Petruska v. Petruska
Annotate this Case
September 1996 Term
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No. 22981
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SCOTT E. PETRUSKA,
Plaintiff Below, Appellee
v.
BRIGITTE I. PETRUSKA,
Defendant Below, Appellant
________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 92-C-1389
AFFIRMED, IN PART, REVERSED, IN PART
AND REMANDED
________________________________________________________________
Submitted: September 24, 1996
Filed: November 15, 1996
R. Joseph Zak, Esq. Frances W. McCoy, Esq.
Zak & Associates Lewis, Friedberg, Glass, Casey & Rollins
Charleston, West Virginia Charleston, West Virginia
Attorney for the Appellant Attorney for the Appellee
JUDGE RECHT sitting by temporary assignment delivered the Opinion of the Court.
CHIEF JUSTICE McHUGH reserves the right to file a dissenting opinion.
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."
Syllabus Point 1, Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995).
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).
Per Curiam:See footnote 1
In this divorce proceeding, Brigitte I. Petruska appeals that portion of a final
order of the Circuit Court of Kanawha County, which denied her permanent alimony and
refused to require Scott E. Petruska, her former husband, to pay for the extraordinary
expenses associated with the sporting activities of the parties' child. On appeal, Ms.
Petruska argues that the circuit court erred: first, in granting her retroactive rehabilitative
alimony rather than permanent alimony, and second, in failing to increase the child support
award to pay for their child's extraordinary expenses. In cross-assignments of error, Mr.
Petruska argues that his support obligations should have been credited with overpayments,
and that his support for the child's residence should be factored into the child support
calculations. After reviewing the record, we find no merit in Mr. Petruska's cross-
assignments of error, and except for the duration of the rehabilitative alimony award, we
find that the circuit court did not abuse its discretion in either the award of rehabilitative
alimony or child support, and therefore, we affirm, in part, and reverse, in part, the circuit
court's decision and remand with directions to enter an order extending the rehabilitative
alimony award until the end of the dependency of the parties' child.
I.
FACTS AND BACKGROUND
After almost eleven years of marriage, Mr. Petruska filed for a divorce on April
2, 1992, on the grounds of irreconcilable differences. The parties have a daughter who was
born on July 23, 1982. Although Ms. Petruska has been primarily a homemaker during most
of the marriage, before a 1983 move of the family to Singapore to advance Mr. Petruska's
career, she had been employed as an international banking account translator. After moving
to Pinch, West Virginia with her daughter in January 1990, Ms. Petruska operated her own
business for about two years; however, the business closed in 1992, about a year after the
parties separated in February 1991.
Mr. Petruska's employment required him to move to Singapore in 1983 and to
Tokyo in 1988. Finally, he returned to New York City in September 1990. Mr. Petruska's
salary while working overseas was substantial; however, with his return to the United States,
his income dropped. In 1990 he earned $275,096; in 1991 he earned $219,132; in 1992 he
earned $167,224.11; and, in 1993 he earned $142,000.
The move of Ms. Petruska and their daughter to West Virginia in 1990 was a
mutual decision of the parties. The parties' daughter has been involved in competitive
swimming since she was four years old and receives professional coaching through the
University of Charleston. The expenses related to the daughter's swimming exceed $850 per
month. Because of the swimming practices and competitive meets, the daughter has a hectic
schedule requiring a substantial commitment of time from Mrs. Petruska.
On appeal, Ms. Petruska maintains that the circuit court erred in failing to
award her permanent alimony. Ms. Petruska, who was born and educated in Germany, is
now 42 years old and except for operating her own business, has been out of the job market
since 1983. Ms. Petruska maintains that her business closed because it was not successful.
An expert for Mr. Petruska, who did not interview Ms. Petruska, thought she could be
employed in the banking industry in the mid-America states. Ms. Petruska's expert thought
she could be re-employed here in Charleston with an annual salary of about $16,000 per
year. The circuit court adopted the family law master's finding that Ms. Petruska had
refused to re-enter the work force. In her brief, Ms. Petruska argues she is employed as a
homemaker and spends her time meeting the needs of their daughter. Ms. Petruska maintains
that she should receive either permanent alimony or at least rehabilitative alimony during the
dependency of their daughter.
Mr. Petruska maintains that Ms. Petruska, as a highly qualified individual with
substantial experience in international banking, has excellent marketable skills which should
assist her to re-enter the labor force. Mr. Petruska also notes that because his income has
declined, he is no longer able to support the same style of life the parties enjoyed when he
was employed overseas.
Ms. Petruska argues that the circuit court erred in failing to award an additional
$850 per month in child support for the daughter's practice and competitive swimming
meets. There is no dispute that the amount of child support based on the earnings of the
parties was properly calculated, and Mr. Petruska is required to pay $950 per month. Ms. Petruska maintains that Mr. Petruska should be required to continue to support their
daughter's swimming activities because such support would continue the same standard of
living as they would have enjoyed if the family unit remained intact. Mr. Petruska argues
his financial ability to support such activities has changed and that the swimming activities
at the present level are not essential.
Mr. Petruska, in his cross-assignments of error, wants credit for what he labels
as overpayments in support and alimony and seeks relief for the missed investment
opportunities related to the house where his daughter lives with her mother.
The family law master recommended that Ms. Petruska be awarded
rehabilitative alimony for a period of 48 months retroactive to August 1992. Beginning
January 1, 1994 and ending July 1, 1996, the amount of rehabilitative alimony was to be
$20,000 per year. The family law master found that Ms. Petruska's living expenses were
$1,700 per month and that she was employable at a minimum of $16,000 per year. The
family law master found that she has "sufficient time to re-enter the work force and earn the
level of income she requires, but that Defendant's demonstrated refusal to so do should not
be ignored by the Court as Plaintiff has paid $3,000 in spousal support per month for 17
months."
The family law master noted that Mr. Petruska had supported his daughter's
swimming activities and the expenses until the filing of the divorce. The family law master
said that the child "is well adjusted, bright, and A student in school and has an exceptional swimming talent." However, although the family law master recommended child support
based on the income of the parties, no additional support for swimming was recommended.
Both parties filed exceptions to the recommended decision. The circuit court
adopted the family law master's recommendations concerning alimony and child support.See footnote 2
The circuit court also provided that Ms. Petruska's alimony be reduced to $1,000 per month
"until [Mr. Petruska] is re-employed," which occurred on November 1, 1994, about ten
weeks after the temporary reduction in spousal support was ordered; but this minor addition
did not substantially change the alimony provision.
Ms. Petruska appealed asserting: first, that the circuit court erred in failing to
award "permanent alimony, or at the very least rehabilitative alimony during the infancy of
the child;" and second, that the circuit court erred in failing to award an addition $850 per
month in child support for the daughter's swimming expenses.
II.
DISCUSSION
A. Standard of Review
Because the circuit court adopted the recommendations of the family law
master on the issue of alimony and child support, we apply the standard of review expressed
in Syl. pt. 1 of Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995), which states:
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.
In accord Syl. pt. 1, State Dept. of Health and Human Resources, Child Advocate Office on
Behalf of Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 466 S.E.2d 827 (1995);
Carter v. Carter, 196 W. Va. 239, ___, 470 S.E.2d 193, 198 (1996). We review the
questions of alimony and child support in excess of the recommended guidelines under an
abuse of discretion standard. In the Syllabus of Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977), we held:
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 Banker v. Banker, ___ W. Va. ___, ___, 474 S.E.2d 465, 478 (1996); Carter v. Carter,
196 W. Va. at ___ , 470 S.E.2d at 198; Syl. pt. 2, Wood v. Wood, 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 v. Banker, we gave the following explanation of the three principal
ways through 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 v. Banker, ___ W. Va. at ___, 474 S.E.2d at 478.
