Pearson v. Pearson
Annotate this CaseJanuary 1997 Term
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No. 23679
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KAREN PEARSON,
Plaintiff Below, Appellant
V.
ROGER PEARSON,
Defendant Below, Appellee
____________________________________________________________________
Appeal from the Circuit Court of Logan County
Honorable Roger L. Perry, Judge
Civil Action No. 93-C-409
AFFIRMED IN PART; REVERSED
IN PART; AND REMANDED
____________________________________________________________________
Submitted: February 5, 1997
Filed: March 21, 1997
Marcelle St. Germain, Esq. James A. Walker, Esq.
Logan, West Virginia Logan, West Virginia
Attorney for Appellant Attorney for Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "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).
2. "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).
3. "Under the clearly erroneous standard, if the findings of fact and the
inferences drawn by a family law master are supported by substantial evidence, such findings
and inferences may not be overturned even if a circuit court may be inclined to make
different findings or draw contrary inferences." Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195
W.Va. 384, 465 S.E.2d 841 (1995).
4. "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." Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).
5. "'Alimony must not be disproportionate to a [person's] ability to pay
as disclosed by the evidence before the court.' Syllabus, Miller v. Miller, 114 W.Va. 600,
172 S.E. 893 (1934)." Syl. Pt. 2, Sandusky v. Sandusky, 166 W.Va. 383, 271 S.E.2d 434
(1981).
6. "In appropriate circumstances, an enhancement of an award of
maintenance/alimony based on the degree of fault is justified. Enhancement of a
maintenance/alimony award by a fault premium may be awarded when additional support
is required to reimburse the injured spouse for expenses directly related to the fault or to
assure that the injured spouse continues to have the standard of living enjoyed during the
marriage. A fault premium may also be applied to discourage the fault or behavior that
contributed to the dissolution of the marriage. In determining an award of
maintenance/alimony enhanced by a fault premium, the circuit court must consider the
concrete financial realities of the parties." Syl. Pt. 4, Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996).
7. Although the Railroad Retirement Act of 1974, 45 U.S.C. 231m,
expressly precludes Tier I benefits from consideration as divisible marital property, Tier I
benefits may be used for the purpose of making alimony payments when vested.
8. The Railroad Retirement Act of 1974, 45 U.S.C. 231m specifically
prohibits offsetting Tier I benefits, as set out in 45 U.S.C. 231b(a)(1), in a divorce
proceeding. Therefore, a court cannot offset an equal division of marital assets to compensate
a spouse for not being awarded any portion of the other spouse's Tier I benefits.
9. W.Va. Code 48-2-15(b)(9) (1996) provides "[w]hen allegations of
abuse have been proven, the court shall enjoin the offending party[.]" This provision makes
it mandatory that a restraining order be entered against a spouse where it is shown by a
preponderance of the evidence that such spouse abused the other spouse.
10. "'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)." Syl. Pt. 6, Wood v. Wood, 184 W.Va.
744, 403 S.E.2d 761 (1991).
11. "Pursuant to W.Va. Code 48-2-13(a)(6)(A), the court in a divorce
proceeding may compel either party to pay attorney's fees and court costs reasonably
necessary to enable the other party to prosecute or defend the action in the trial court." Syl.
Pt. 12, Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996).
12. "'In divorce actions, an award of attorney's fees rests initially within the
sound discretion of the family law master and should not be disturbed on appeal absent an
abuse of discretion. In determining whether to award attorney's fees, the family law master
should consider a wide array of factors including the party's ability to pay his or her own fee,
the beneficial results obtained by the attorney, the parties' respective financial conditions, the
effect of the attorney's fees on each party's standard of living, the degree of fault of either
party making the divorce action necessary, and the reasonableness of the attorney's fee
request.' Syl. pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996)." Syl. Pt. 5,
Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996).
13. Attorney's fees in a divorce proceeding may be awarded to a party who
received free legal aid services or pro bono legal representation; however, such an award is
to compensate and reimburse legal counsel and shall not be paid to the litigant.
Davis, Justice:
This appeal arises from an order of the Circuit Court of Logan County which
granted a divorce to Karen Pearson, plaintiff/appellant, (hereinafter referred to as plaintiff)
and Roger Pearson, defendant/appellee, (hereinafter referred to as defendant). On appeal the
plaintiff alleges that the circuit court committed error with respect to the following: (1) the
amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the
termination of alimony when defendant reaches 65; (4) the issuance of a restraining order;
(5) awarding defendant a credit union account; (6) the failure to award attorney's fees; and
(7) awarding defendant a Nissan Maxima, goods and furnishings, and the marital home.
