Wyant v. Wyant

• Decision Date: 17 December 1990
• Docket Number: No. 19263,19263
• Citation: 184 W.Va. 434,400 S.E.2d 869
• Court: West Virginia Supreme Court
• Parties: David L. WYANT v. Betsy G. WYANT.

Page 869

400 S.E.2d 869

184 W.Va. 434

David L. WYANT v. Betsy G. WYANT.

No. 19263.

Supreme Court of Appeals of West Virginia.

Dec. 17, 1990.

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), unless the master or the court sets forth, in writing, specific reasons for not following the guidelines in the particular case involved. W.Va.Code, 48A-2-8(a), as amended." Syllabus, Holley v Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989).

2. In order to facilitate appellate review of child support recommendations or orders, family law masters and/or circuit court judges must include as part of the record the worksheets reflecting the actual calculations which result from the application of the child support guidelines to the facts of a particular case.

3. "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." Syllabus point 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

4. "There are three broad inquiries that need to be considered in regard to rehabilitative alimony: (1) whether in view of the length of the marriage and the age, health, and skills of the dependent spouse, it should be granted; (2) if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and (3) consideration should be given to continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony." Syllabus point 3, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

5. The tender age of and custodial responsibilities for the children of a marriage must be considered when determining the amount and type of alimony to be awarded to a dependent spouse.

6. In cases in which the supporting spouse has an income and earning capacity substantially greater than that which the dependent spouse could realistically achieve under even the best of circumstances, rehabilitative alimony may not be sufficient if the dependent spouse is the primary caretaker of minor children and did not intend to join the work force on a full time basis prior to the dissolution of the marriage.

7. A court should not relieve a spouse from the duty to maintain the dependent spouse and children by providing only rehabilitative alimony simply because the dependent spouse may have the skills necessary to facilitate a return to the job market. Instead, the court should consider the following factors before opting for rehabilitative alimony over permanent alimony: (1) the dependent spouse's position in the home at the time of the divorce; (2) the age of the children; (3) the parties' income at the time of the divorce and their potential income in the future; and (4) the benefit, where economics permit, of the dependent spouse remaining in the home to care for the children.

8. " '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)." Syllabus, Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985).

8. "Rule 52(a) of the West Virginia Rules of Civil Procedure requires a trial court in a divorce proceeding to state on the record findings of fact and conclusions of law which support its decision. A divorce decree which does not comply with this mandatory requirement may be remanded for compliance." Syllabus point 3, Witte v. Witte, 173 W.Va. 281, 315 S.E.2d 246 (1984).

R. Joseph Zak, Charleston, for David L. Wyant.

Chester Lovett and Mary Katharine Cooper, Lovett, Cooper & Glass, Charleston, for Betsy G. Wyant.

BROTHERTON, Justice:

The appellant, Betsy G. Wyant, appeals from a final order of divorce entered on December 30, 1988, in the Circuit Court of Kanawha County, West Virginia, which affirmed in part and denied in part the recommended decision of the family law master.

The Wyants were married on June 2, 1979, in Kanawha County and have two sons, who were approximately five years old and one and one-half years old at the time of the final divorce hearing in June 1988. The Wyants were married for approximately eight years prior to their separation on November 22, 1987.

Mrs. Wyant, age thirty-three, was and remains the primary caretaker of the two children. In her brief, she states that she has "always cooked the meals, did the laundry and cleaned the home for the entire family" and has "contributed important and substantial homemaker services throughout the duration of the marriage." Although Mrs. Wyant has a degree in elementary education, she did not hold a permanent teaching position during her marriage. In September, 1987, shortly before separating from her husband, Mrs. Wyant also obtained a real estate license. However, she has not sold real estate since obtaining this license.

Mr. Wyant, age thirty-five, is an attorney practicing law with a firm in Charleston, West Virginia. In May, 1988, he was an associate earning a $70,000 a year income and netting approximately $3,600 per month. In January, 1989, shortly after the entry of the final divorce order, Mr. Wyant became a partner in the law firm.

After a hearing was held before Family Law Master William A. Tantlinger on March 29, 1988, a temporary order was entered on March 31, 1988, in which Mrs. Wyant was awarded custody of the two children, subject to reasonable visitation by Mr. Wyant. Mr. Wyant was directed to pay the monthly $800.44 mortgage payment on their jointly-owned home, as well as gas, telephone, water, sanitary, and cable bills, "with the aforesaid payments to be denominated as child support for and on behalf of the children." Mr. Wyant was also ordered to pay $800 per month temporary alimony and to maintain medical and hospitalization insurance.

Final hearings were held before the family law master on May 17, 1988, and July 1, 1988. Among other conclusions contained in his recommended decision, the family law master found the jointly-owned home to be marital property and recommended that it immediately be sold. The order provided that Mr. Wyant would be responsible for payment of the mortgage indebtedness and upkeep of the home, including insurance and taxes, pending sale of the property, for a maximum period of ninety days from the date of the order, after which time Mrs. Wyant would become responsible for these expenses until the house was sold.

Custody of the children was awarded to Mrs. Wyant, and child support was set at $495 per month per child, or $990 per month. Mrs. Wyant was awarded $400 per month rehabilitative alimony.

Both parties objected to the family law master's recommended decision and filed petitions for review in the Circuit Court of Kanawha County. Mrs. Wyant contested the child support and alimony awards and argued that it was unreasonable to expect her to make $700 per month mortgage payments for months or perhaps even years until the marital residence was sold, in light of the fact that she was to receive only $400 a month in alimony and thus was without the funds to make such a payment. Mrs. Wyant maintained that she and the children should be permitted to remain in the home until the youngest child turned eighteen, with Mr. Wyant making the mortgage payment as well as paying for the other related expenses. ¹

In his petition seeking review, Mr. Wyant contested the recommendation that Mrs. Wyant be awarded attorney's fees "in any amount because of [Mrs. Wyant's] financially secure position which makes her more than able to bear her own attorney's fees and costs incurred," as well as the award of rehabilitative alimony, "for the reason that [Mrs. Wyant] is a college graduate, licensed real estate agent, and well-qualified to support herself."

On December 28, 1988, a hearing was held in the Circuit Court of Kanawha County to review the family law master's recommended decision, which was affirmed in part and denied in part. In an order dated December 30, 1988, the circuit court found that Mrs. Wyant received between $300 and $400 per month in investment income. Mr. Wyant was ordered to pay $990 per month in child support and to pay Mrs. Wyant $400 per month rehabilitative alimony beginning on the first day of the month following the sale of the marital home and continuing for three years from the date of entry of the court order. The marital home valued at $160,000 was ordered immediately sold. Proceeds from the sale were to be used to (1) pay off the $64,764 mortgage obligation at Charleston National Bank; (2) pay off notes representing $36,000 owed to Mrs. Wyant's parents; and (3) pay $7,500 toward a line of credit reflecting the balance on a loan from Mr. Wyant's father. Mr. Wyant was to receive $15,787.90 as his separate property. The net proceeds remaining after all costs and expenses attendant to the sale were to be divided equally by the parties. However, the court ordered that Mr. Wyant would remain responsible for mortgage payments as well as taxes and insurance until the house was sold and that he would receive a $600 credit against the equity in the home for each payment he made. ²

Soon after the final divorce order was entered, Mrs. Wyant filed motions requesting permission to leave the State with the two children and seeking an increase in alimony and child support. Hearings were held on the motions on February 2 and 10, 1989. In an order dated February 17, 1989, the court found a substantial change in circumstances in the financial condition of the parties--a year-end $5,000 bonus received by Mr. Wyant and...