Patricia Keller, Esq.
David J. Lockwood, Esq.
Hussell & Keller, L.C. Huntington, West Virginia
Huntington, West Virginia Attorney for Appellee
Attorney for Appellant
JUDGE FRED RISOVICH, II, sitting by temporary assignment, delivered the Opinion of the Court.
JUSTICES MCGRAW and MAYNARD dissent, in part, and concur, in part
JUSTICE SCOTT did not participate in the decision of 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. This Court reviews the circuit court's final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo. Syl. Pt. 4,
Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
3. When the child support obligor provides a home for the benefit of the
child and the child support obligee incident to child support, the rental value of the home
should be factored into the child support formula, as found in West Virginia Code § 48A-1B-
6 (1999), as in kind payments to be included in the child support obligee's gross income
pursuant to West Virginia Code § 48A-1A-19(b)(4) (1999).
This is an appeal by Deborah Hicks (hereinafter Ms. Hicks or Appellant),
from a final order of the Circuit Court of Wayne County affirming the Family Law Master's
recommended order. Appellant filed a petition with the Family Law Master seeking to
modify the final divorce order to receive additional child support from Kenneth Hicks
(hereinafter Mr. Hicks or Appellee), her former husband. The parties differed regarding
how the child support formula should be adjusted to take into consideration that Appellee
is providing a home for the use of Appellant and her son. The Family Law Master
recommended that the amount of $600.00See footnote 1
be deducted from the final child support
obligation as a straight deduction. Upon a timely filing of petition for review, the circuit
court affirmed the recommended decision of the Family Law Master.
Appellant contends that the Family Law Master erred in deducting, dollar for
dollar, the rental value of the home from the total child support obligation rather than include
the rental value of the home as an adjustment to be factored into the child support calculation
as either in kind income to Appellant or as an extraordinary expense on line 5-c of the child
support worksheet. Appellant also contends that the Family Law Master erred in refusing
to consider Appellee's new spouse's income in the child support obligation. We agree with
Appellant's contention that the Family Law Master should have included the rental value of
the home as in kind income to Appellant and, accordingly, we reverse that part of the circuit
court's final order. However, we find that the Family Law Master and circuit court
committed no reversible error by not including the second wife's income in the calculation
of child support.
In October 1996, Appellant filed a petition for modification of child support.
Appellant alleged that there had been a material change in circumstances in that Appellee
now had much greater income, that it would be in the best interests of the child to increase
the child support and that the child support formula would now indicate an amount in excess
of fifteen percent.See footnote 2
The parties first entered into an agreed temporary order which continued
the matter until income information and tax returns could be exchanged. The order
temporarily increased child support to $700.00 per month. The parties were able to stipulate
to their income and exchange other financial information.See footnote 3
The parties were not able to agree how the fair rental value of the marital home should be deducted from the child support obligation. The fair rental value of the home is stipulated at $600.00 per month. In a hearing before the Family Law Master, Appellant asserted that the fair rental value of the home should be deducted as an extraordinary adjustment on line 5-c of the child support worksheet. If the rental value would have been deducted as an extraordinary adjustment, the obligation would have been $1199.94 per month. Appellee asserted that the rental value of the home should be deducted from the total child support obligation, which was, in fact, what the Family Law Master did, and Appellant was awarded $704.85 per month in child support.
In addition to arguing that the Family Law Master and circuit court inappropriately calculated the child support obligation, Appellant also contends that some of Appellee's spouse's income should be considered in calculating child support. Tonya Hicks is Appellee's current wife. Tonya has been employed by Kenneth P. Hicks, L.C., since August 1990. Appellee is the sole stockholder in this legal corporation. At the time Appellant filed her petition for modification, Tonya received a $13,208.45 raise in income, while Appellee's income only increased $817.37. Appellant argues that Appellee funneled income to his new wife in order to lower his support obligation. The Family Law Master found that the disproportionate raise in income was suspicious, but declined to consider the issue. The Family Law Master filed her recommended order on June 9, 1998, and both parties filed petitions for review of that order with the circuit court. On August 24, 1998, the circuit court entered an order affirming the Family Law Master's recommended order. It is from this order that Appellant appeals.
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.
This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo. Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
Chapter 48A of the West Virginia Code provides for the enforcement of family
obligations. West Virginia Code §§ 48A-1A-1 to -32 (1999) define the terms used by the
West Virginia Legislature for the enforcement of these obligations. West Virginia Code §§
48A-1B-1 to -17 (1999) provide the guidelines for awarding child support. Child support
determinations have been reduced to a math calculation.See footnote 7
Guidelines for child support award
amounts ensure greater uniformity for calculating child support and increase predictability
for parents, children and other persons who are directly affected by child support orders.