I.
FACTUAL BACKGROUND
The parties were married on September 25, 1969. Two children, now adults,
were born from the marriage. The record indicates that the plaintiff did not work outside the
home during the marriage. Plaintiff was a full-time homemaker. The defendant was
employed throughout the marriage as a railroad employee with CSX Transportation.
The first significant problem between the parties occurred in 1987. In 1987,
plaintiff suffered facial injuries as a result of a domestic fight with the defendant. The parties
separated temporarily after this incident.
The record does not disclose any problems in the marriage after the 1987
incident, until the plaintiff filed for divorce in May of 1993. As grounds for divorce the
complaint alleged cruel treatment, alcoholism and irreconcilable differences. The defendant
filed a counterclaim seeking a divorce on the grounds of cruelty and irreconcilable
differences.
The family law master held evidentiary hearings in this matter on October 12,
1994 and November 16, 1994. A recommended decision, that included granting a divorce on
grounds of irreconcilable differences, was filed by the family law master on April 14, 1995.
The plaintiff petitioned for review of the recommended order. The circuit court issued a final
order on March 28, 1996, which adopted all of the family law master's recommendations
except one. The circuit court found that the family law master abused her discretion in
awarding the sum of $150 per month as alimony to plaintiff. The circuit court increased
alimony to $375 a month. The plaintiff thereafter prosecuted this appeal. The plaintiff has
assigned as error: (1) the amount of permanent alimony; (2) the denial of lump sum or
enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the
issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure
to award attorney's fees; and (7) the award to defendant of the Nissan Maxima, goods and
furnishings, and the marital home.
II.
STANDARD OF REVIEW
We begin our analysis by setting out the standard in which this Court reviews challenges to an equitable distribution order of a circuit court. We outlined that standard succinctly in syllabus point 1 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.
See also Syl. Pt. 2, Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451 (1995). It was
noted by this Court in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995) that "[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." We explained in syllabus point 3 of
Stephen L.H., that "[u]nder the clearly erroneous standard, if the findings of fact and the
inferences drawn by a family law master are supported by substantial evidence, such findings
and inferences may not be overturned even if a circuit court may be inclined to make
different findings or draw contrary inferences."
With the above principles in view we now turn seriatim to plaintiff's
assignments of error.
A.
Sufficiency Of Alimony Amount
The plaintiff contends that her award of $375 per month as alimony is insufficient to maintain the style of living to which she was accustomed during her marriage. Factors which a circuit court must consider in determining the issue of alimony are set out in W.Va. Code 48-2-16(b) (1984).(1) This Court noted in syllabus point 1, in part, of Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898 (1974), modified, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978) that "no specific weight is assigned to any one criterion, and the trial judge in his sound discretion may accord such weight to any or all of these criteria as he deems appropriate." We have also long held that "[t]he decision to grant or deny alimony is reviewed by this Court for an abuse of discretion." Banker v. Banker, 196 W.Va. 535, 548, 474 S.E.2d 465, 478 (1996). In the single syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977) we held that:
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.
See Syl. Pt. 2, Wood v. Wood (II), 190 W.Va. 445, 438 S.E.2d 788 (1993); Syl. Pt. 8, Wyant
v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990); Syl., Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985).
In Banker we gave the following explanation of the three principal ways in
which an abuse of discretion might arise:
An abuse of discretion occurs in three principal ways:
(1) when a relevant factor that should have
been given significant weight is not considered;
(2) when all proper factors, and no improper ones,
are considered, but the family law master in
weighing those factors commits a clear error of
judgment; and (3) when the family law master
fails to exercise any discretion at all in issuing the
order.
Banker, 196 W.Va. at 548, 474 S.E.2d at 478.
In the instant proceeding, the family law master recommended alimony for the
plaintiff as follows: (1) rehabilitative alimony in the amount of $500 per month for thirty
months, which totaled $15,000; and (2) permanent alimony of $150 per month until plaintiff
remarries, either party dies, the defendant attains the age of sixty-five, or further order of the
court. The circuit court adopted the alimony recommendation except for the amount of
permanent alimony. The final order of the circuit court found "[t]hat the award of permanent
alimony by the Family Law Master in the amount of one hundred fifty dollars was an abuse
of discretion when the chances of rehabilitation of the plaintiff are carefully considered in
light of her age, education, and job potential in the current economic situations." The circuit
court determined that a fair amount of permanent alimony would be $375 per month.
Plaintiff urges this Court to award her permanent alimony in the amount of
$1,300 per month. The record indicates that at the time of the divorce, the defendant's net
income was $2,800 per month. With the exception of one credit card debt, the defendant was
ordered to pay all of the marital debts.(2) Additionally, the defendant was required to borrow
$34,000 to pay the plaintiff her equitable share of the marital home. In view of the limited
financial resources of the parties during the marriage and the assumption of the marital debts
by the defendant, there is no factual or legal basis to support an alimony award of $1,300 per
month. We made abundantly clear in syllabus point 2 of Sandusky v. Sandusky, 166 W.Va.
383, 271 S.E.2d 434 (1981) that "'[a]limony must not be disproportionate to a [person's]
ability to pay as disclosed by the evidence before the court.' Syllabus, Miller v. Miller, 114
W.Va. 600, 172 S.E. 893 (1934)."(3)
Moreover, we pointed out in Hardy v. Hardy, 197 W.Va. 243, ___, 475 S.E.2d 335, 339 (1996) that "Stephen L.H. v. Sherry L.H. and its progeny require substantial
deference be given to a family law master's factual findings and recommendations[.]" The
circuit court rejected the family law master's recommendation on the amount of alimony on
the grounds that employment prospects for the plaintiff were nonexistent in view of her age,
education and the current job market. The record on appeal is void of any findings to
support the circuit court's decision to set aside the family law master's recommendation of
$150 per month alimony. The order is void of any analysis by the circuit court of the factors
to be considered when one determines alimony pursuant to W.Va. Code 48-2-16(b). As
such, the final order is insufficient regarding the issue of alimony as the order provides no
factual and legal basis by which this court can facilitate meaningful review(4). See Province
v. Province, 196 W.Va. 473, 473 S.E.2d 904 (W.Va. 1996). Therefore, we are remanding
this issue of alimony with instructions that the circuit court reinstate the recommendation of
the family law master or provide findings to support an award of $375 per month.
B.
Enhancement Award
The plaintiff contends that the circuit court should have granted her an
additional lump sum award in alimony to compensate her for the physical and emotional
abuse she incurred during the marriage. Plaintiff indicated that a lump sum alimony award
of $34,000 should have been granted. Additionally, the plaintiff contends the lump sum
alimony award is justified on the grounds that the defendant was at fault in causing the
divorce.
We addressed the issue of an "enhancement" of an alimony award in syllabus point 4 of Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996), where we said:
In appropriate circumstances, an enhancement of an
award of maintenance/alimony based on the degree of fault is
justified. Enhancement of a maintenance/alimony award by a
fault premium may be awarded when additional support is
required to reimburse the injured spouse for expenses directly
related to the fault or to assure that the injured spouse continues
to have the standard of living enjoyed during the marriage. A
fault premium may also be applied to discourage the fault or
behavior that contributed to the dissolution of the marriage. In
determining an award of maintenance/alimony enhanced by a
fault premium, the circuit court must consider the concrete
financial realities of the parties. (emphasis added).
The record in this case chronicles one incident where the defendant and plaintiff engaged in
a fight and she sustained facial injuries. That incident occurred in 1987. The plaintiff left
the home for a short period after this incident, but returned for six years before filing the
instant divorce action. The record indicates further allegations by the plaintiff that she was
abused, but no specific incidents were confirmed by testimony or documentary evidence. The
plaintiff also alleges emotional abuse, but cites no specific pattern of conduct by the
defendant that could reasonably be asserted as emotional abuse. Additionally, the divorce
granted in this case was based upon irreconcilable differences.
Neither the family law master nor the circuit court deemed the plaintiff's abuse
allegations to be supported by the evidence. Mere allegations standing alone without any
proper proof or testimony cannot be considered as evidence by the family law master or
circuit court. We indicated in Williams v. Precision Coil, Inc., 194 W.Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) that "self-serving assertions without factual support in the
record" have no force or effect. In Powderidge Unit Owners Ass'n v. Highland Properties,
Ltd., 196 W.Va. 692, 707, 474 S.E.2d 872, 887 (1996) we categorized such self-serving
averments as "nothing more than an attorney's argument lacking evidentiary support."
