Wood v. Wood

• Decision Date: 10 December 1993
• Docket Number: No. 21764,21764
• Citation: 190 W.Va. 445,438 S.E.2d 788
• Court: West Virginia Supreme Court
• Parties: Mary Nelle WOOD, Plaintiff Below, Appellant, v. Craig Herbert WOOD, Jr., Defendant Below, Appellee.

Page 788

438 S.E.2d 788

190 W.Va. 445

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

No. 21764.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1993.

Decided Dec. 10, 1993.

[190 W.Va. 448] Syllabus by the Court

1. "[T]he amount of child support shall be in accordance with the child support guidelines established pursuant to W.Va.Code, 48A-2-8(a) [1989], unless the family law master or the court shall determine, in a written finding or a specific finding on the record, that the application of the guidelines would be either unjust, inappropriate, waived by the parties pursuant to the safeguards outlined in W.Va.Code, 48A-2-8(a)(1) [1989], or contrary to the best interests of the children or the parties." Syl. Pt. 3, in part, Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990).

2. "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." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

3. Where a court fails to properly apply the child support guidelines to a straightforward factual scenario without providing specific reasoning for such failure as required by Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990), the child support award shall be retroactive to the date the pleading seeking child support was initially filed. Such support becomes an entitlement and the right to receive the child support as properly calculated under the formula vests.

4. "The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained." Syl. Pt. 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

5. " 'By its terms, W.Va.Code § 48-2-16 [1976] requires a circuit court to consider the financial needs of the parties, their incomes and income earning abilities and their estates and the income produced by their estates in determining the amount of alimony to be awarded in a modification proceeding.' Syllabus point 2, Yanero v. Yanero, 171 W.Va. 88, 297 S.E.2d 863 (1982)." Syllabus, Louk v. Louk, 184 W.Va. 164, 399 S.E.2d 875 (1990).

6. Circumstances between the parties can substantially change once rehabilitative alimony is awarded, and where such change of circumstances justify an award of rehabilitative alimony, the award can be extended or modified to a permanent alimony award.

7. A rehabilitative alimony award may be extended or modified into a permanent alimony award where the dependent spouse demonstrates a substantial change in the circumstances under which rehabilitative alimony was awarded. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative alimony award to a permanent alimony award, the trial court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's inability to meet the terms of the rehabilitative alimony plan, as well as any of the other factors set forth in West Virginia Code § 48-2-16 (1992). The trial court should not consider modifying a rehabilitative alimony award to a permanent alimony award until the dependent spouse has had a reasonable amount of time to comply with the terms of the rehabilitative alimony award.

8. Once an automatic stay is lifted in a bankruptcy proceeding, the circuit court is not precluded from entering an award of attorney fees in a divorce action. However, pursuant to 11 U.S.C.A. § 523(a)(5) (West 1993), an award of attorney fees is only nondischargeable in a bankruptcy proceeding if such award is in the nature of support, alimony or maintenance. An award of attorney fees and costs is in the nature of support, alimony or maintenance when said fees and costs are incurred as a result of a party's attempt to obtain or modify child support, alimony or maintenance. To assist the bankruptcy court in its determination, the circuit court's order must be clear as to whether an award for attorney fees and costs is in the nature of child support, alimony or maintenance.

W. Dean DeLaMater, DeLaMater, Hagg & Bohach, Weirton, for appellant.

Frank Cuomo, Jr., Cuomo Law Offices, Wellsburg, for appellee.

WORKMAN, Chief Justice.

This case is before the Court upon an appeal of Mary Nelle Wood from the December 30, 1992, and December 31, 1992, orders of the Circuit Court of Brooke County in which the lower court granted the Appellant child and spousal support, but refused to consider an award of attorney fees. The Appellant contends that the lower court committed the following errors: 1) failed to award child support in accordance with the child support guidelines set forth in 6 West Virginia Code of State Regulations §§ 78-16-1 to -20 (1988); 2) improperly determined the effective date of the child support awarded; 3) improperly determined the amount and the effective date of rehabilitative spousal support; 4) improperly limited the rehabilitative spousal support to a two-year period and failed to award permanent alimony; and 5) refused to award attorney fees and expenses relative to child support and spousal support because of a bankruptcy proceeding initiated by the Appellee on May 30, 1991. The Appellee makes the following cross-assignments of error: 1) the circuit court erred in failing to attribute income to the Appellant before calculating the child support formula pursuant to 6 West Virginia Code of State Regulations § 78-16-4; 2) the circuit court improperly considered the income of the Appellee's second wife in determining the amount of child support; and 3) the circuit court erred in extending the Appellant's rehabilitative alimony for an additional two years. Having considered the parties' briefs, arguments and all other matters of record submitted before this Court, we conclude that the trial court erred in resolving some of these issues and accordingly we reverse and remand.

This appeal arises out of a divorce action which was originally appealed and remanded by this Court in 1991, for reconsideration of the child support award because the child support guidelines had not been utilized in determining the appropriate child support award. See Wood v. Wood, 184 W.Va. 744, 403 S.E.2d 761 (1991). At that time, this Court upheld the award of attorney fees in favor of the Appellant and stated that upon remand, the circuit court should award the Appellant "the reasonable attorney's fees and costs necessitated by her appeal." Id. at 756, 403 S.E.2d at 773.

On May 30, 1991, subsequent to this Court's remand, the Appellee filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Western District of Pennsylvania. The bankruptcy court issued an automatic stay of all further proceedings in the circuit court, until September 25, 1991, when the bankruptcy court ordered that the automatic stay be lifted with regard to child support ¹, stating that a support obligation is nondischargeable in bankruptcy.

On October 16, 1991, the Appellant filed a motion with the circuit court seeking a determination of the appropriate amounts of child support, as well as an award of attorney's fees and expenses pursuant to this Court's directive. The trial court, through application of the child support guidelines, ordered on March 3, 1992, that the child support award should be increased from the original award of $720 to $997.75 per month beginning on November 7, 1991, the date the hearing was conducted. The Appellant filed a motion seeking reconsideration of the child support award as well as attorney's fees and expenses incurred relating to the remand. On September 1, 1992, the Appellant also filed a petition for modification of alimony seeking a continuation of spousal support ² as well as attorney's fees and costs.

By orders dated December 23, 1992, and December 30, 1992, the trial court found that the Appellant needed approximately $2500 to complete training in education and counseling. The lower court determined additionally that the Appellant did not get $18,000 of an equitable distribution award due to the Appellee filing for bankruptcy. The lower court concluded that a substantial change of circumstances existed since the Appellant did not receive the equitable distribution award. The court ordered an extension of the Appellant's rehabilitative alimony for two years beginning on January 1, 1993, in the amount of $300 per month. At the end of the two-year period, the alimony was to terminate permanently. The court also ordered the child support award be increased to $1,136 per month based upon the child support guidelines. The effective date of the child support award was November 7, 1991. The lower court refused to award attorney fees and costs due to the Appellee's bankruptcy proceeding. ³

I.

A. CHILD SUPPORT AWARD

The first issue concerns the amount of child support awarded by the circuit court. The amount of child support awarded was affected by certain deductions from the Appellee's monthly gross income permitted by the lower court. Specifically, in a December 31, 1992, supplemental order the trial court permitted the Appellee to take a $444 deduction by the Appellee's credit union and refused to require the Appellee to take the maximum number of withholding exemptions, the effect of which decreased the Appellee's monthly pay, but insured a larger income tax refund for the Appellee. Because of these two deductions, the trial court declined to deduct the Appellee's alimony payments. The Appellant argues that the circuit court's approval of these deductions from the Appellee's gross income are contrary...