West Virginia Code § 48A-1B-6See footnote 8
sets forth the procedure for computing child
support in sole custody cases. The statute also provides the worksheet to be followed in
calculating child support. See W.Va. Code § 48A-1B-6(c). The worksheet determines the
total child support obligation by combining the basic obligation with certain adjustments.
Adjustments are allowable expenses or credits pertaining to the child for who the formula
is being calculated. West Virginia Code § 48A-1B-6(a) and (b) specifically provide:
(a) For sole custody cases, the total child support obligation consists of the basis child support obligation plus the child's share of any unreimbursed health care expenses, work- related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court.
(b) In a sole custody case, the total basic child support obligation is divided between the parents in proportion to their income. From this amount is subtracted the obligor's direct expenditures of any items which were added to the basis child support obligation to arrive at the total child support obligation.
West Virginia Code § 48A-1A-19(b)(4) (1998), the statute in effect at the time
the Family Law Master and circuit court entered their respective orders,See footnote 9
income for the purposes of enforcing family obligations and calculating child support as
[e]xpense reimbursements or in kind payments such as business expense accounts, business
credit accounts and tangible property such as automobiles and meals, to the extent that they
provide the parent with property or services he or she would otherwise have to provide. Id.
The definition of gross income clearly includes in kind payments to the extent
that they provide a parent with property he or she would otherwise have to provide for
himself or herself. Had the home not been provided by Appellee for the use and benefit of
the child, Appellant would have had to provide a home for herself and the child, thereby
paying either rent or mortgage. By not having to pay rent or a mortgage, Appellant clearly
receives an in kind monthly payment of $600.00, the rental value of the home.
Although this issue has not been specifically addressed by this Court, a similar
situation has been litigated in Florida. In Thomas v. Thomas, 712 So.2d 822 (Fla. Dist. Ct.
App. 1998), the District Court of Appeal of Florida, Second Circuit, found that when the
child support obligee has the exclusive right to occupy the home to the exclusion of the child
support obligor who could not claim rent, the value of the right to occupy the home should
have been factored into the calculation of the obligor's child support. Id. at 823. The
Florida court specifically found that for the purposes of calculating child support, a party's
gross income includes 'in kind payments to the extent that they reduce living expenses' . .
. [and that] [t]hese include housing or housing expenses. Id. at 823-24, citing Fla. Stat. Ann.
§ 61.30(2)(a)13. (West 1997).
Clearly, the most appropriate procedure for factoring in the rental value of the
home is to include the $600.00 in Appellant's gross monthly income. Accordingly, we hold
that when the child support obligor provides a home for the benefit of the child and the child
support obligee incident to child support, the rental value of the home should be factored into
the child support formula, as found in West Virginia Code § 48A-1B-6 (1999), as in kind
payments to be included in the child support obligee's gross income pursuant to West
Virginia Code § 48A-1A-19(b)(4) (1999). The circuit court erroneously affirmed the Family
Law Master's recommended decision with respect to the consideration of the rental value of
In contrast, Appellee asserts that the increase in salary to Tonya was the result of increased job duties. Shortly before the increase, Appellee had lost two very productive employees and as a result of this loss, Tonya was forced to take on additional duties, over and above her job as office manager. Additionally, Appellee asserts that his duties were not so drastically changed as to require a substantial salary increase. The Family Law Master noted that such an increase in salary seemed suspicious, but declined to consider the issue.
The circuit court found in its final order that [t]he present state of the law does not permit
the Court to consider the spouse's income in calculation of the obligor's income for child
support computation. Therefore, it is not a misapplication of the law, nor is it an abuse of
discretion to disregard Tonya's income in computing child support.
Appellant relies on law from several jurisdictions, but primarily on the case of
Evjen v. Evjen, 492 N.W.2d 361 (Wis. App. 1992) in support of her argument. In Evjen, the
Court of Appeals of Wisconsin held that the portion of the wages paid to a father's current
spouse by his closely held corporation was part of his gross monthly income for purposes of
calculating child support. In Evjen, the court found no credible or reasonable inference that
supported the need of the father's closely held corporation to hire the new spouse at an
annual salary of $11,350.00 to perform tasks that previously had the cost the corporation
about $2500.00 annually. Id. at 363-364. The Evjen court specifically found that a family
court is authorized to pierce the corporate shield if it is convinced that obligor's intent is to
avoid financial obligations arising from the dissolution of the marriage relationship. Id. at
364.See footnote 10
However, West Virginia Code § 48A-1A-19(d)(1) (1999) specifically states
that gross income does not include [i]ncome received by other household members such
as a new spouse. The limited record before us does not support a change in our law as
suggested by Appellant. Accordingly, the circuit court did not abuse its discretion in
affirming the Family Law Master's refusal to consider the income of Appellee's new spouse
in the child support calculation.