(Citation omitted.) Evidence presented in a divorce case must be consistent with our Rules
of Civil Procedure, Rules of Evidence and Rules of Practice and Procedure for Family Law.
A divorce proceeding is not an opportunity for lawyers to circumvent our procedural and
evidentiary rules. Those rules are applicable in divorce actions with the same force and
vibrancy as in any other civil proceeding.
Even if this Court disagreed with the circuit court and family law master on the
issue of abuse by the defendant, when we "consider the concrete financial realities of the
parties," it is inconceivable that the defendant would be able to pay the plaintiff an additional
$34,000 as an alimony enhancement award. See Syl. Pt. 2, Sandusky v. Sandusky, supra.
Further, based upon the record before this Court, the plaintiff has failed to show where an
enhancement alimony award is justified in this case.
C.
Termination Of Alimony
The record indicates that at the time of the final hearing before the family law
master the plaintiff was 46 years old and the defendant was 50 years old. The permanent
alimony award given to the plaintiff automatically terminates, barring other factors, when
the defendant turns 65 years old. The plaintiff presents two arguments regarding termination
of her alimony award when the defendant reaches 65 years of age. Both arguments relate
to defendant's retirement benefits.
Retirement benefits for railroad employees are governed by federal statute. As
a railroad employee the defendant, upon retirement, is entitled to benefits under the Railroad
Retirement Act of 1974, (hereinafter the "Act") 45 U.S.C. 231 et seq. The Act's scheme
provides for two tiers of benefits which resemble both a private pension program and a social
welfare plan. Tier I benefits are equivalent to those the employee would receive if covered
by the Social Security Act, 42 U.S.C. 401 et seq. See 45 U.S.C. 231a(a)(1)(5) and
231b(a)(1).(6) Tier II benefits are supplemental annuities which, like a private pension plan,
are tied to earnings and career service. See 45 U.S.C. 231a(b)(7) and 231b(e).(8)
In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979)
the United States Supreme Court considered whether an award of railroad retirement benefits
to a spouse when dividing marital assets upon divorce was prohibited by the Act. The United
States Supreme Court held that 45 U.S.C. 231m specifically prohibited the division of
benefits payable under the Act as property in a divorce. However, in 1983, Congress
provided an amendment to 231m which expressly permits characterization of Tier II
benefits as property subject to distribution upon divorce. See 45 U.S.C. 231m(b)(2).
Notwithstanding the 1983 amendment, the holding in Hisquierdo is still controlling with
respect to Tier I benefits. See Syl. Pt. 1, in part, McGraw v. McGraw, 186 W.Va. 113, 411 S.E.2d 256 (1991) ("The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231m, expressly
precludes from consideration as divisible marital property the basic railroad retirement
annuity, which provides benefits equivalent to benefits under the Social Security Act.").
The plaintiff acknowledges that she is entitled to and has been awarded a share
of the defendant's retirement benefits under the Tier II scheme of the Act. The plaintiff
contends, however, that her Tier II benefits will not trigger until she reaches 65 years of age.
This situation, contends the plaintiff, means that there will be a four year gap when she
receives no maritally related income. We disagree. Our reading of 45 U.S.C. 231a(c)(2)
indicates that the plaintiff is eligible to receive Tier II benefits immediately upon reaching
the age of 62. Therefore, plaintiff will be delayed one year (at age 61 when the defendant
would have turned 65) from receiving her Tier II income arising out of the marriage.
This Court has not and will not award alimony based upon anticipated future events. Alimony is based upon the financial realities of the parties at the time of the divorce. See F.C. v. I.V.C., 171 W.Va. 458, 460, 300 S.E.2d 99,101 (1982) ("Concrete financial realities of the parties must be a court's primary inquiry in any alimony award.").
However, nothing precludes plaintiff, when she attains age 61 from filing the appropriate petition to modify the alimony award. The circuit court's order specifically provided: "permanent alimony until plaintiff remarries, either party dies, defendant attains the age of 65, or further order of the court." (Emphasis added.) The circuit court has continuing jurisdiction to modify alimony based upon the financial realities of the parties. See Syl. Pt. 2, Banker:
Under W.Va. Code, 48-2-15(e) (1993), a circuit court has
jurisdiction to hear and rule upon a motion seeking modification
of a decree to include alimony, as the ends of justice may so
require, even though the decree previously denied alimony or
did not address the issue of alimony. To the extent that Savage
v. Savage, 157 W.Va. 537, 203 S.E.2d 151 (1974), and its
progeny are inconsistent, they are expressly overruled.
