Ronald J. Flora
Milton, West Virginia
Attorney for the Appellee
James M. Cagle
Charleston, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE NEELY dissents and reserves the right to file a dissenting
1. "The concept of 'rehabilitative alimony' generally
connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during
which gainful employment can be obtained." Syllabus Point 1,
Molnar v. Molnar, 173 W. Va. 200, 314 S.E.2d 73 (1984).
2. "Under W. Va. Code, 31A-4-33 (1969), where separate
funds are deposited in a joint account in the names of both husband
and wife, such funds are presumed to be marital property for
purposes of equitable distribution." Syllabus Point 7, Whiting v.
Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).
3. "The purpose of W. Va. Code, 48-2-13(a)(4) (1986),
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." Syllabus Point 14, Bettinger v.
Bettinger, 183 W. Va. 528, 396 S.E.2d 709 (1990).
In this case, Joyce Smith appeals from an order of the
Circuit Court of Putnam County which granted a divorce to her
husband, Dr. Stephen Smith. Mrs. Smith makes several assignments
of error concerning the trial court's failure to award alimony.
Mrs. Smith also asks to be awarded attorneys' fees. We address
each assignment individually.
Dr. and Mrs. Smith met while Dr. Smith was in medical school in Huntington. Mrs. Smith, a widow with two sons, taught nursing. They married in July, 1980, before Dr. Smith's final year of medical school. After Dr. Smith's graduation, the family relocated to Madison, Wisconsin, where Dr. Smith trained as a resident physician. In December, 1981, the couple's daughter was born. While in Wisconsin, Mrs. Smith initially worked as a nurse, but later entered a program to pursue a Master's degree in community health nursing. During this time, the family lived on Dr. Smith's salary, his moonlighting income, Mrs. Smith's stipend, and her sons' Social Security survivors' benefits.
The family returned to West Virginia in 1985. Dr. Smith initially joined a group medical practice, but later started his own solo practice. Mrs. Smith taught nursing at the University of Charleston, and then worked in Dr. Smith's office for approximately
six months in 1987. She later took a position as a school nurse in
Putnam County, where she was working at the time of the evidentiary
hearings.See footnote 1 She earned approximately $20,000 per year in the school
nurse position and took temporary jobs during the summer months to
Dr. and Mrs. Smith separated in September, 1988, and Dr.
Smith filed for divorce one month later. Mrs. Smith answered and
counterclaimed in November, 1988. Following litigation, the family
law master filed the recommended decision in October, 1990. The
trial court finally filed the order from which Mrs. Smith appeals
in May, 1991.
Mrs. Smith complains that the circuit court erroneously failed to award her alimony or to determine that Dr. Smith was unjustly enriched by the use of the social security benefits her sons received as a result of the death of their father. In response, Dr. Smith argues that alimony is inappropriate because Mrs. Smith could earn more than she is currently making at her job as a school nurse, which Dr. Smith characterizes as underemployment. He also claims that he was not unjustly enriched by the use of Mrs. Smiths' sons' funds.
The family law master found no basis to award alimony of any type. The circuit court adopted this finding and denied alimony. Mrs. Smith seeks rehabilitative alimony to enable her to obtain a Ph.D. She testified that with such a degree, she could earn up to $50,000 per year teaching nursing. With her Master's degree, she testified that she could earn up to $30,000 a year, but only by working as a clinical nurse at a hospital, which would require shift work outside of her field of specialization. The cost of obtaining the advanced degree was estimated to be $12,000 a year over a two-year period. Dr. Smith's gross earnings from his medical practice were shown to be approximately $155,000 a year.
We recognized the concept of rehabilitative alimony in
Molnar v. Molnar, 173 W. Va. 200, 314 S.E.2d 73 (1984), and in
Syllabus Point 1 gave this explanation of the term and its purpose:
"The concept of 'rehabilitative
alimony' generally connotes an attempt to
encourage a dependent spouse to become self-supporting by providing alimony for a limited
period of time during which gainful employment
can be obtained."
In most of our cases in this area, the issue has been whether the
trial court was correct in awarding rehabilitative alimony rather
than permanent alimony.See footnote 2
In several cases we have affirmed an award of rehabilitative alimony where the spouse had some job skills and could upgrade them through training. See, Hanshaw v. Hanshaw, 180 W. Va. 478, 377 S.E.2d 470 (1988); Hoak v. Hoak, 179 W. Va. 509, 370 S.E.2d 473 (1988); Greeson v. Greeson, 178 W. Va. 189, 358 S.E.2d 448 (1987). Hoak is perhaps the most analogous of these cases. There, the wife had a college degree and was awarded two years of rehabilitative alimony in order to secure a specialty in accounting. The main difference between this case and Hoak is that at the time of the divorce, Mrs. Hoak was only working on a sporadic basis, while Mrs. Smith was working full time.
Other jurisdictions have authorized rehabilitative
alimony where the wife was working full time but was able to
demonstrate that rehabilitative alimony would materially increase
her earning capacity. See, e.g., In Re Marriage of Cheger, 213
Ill. App. 3d 371, 157 Ill. Dec. 116, 571 N.E.2d 1135 (1991); York
v. York, 823 S.W.2d 45 (Mo. App. 1991); Wahlberg v. Wahlberg, 479
N.W.2d 143 (N.D. 1992); Brooks v. Brooks, 470 N.W.2d 827 (S.D.
1991). We note that in none of these cases was the husband's
ability to pay an issue. No issue of ability to pay should arise
in this case because Dr. Smith's income was found to be
approximately $155,000 a year.
Finally, we note that the Legislature has specifically recognized the right of a spouse to seek this type of alimony.
W. Va. Code, 48-2-16(b) (1984), sets out the factors to be
considered in awarding alimony, among which are:
"(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; . . . ."
We find that the circuit court erred in not favorably
considering Mrs. Smith's rehabilitative alimony claim. On remand,
the record needs to be developed further as to the economic
benefits from the Ph.D. degree, but the award should not be
rejected merely because Mrs. Smith is currently capable of earning
$30,000 a year. Where a husband enjoys significantly higher income
than the wife, the wife's claim for additional training to increase
her income should be favorably considered.
We find Mrs. Smith's claim that Dr. Smith has been unjustly enriched by use of her sons' survivors' benefits unconvincing. Mrs. Smith testified that during the period the family resided in Wisconsin, she deposited these monies into the parties' joint account. The money in the joint account was then used to pay household expenses. It is undisputed that Mrs. Smith's sons were part of the household during this time and thus received
the benefit of the funds. We note, additionally, that we have held
that the transfer of separate property to a joint title creates a
presumption of gift to the marital estate. In Syllabus Point 7 of
Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990), we
"Under W. Va. Code, 31A-4-33 (1969), where separate funds are deposited in a joint account in the names of both husband and wife, such funds are presumed to be marital property for purposes of equitable distribution."
Mrs. Smith's commingling of these funds in a joint account created
the presumption of marital property. They were subsequently used
for marital purposes, thus extinguishing her right to claim that
Dr. Smith was unjustly enriched by their use.
Mrs. Smith also argues that the trial court erred in failing to order Dr. Smith to contribute to the health care of their daughter. At the time of the final decree, this issue was controlled by W. Va. