JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
concept of 'rehabilitative [spousal support]' generally connotes an attempt
to encourage a dependent spouse to become self-supporting by providing [spousal
support] 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).
Cassandra L. Campbell (hereinafter
referred to as Ms. Campbell), appellant/petitioner below, appeals
an order of the Circuit Court of Mineral County. The circuit court denied her
petition for appeal of a divorce decree issued by the Family Court of Mineral
County. Here, Ms. Campbell challenges the amount and duration of rehabilitative
spousal support that she was awarded under the divorce decree. After a review
of the briefs
and record on appeal, we affirm the Circuit Court of Mineral County.
In June 2002, Ms. Campbell
filed for a divorce on the grounds of irreconcilable differences. During the
divorce proceedings it was determined that Ms. Campbell had a gross monthly income of $1,475.00. Mr. Smith had a gross monthly income of
$4,320.00. Ms. Campbell requested spousal support. Accordingly, she presented
evidence that she was going to further her education by obtaining a bachelor's
degree and master's degree. There was evidence that Ms. Campbell would incur
costs of $14,170.00 to complete her education, and an additional $19,266.00
for education related expenses. It was also determined that it would take Ms.
Campbell eleven years to complete her education.
In granting a divorce to
the parties, the family court judge found that Ms. Campbell was entitled to
rehabilitative spousal support. Ms. Campbell was awarded $632.00 per month
for five years as rehabilitative spousal support. Further, custody of the two
minor children was awarded to Ms. Campbell. Mr. Smith was ordered to pay a
total of $790.00 per month for child support. However, the parties have acknowledged
that subsequent to the issuance of the divorce decree custody of the children
was transferred to Mr. Smith. Thus, he was no longer obligated to pay child
support to Ms. Campbell. (See
Ms. Campbell filed a petition for appeal with the circuit court on the issue of spousal support. Ms. Campbell argued that the amount and duration of spousal support were insufficient. The circuit court denied the petition for appeal and affirmed the family court's resolution of those issues. From this ruling, Ms. Campbell now appeals.
Syl. pt. 2, Lucas v. Lucas, 215 W. Va. 1, 592 S.E.2d 646 (2003).
Further, in the single
syllabus of Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977),
this Court held that [q]uestions relating to [spousal support] . . .
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. Based upon this standard of review, we address the merits
of Ms. Campbell's appeal.
This Court has held that [a]bsent a finding of a statutory bar to [spousal support] or a finding of substantial fault or misconduct on the part of the spouse seeking [spousal support], the determination of awarding [spousal support] is to be based on 'the financial position of the parties.' Banker v. Banker, 196 W. Va. 535, 541, 474 S.E.2d 465, 471 (1996) (quoting Hickman v. Earnest, 191 W. Va. 725, 726, 448 S.E.2d 156, 157 (1994)). Under W. Va. Code § 48-6-301(b) (2001) (Repl. Vol. 2001), (See footnote 4) there are 20 items that must be considered in determining the amount of spousal support to be awarded. (See footnote 5) The family court's order indicates that it considered the factors listed under the statute.
This Court has previously noted that spousal support may not be awarded solely for the purpose of equalizing the income between spouses. Pelliccioni v. Pelliccioni, 214 W. Va. 28, 34, 585 S.E.2d 28, 34 (2003) (per curiam) (quoting Stone v. Stone, 200 W. Va. 15, 19, 488 S.E.2d 15, 19 (1997) (per curiam)). Although the evidence presented indicates that some disparity of income exists between the parties, this disparity is not so great as to warrant disturbing the family court's decision on the amount of spousal support. Our ruling on this issue is heavily impacted by the fact that the two children have been placed in the custody of Mr. Smith. Therefore, Mr. Smith's net income also includes the child support payments that were initially provided to Ms. Campbell. (See footnote 6)
An important factor concerning
rehabilitative spousal support, is that such an award should be for a limited
time. See Gooch v. Gooch, 212 W. Va. 869, 575 S.E.2d 628 (2002)
(allowing spousal support for five years); Sanney v. Sanney, 204 W. Va.
S.E.2d 865 (1998) (allowing spousal support for two years); Botkin v. White,
202 W. Va. 184, 503 S.E.2d 273 (1998) (allowing spousal support for twelve
months); Stone v. Stone,
200 W. Va. 15, 488 S.E.2d 15 (1997) (allowing spousal support for four years); Bosworth
v. Bosworth, 199 W. Va. 278, 483 S.E.2d 861 (1997) (allowing spousal
support for twelve months). We have held that [t]he concept of 'rehabilitative
[spousal support]' generally connotes an attempt to encourage a dependent spouse
to become self-supporting by providing [spousal support] for a limited period
of time during which gainful employment can be
obtained. Syl. pt. 1, Molnar v. Molnar, 173 W. Va. 200, 314
S.E.2d 73 (1984). See also W. Va. Code § 48-8-105(a)
(2001) (Supp. 2004) (The court may award rehabilitative spousal support
for a limited period of time[.]).
The prior decisions of this
Court clearly show that, as a general matter, rehabilitative spousal support
should initially be limited in duration. In the present case, we have found
no compelling facts to depart from this general rule. See Durnell
v. Durnell, 194 W. Va. 464, 460 S.E.2d 710 (1995) (allowing former
wife rehabilitative spousal support for ten years where former husband was
earning almost $600,000 per year in private medical practice). Therefore, under
the facts of this case we do not believe that the lower courts abused their
discretion in limiting rehabilitative spousal support to Ms. Campbell to five years. However, we will note that our decision does not preclude Ms. Campbell
from seeking an extension or modification of spousal support in the future. See W. Va.
Code § 48-8-105(b) (The court may modify an award of rehabilitative
spousal support if a substantial change in the circumstances under which rehabilitative
spousal support was granted warrants terminating, extending or modifying the
award or replacing it with an award of permanent spousal support.). We
have previously indicated that modification of rehabilitative [spousal
support] may become a necessity where the dependent spouse is unable to meet
the rehabilitative plan[.] Wood v. Wood, 190 W. Va. 445,
455, 438 S.E.2d 788, 798 (1993) (finding former spouse was entitled to an extension
of rehabilitative alimony after she earned college credits to become a teacher
but was only able to find work as a substitute teacher). See also Luff
v. Luff, 174 W. Va. 734, 329 S.E.2d 100 (1985) (ordering an extension
of rehabilitative spousal support where former spouse's health had deteriorated
and she was unable to find gainful employment).
The court shall consider the following factors in determining the amount
of spousal support, child support or separate maintenance, if any, to be
ordered under the provisions of parts 5 and 6, article five of this chapter,
as a supplement to or in lieu of the separation agreement:
(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 article seven of this chapter, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance: Provided, That for the purposes of determining a spouse's ability to pay spousal support, the court may not consider the income generated by property allocated to the payor spouse in connection with the division of marital property unless the court makes specific findings that a failure to consider income from the allocated property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially
increase his or her income-earning abilities within a reasonable
time by acquiring additional education or training;
(11) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
(12) The anticipated expense of obtaining the education and training described in subdivision (10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the parties and their minor children;
(15) The tax consequences to each party;
(16) 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;
(17) The financial need of each party;
(18) The legal obligations of each party to support himself or herself and to support any other person;
(19) Costs and care associated with a minor or adult child's physical or mental disabilities; and
(20) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.