As we stated earlier, Hisquierdo only precludes Tier I benefits from being
considered as divisible marital property. Hisquierdo does not preclude the use of Tier I
benefits to pay alimony. See Kennedy v. Kennedy, 53 Ark.App. 22, 28, 918 S.W.2d 197, 201
(1996) ("Appellee argues that, if he is required to pay alimony beyond retirement age, he will
have to make those payments from his Tier I benefits, which are not divisible under federal
law. Appellee, however, has not cited any law that restricts him from paying alimony from
retirement benefits that he might receive."). Alimony is not divisible marital property. See
Banker, 196 W.Va. at 545, 474 S.E.2d at 475 ("''Alimony' has been defined by W.Va.
Code, 48-2-1(a) (1992), to mean 'the allowance which a person pays to or in behalf of the
support of his or her spouse ... after they are divorced.'"). Therefore, the plaintiff may seek
to have alimony continued once the defendant reaches age 65.
Lastly, the plaintiff contends that she is entitled to an offset from the marital
property to compensate her for not being awarded any of defendant's Tier I benefits. This
Court has never directly addressed the issue of offsetting Tier I benefits as a way of
furthering equitable distribution of marital property. However, this argument was addressed
and rejected in Hisquierdo. The Supreme Court held that "[an offsetting award ... would
upset the statutory balance and impair [the employee spouse's] economic security just as
surely as would a regular deduction from his benefit check." Hisquierdo, 439 U.S. at 588,
99 S. Ct. at 811, 59 L. Ed. 2d at 15. Other jurisdictions have applied Hisquierdo to preclude
offsetting Tier I benefits in a divorce action. See Tarbet v. Tarbet, 97 Ohio App.3rd 674, 647 N.E.2d 254 (1994); Belt v. Belt, 398 N.W.2d 737 (N.D. 1987); Larkin v. Larkin, 415 N.W.2d 924 (Minn.App. 1987); Padezanin v. Padezanin, 341 Pa.Super. 26, 491 A.2d 130 (1985);
Rommelfanger v. Rommelfanger, 114 Wis.2d 175, 337 N.W.2d 851 (1983); Kendall v.
Kendall, 106 Mich.App. 240, 307 N.W.2d 457 (1981); Larango v. Larango, 93 Wash. 2d 460, 610 P.2d 907 (1980); In re Marriage of Knudson, 186 Mont. 8, 606 P.2d 130 (1980).
Tier I benefits are akin to Social Security benefits. Congress, in 1983, refused to incorporate
Tier I benefits as property subject to distribution upon the granting of a divorce. Based upon
the Congress' clear intent, as well as Hisquierdo, we likewise decline to deem the same as
marital property subject to equitable distribution. In view of Hisquierdo, we hold that the
Railroad Retirement Act of 1974, 45 U.S.C. 231m specifically prohibits offsetting Tier I
benefits in a divorce proceeding. Therefore, the plaintiff may not offset an equal division of
marital assets to compensate her for not being awarded any portion of defendant's Tier I
benefits. However, consistent with the position we have taken herein, plaintiff is not
precluded from filing a petition for modification, once defendant begins to receive Tier I
benefits, to request alimony based upon the financial realities of the parties at that time.
Notwithstanding this fact, this Court cautions that all sources of income of the plaintiff and
the defendant must be considered when, or if, the family law master or circuit court is called
upon to rule upon any petition for modification.
D.
Restraining Order
Both parties alleged cruelty as grounds for divorce. As previously indicated
the divorce was granted on grounds of irreconcilable differences. The family law master
concluded from her observation of the parties that restraining orders would be appropriate
against both parties. The circuit court, in its final order held "[t]hat each of the parties shall
be restrained, enjoined and prohibited from in anyway or manner bothering, annoying or
molesting the other, or threatening so to do." The plaintiff argues that a restraining order
against her is not appropriate because the defendant did not present any evidence that she
abused him. The defendant contends that, absent the 1987 mutual confrontation, no evidence
was proffered to prove that he abused the plaintiff. No finding of abuse by either party was
made by the lower tribunals.(9)
We note that W.Va. Code 48-2-15(b)(9) (1996) provides, in relevant part,
that "[w]hen allegations of abuse have been proven, the court shall enjoin the offending
party[.]" This provision makes it mandatory that a restraining order be entered against a
spouse where it is shown by a preponderance of the evidence that such spouse abused the
other spouse. In the instant proceeding the lower courts made no finding of abuse by either
the plaintiff or the defendant. Therefore, based upon a plain reading of the statute, the circuit
court committed error in issuing restraining orders without a finding of abuse.(10)
E.