Mindful of this standard of review, we address the issues appealed considering,
first, the question of alimony, and second, the question of extraordinary support for the
daughter's sporting activities.
B. Alimony
W. Va. Code 48-2-16(b) (1984) lists sixteen (16) factors that should be
considered "in determining the amount of alimony." The final factor allows the
consideration of any additional factors needed for a "fair and equitable grant of alimony."See footnote 3 In the case sub judice, the circuit court adopted the family law master's
recommendation of rehabilitative alimony for a 48-month period retroactive to August 1992.
Beginning January 1, 1994 until July 1, 1996, the alimony was to be $20,000 per year.
According to the order, the amount of alimony was based on Ms. Petruska's monthly living expenses of $1,700 and her ability to be employed at $16,000 per year. The 48 months was
considered a reasonable time for re-entry into the labor force "but that Defendant's
demonstrated refusal to so do should not be ignored by the Court as Plaintiff has paid
$3,000.00 in spousal support per month until July, 1994."
Molnar v. Molnar, 173 W. Va. 200, 204, 314 S.E.2d 73, 77 (1984 ) lists "six
criteria relating to the setting of alimony . . .: (1) the financial resources of the parties, (2)
the time necessary for the dependent spouse to acquire job skills, (3) the parties' accustomed
standard of living, (4) the duration of the marriage, (5) the age and health of the dependent
spouse, and (6) the needs of the supporting spouse."
In reviewing the record, we note that rehabilitative alimony is appropriate in
this case because of Ms. Petruska's age, training and work experience. Syllabus point 3 of
Molnar v. Molnar states:
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.
We also note that the financial resources of the parties have changed thereby requiring a
change in the accustomed standard of living. However, the parties have a child who has had
the benefit of an at-home mother, whose career was sidetracked for the benefit of her family and her spouse's career. Her attempt to re-enter the labor force by starting her own business
was not successful. The recommended alimony appears to punish a non-working spouse
who desires to continue a role that the parties had agreed to during the marriage. The
disparity of the parties' earning potential will continue for at least as long as the mother gives
her primary emphasis to the care of the parties' child. Because the family law master's
recommended decision committed a clear error in judgment in failing to consider the
disparity of income and the role of custodian of a minor child, we find an abuse of discretion
in terminating the rehabilitative alimony during the dependency of the child.See footnote 4
However, given the disparity of income and the pre-separation economic and
social decisions of the parties, we find that the circuit court did not abuse its discretion in
refusing to credit Mr. Petruska for temporary payments which exceeded the amounts of the
final required payments. This credit/debit analysis reflects Mr. Petruska's banking
background; however, the bottom line in family law should not be strictly based on the flow
of money. The record indicates no abuse of discretion based on the evidence when the
temporary support was ordered. Given the parties' respective economic positions, requiring
repayment would be unjust to the dependent child and her mother. We, therefore, find no merit in Mr. Petruska' cross-assignments of error seeking credit for temporary support
payments.
. C. Extraordinary Child Support
Ms. Petruska also maintains that the circuit court erred in failing to require Mr.
Petruska to pay an additional $850 per month in child support in order for their daughter to
continue with her avid interest in swimming.See footnote 5 We begin by noting that Mr. Petruska, under
the child support guidelines that were used below to determine the amount of child support,
is required to pay $950 per month. Ms. Petruska argues that the child's activities should not
be curtailed because of the divorce. Mr. Petruska argues that the child's swimming does not
have a great potential for a college scholarship; and that because he no longer is earning the
overseas salary, he can no longer afford the extraordinary swim expenses.
