E.2d 590 (1989). W.Va.Code, 48A-2-8(e) [1989], states that the child support "guidelines shall have application to cases of divorce, paternity, actions for support, and modifications thereof." In the Syllabus, in part, Holley id., we said:

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).

W.Va.Code, 48A-2-8(a) [1989], requires the director of the child advocate office to establish, by legislative rule, guidelines for the award of child support. 6 W.Va.Code of State Rules 78-16-1 to 78-16-20 [1988] is the current version of the rules. W.Va.Code, 48A-2-8(a) [1989] states, in pertinent part:

There shall be a rebuttable presumption, in any proceeding before a family law master or circuit court judge for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case. The guidelines shall not be followed:

(1) When the child support award proposed to be made pursuant to the guidelines has been disclosed to the parties and each party has made a knowing and intelligent waiver of said amount, and the support obligors have entered into an agreement which provides for the custody and support of the child or children of the parties; or

(2) When the child support award proposed to be made pursuant to the guidelines would be contrary to the best interests of the child or children, or contrary to the...