Credit Union Account
The circuit court awarded the defendant the balance of a credit union account.
Neither the recommended order of the family law master, nor the circuit court's final order
disclosed the value of this account. Further, the circuit court's order does not explain the
basis for awarding the account to defendant, other than as the recommendation of the family
law master. A review of the financial statements submitted by both parties does not disclose
the existence of a credit union account. Pursuant to Rule 11, of the Rules of Practice and
Procedure for Family Law, as well as West Virginia Code 48-2-33 (1993) a full and
complete disclosure of finances is required in all divorce actions. Thus, it is incumbent that
a clear, concise and complete financial record for both parties be required by the family law
master and lower court in order for this Court to establish meaningful review of the issues
presented.
In addressing the issue of the sufficiency of a final order in a divorce
proceeding, this Court stated in Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894,
904 (1996) that "[t]he order must be sufficient to indicate the factual and legal basis for the
family law master's ultimate conclusion so as to facilitate a meaningful review of the issues
presented. Where the lower tribunals fail to meet this standard--i.e. making only general,
conclusory or inexact findings--we must vacate the judgment and remand the case for further
findings and development." Moreover, we held in syllabus point 6 of Wood v. Wood (I), 184
W.Va. 744, 403 S.E.2d 761 (1991) that "'[an order directing a division of marital property
in any way other than equally must make specific reference to factors enumerated in Sec.
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)." We cannot
conduct a meaningful review of whether the credit union account was properly awarded to
the defendant. We would also note that, although the plaintiff assigned this issue as error,
the defendant did not address the matter in his brief. We therefore reverse and remand this
issue for proper findings.
F.
Attorney's Fees
The circuit court did not award attorney's fees in this case. We noted in syllabus point 12 of Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996) that "[p]ursuant to W.Va. Code 48-2-13(a)(6)(A), the court in a divorce proceeding may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court." In syllabus point 5 of Rogers v. Rogers we held:
In divorce actions, an award of attorney's fees rests
initially within the sound discretion of the family law master
and should not be disturbed on appeal absent an abuse of
discretion. In determining whether to award attorney's fees, the
family law master should consider a wide array of factors
including the party's ability to pay his or her own fee, the
beneficial results obtained by the attorney, the parties' respective
financial conditions, the effect of the attorney's fees on each
party's standard of living, the degree of fault of either party
making the divorce action necessary, and the reasonableness of
the attorney's fee request. Syl. pt. 4, Banker v. Banker, 196
W.Va. 535, 474 S.E.2d 465 (1996).
The plaintiff contends that she was inhibited from effectively prosecuting her
divorce, because she had to rely upon the free legal services of Appalachian Research and
Defense Fund (ARDF). Although plaintiff's legal services were provided at no cost to her,
she contends that she nevertheless should have been awarded attorney's fees. The defendant
counters by arguing that it is because plaintiff received free legal services that an award of
attorney's fees is inappropriate. The issue presented is whether attorney's fees may be
awarded in a divorce proceeding to a party who received free legal representation from a
nonprofit legal organization. The issue presented appears to be one of first impression to this
Court.
As an initial matter we note that, where statutes authorize recovery of
attorney's fees in general, courts have permitted the prevailing party who received legal aid
services or other pro bono legal representation to recover attorney's fees(11). Courts have
justified awarding attorney's fees in the pro bono context on the basis that "'an award of
attorney's fees to the organization providing free legal services indirectly serves the same
purpose as an award directly to a fee paying litigant' by encouraging the protection of the
indigent litigant's rights." Atamanuk, 82 Misc.2d at 1061, 368 N.Y.S.2d at 736. (Citation
omitted.) Additionally such an award does not represent a windfall to the prevailing litigant,
because "fees allowed are to reimburse and compensate for legal services rendered and will
not go to the litigants[.]" Miller, 426 F.2d at 539.