In Bettinger v. Bettinger, 183 W. Va. 528, 540, 396 S.E.2d 709, 720 (1990)
we explained that the child support guidelines include a "SOLA" or "standard of living
adjustment," which is a based on defined percentages for the number of children. In this
case, the basic child support was $180 and SOLA was calculated to be $874.20. After
including Ms. Petruska' imputed income, the child support guidelines indicated that Mr. Petruska should pay $950 per month in child support. We noted in Syl. pt. 12 of Bettinger
v. Bettinger, that some limited discretion exists to abandon the guidelines:
A decision not to follow the SOLA percentages must be
undertaken in light of the legislative preference in W.Va. Code,
48A-2-8(b) (1989), that child support should be keyed to "the
level of living such children would enjoy if they were living in
a household with both parents present." If the family law
master or circuit court determines that SOLA percentages under
6 W.Va. C.S.R. § 78-16-2.7.2 should not be used, an
explanation must be given.
W. Va. Code 48A-1B-14 (1996) recognizes that the child support may be
disregarded in appropriate circumstances by providing:
(a) If the court or master finds that the guidelines are
inappropriate in a specific case, the court or master may either
disregard the guidelines or adjust the guidelines-based award to
accommodate the needs of the child or children or the
circumstances of the parent or parents. In either case, the reason
for the deviation and the amount of the calculated guidelines
award must be stated on the record (preferably in writing on the
worksheet or in the order). Such findings clarify the basis of the
order if appealed or modified in the future.
(b) These guidelines do not take into account the economic
impact of the following factors and can be possible reasons for
deviation:
(1) Special needs of the child or support obligor;
(2) Educational expenses for the child or the parent (i.e. those
incurred for private, parochial, or trade schools, other secondary
schools, or post-secondary education where there is tuition or
costs beyond state and local tax contributions);
(3) Families with more than six children;
(4) Long distance visitation costs; or
(5) The child resides with third party.
In this case, the circuit court followed the child support guidelines including
the SOLA percentage. Given that Mr. Petruska no longer enjoys his overseas salary, even if the child was living in a household with both parents present, it appears unlikely that $850
per month would be spent on swimming activities. We note that none of the circumstances
outlined in W. Va. Code 48A-1B-14(b)(1996) is argued as a reason for deviation. Although
long distance visitation will require expenditures, these expenses are primarily born by the
father who has not asked for a reduction in child support. Given the evidence presented, we
find no abuse of discretion in the circuit court's refusal to require Mr. Petruska to pay an
additional $850 per month for sporting activities, and therefore, we find no merit in Ms.
Petruska's second assignment of error.
For the above stated reasons, the decision of the Circuit Court of Kanawha
County is affirmed, in part, reversed, in part, and remanded with directions to enter an order
extending the rehabilitative alimony award until the end of the dependency of the parties'
child.
Affirmed, in part, reversed,
in part, and remanded.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme
Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor
of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same
date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge
Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals
commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
In her petition and brief, Ms. Petruska raised an assignment of error concerning the
award of attorney's fees. However, in her reply brief, Ms. Petruska conceded that no final
order had been entered concerning attorney's fees. By order entered on November 3, 1994,
the circuit court bifurcated and remanded the attorney's fees issue to the family law master
for further hearing and the taking of evidence. Because the issue of attorney's fees is not
properly before this Court, we decline to comment on that issue. Footnote: 3
W. Va. Code 48-2-16(b) (1984) lists the following factors for consideration in
determining the amount of maintenance/alimony:
(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 [§ 48-2-23] 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.
Footnote: 4
The record in this case does not demonstrate that maintenance/alimony will be
required once Ms. Petruska is able to work in a position for which she is qualified, rather
than a low level entry position. If an award of permanent alimony becomes appropriate, the
matter can be considered by the circuit court under our recent holding in Banker v. Banker,
___ W. Va. ___, 474 S.E.2d at 473-78.Footnote: 5
In a cross-assignment of error, Mr. Petruska seeks "credit for the freezing of his
interest in the house until his daughter is grown." First we note that W. Va. Code 48-2-
15(b)(5) (1996) allows the circuit court to require the continued use of the marital home
"when such use and occupancy is reasonably necessary to accommodate the rearing of minor
children of the parties." We find no merit in this argument because if credit were given, it
would be off set by credit for the other spouse's interest in the house, which also remains
frozen.
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