While there is judicial authority to support awarding attorney's fees, as a
general matter, to a litigant receiving legal aid services, there appears to be a dearth of such
authority on the specific issue of attorney's fees to a divorce litigant who received legal aid
services. At least one commentator supports such an award. See McLaughlin, The Recovery
of Attorney's Fees, at 778 ("As a practical matter, legal services attorneys will rarely be able
to recover counsel fees in matrimonial actions since both the husband and wife are usually
indigent. In a case where the husband is able to pay and a divorce ... is granted the wife,
attorney's fees should be recovered.").
In turning to the case sub judice we note that ARDF filed the divorce complaint
in this matter, as counsel for the plaintiff, and has prosecuted this appeal on behalf of the
plaintiff. While the plaintiff contends that she could not effectively prosecute this divorce
because of her reliance on the free services of ARDF, we disagree. The record in this case
delineates effective representation by ARDF below and in this appeal.
The award of attorney's fees in divorce proceedings is authorized by W.Va.
Code 48-2-13(a)(6)(A) (1993).(12) See Syl. Pt. 14, Bettinger v. Bettinger, 183 W.Va. 528,
396 S.E.2d 709 (1990) ("The purpose of W.Va. Code, 48-2-13(a)[(6)(A)] (19[93]), is to
enable a spouse who does not have financial resources to obtain reimbursement for costs and
attorney's fees during the course of the litigation."). In our review of this statute we have not
discerned an intent, express or implied, by the legislature that attorney's fees are not to be
awarded to a party receiving free legal services. All "that is required is the existence of a
relationship of attorney and client[.]" Miller, 426 F.2d at 538. No authority has been brought
to this Court's attention that would deny attorney's fees in a divorce proceeding on the basis
of free legal representation. We hold, therefore, that attorney's fees in a divorce proceeding
may be awarded to a party who received free legal aid services or pro bono legal
representation; however, such an award is to compensate and reimburse for legal services
rendered and shall not be paid to the litigant.
In the instant proceeding, the record does not disclose to this Court the basis for the denial of attorney's fees to the plaintiff. We are not certain if the free representation by ARDF formed the basis of the court's decision. It was incumbent upon the recommended order of the family law master and the final order of the circuit court to set out their findings on the issue of plaintiff's request for attorney's fees. This Court pointed out in Donna Kaye M. v. Justin Elliot M., 197 W.Va. 264, ___, 475 S.E.2d 356, 360 (1996), that "[t]he ability to conduct appellate review ... is dependent upon the quality of the record presented by the parties." Appellate review on the matter of attorney's fees to plaintiff has been effectively precluded because of the insufficiency of the orders by the lower tribunals on this issue.(13) We therefore reverse and remand this issue for proper findings.
III.
CONCLUSION
Based upon the foregoing the final order of the circuit court is affirmed in part,
reversed in part and remanded for a determination consistent with this opinion.
Affirmed in part, reversed
in part, and remanded.
1. W.Va. Code 48-2-16(b) provides in relevant part:
(b) ... The court shall consider the following factors in determining the amount of alimony ... if any, to be ordered...:
(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 marital property to be made under the terms of a separation agreement or by the court under the provisions of section thirty-two of this article, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive alimony, child support or separate maintenance;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) The likelihood that the party seeking alimony, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;
(9) The anticipated expense of obtaining the education and training described in subdivision (8) above;
(10) The costs of educating minor children;
(11) The costs of providing health care for each of the parties and their minor children;
(12) The tax consequences to each party;
(13) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;
(14) The financial need of each party;
(15) The legal obligations of each party to support himself or herself and to support any other person; and
(16) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of alimony, child support or separate maintenance.
2. The marital debt which Defendant was ordered to pay included the following debts: Master Charge $1,600; Discover $1,100; Visa $400; car note $10,000.
3. The plaintiff's brief recites a considerable number of our cases where we found the amount of alimony was insufficient. All of the cases cited by the plaintiff are factually distinguishable from the instant proceeding.
4. We note that defendant's brief states that since the date of entry of the circuit court's order, the plaintiff is employed and is earning $1,500 per month. The plaintiff's reply brief did not refute her employment status. This Court will not consider evidence which was not in the record before the circuit court. See O'Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420 (1991) (this Court may only consider matters appearing in the trial record). However, consistent with Hinerman v. Hinerman, 194 W.Va. 256, 261, 460 S.E.2d 71, 76 (W.Va. 1995), since the issue of alimony must be reconsidered by the circuit court, the statement of this court that plaintiff is earning $1,500 per month should be developed and considered below.
5. 45 U.S.C. 231a(a)(1) sets out the various circumstances that would allow a railroad employee to become eligible to receive Tier I benefits.
6. 45 U.S.C. 231b(a)(1) provides as follows:
(1) The annuity of an individual under section 23a(a)(1) of this title shall be in an amount equal to the amount (before any reduction on account of age and before any deductions on account of work) of the old-age insurance benefit or disability insurance benefit to which such individual would have been entitled under the Social Security Act if all of his or her service as an employee after December 31, 1936, had been included in the term "employment" as defined in the Act.
7. 45 U.S.C. 231a(b) sets out the various circumstances that would allow a railroad employee to become eligible to receive Tier II benefits.
8. 45 U.S.C. 231b(e) provides as follows:
"The supplemental annuity of an individual under section 231a(b) of this itle shall be $23 plus an additional amount of $4 for each year of service that the individual has in excess of 25 years, but in no case shall the supplemental annuity exceed $43."
9. The record indicates that a temporary restraining order was in place against both parties during the pending litigation.
10. We hasten to point out that circuit courts have inherent general equity powers to issue restraining orders upon a proper evidentiary showing. Our ruling today does not erode from those powers. In the case sub judice we were called upon only to address issuance of a restraining order under W.Va. Code 48-2-15(b)(9). We reserve for another day the matter of issuance of a restraining order in a divorce proceeding, under the general equity powers of a court, when there has been no proof of statutory abuse, but the conduct of the parties during the proceedings indicate a need for a restraining order.
11. See e.g., Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985); Cornella v. Schweiker, 728 F.2d 978 (8th Cir. 1984); Perez v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978); Miller v. Amusement Enterprises, 426 F.2d 534 (5th Cir. 1970); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Alexander S. v. Boyd, 929 F. Supp. 925 (D.C.S.C. 1995); Darmetko v. Boston Housing Authority, 378 Mass. 758, 393 N.E.2d 395 (1979); Gregory v. Sauser, 574 P.2d 445 (Alaska 1978); Winters v. Security Pac. Nat'l Bank, 49 Cal. App. 3d 510, 122 Cal. Rptr. 619 (1975); Atamanuk v. Kwok Yuin Wong, 82 Misc.2d 1059, 368 N.Y.S.2d 733 (1975). See also Gerald T. McLaughlin, The Recovery of Attorney's Fees: A Method of Financing Legal Services, 40 Fordham L. Rev. 761 (1972); Note, Awards of Attorney's Fees to Legal Aid Offices, 87 Harv. L. Rev. 411 (1973).
12. W.Va. Code 48-2-13(a)(6)(A) provides:
(6)(A) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court. The question of whether or not a party is entitled to temporary alimony is not decisive of that party's right to a reasonable allowance of attorney's fees and court costs. An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal be taken or an intention to appeal be stated, the court may further order either party to pay attorney fees and costs on appeal.
13. The plaintiff's other assignments of error are without merit.
Nissan Maxima
The plaintiff argues that the circuit court erred in awarding the defendant a
1990 Nissan Maxima and giving her a 1988 Pontiac Sunbird. The record indicates the
Nissan had an appraised value of $12,000, and the Pontiac had a value of $3,500. The
Pontiac was paid off, but a debt of $10,000 still existed on the Nissan. The net effect of
this situation appears to be that the plaintiff received $1,500 more than the defendant.
Division Of Goods And Furnishings
The brief of the plaintiff contends that after the division of the household goods and furnishings, "she is left without necessary furnishings to even make a meal." The record indicates that the circuit court divided all
cookware. Our review of the circuit court's order does not disclose any inequitable
treatment in the division of household goods and furnishings.
Awarding Defendant Marital Home
The circuit court's order indicates that the marital home was awarded to the defendant. The defendant was ordered to pay the plaintiff one half the appraised value of the home. The home was appraised at $68,000. The defendant therefore was ordered to pay the plaintiff $34,000. The plaintiff argues that the circuit court should have awarded the marital home to her. That is, the plaintiff contends that she should have the home and that she should not be required to compensate the defendant as the defendant was ordered to compensate her. The plaintiff offers no justification for her position. The record in this case indicates that the home originally belonged to the defendant's parents, and that upon their deaths he acquired the home by will. It is also indicated in the record that the defendant lived in the home as a youth. The defendant contends that it was because of his family ties to the home that the family law master recommended he keep the residence, but pay to plaintiff one half its value. We find no basis to disturb the circuit court's ruling on this issue.
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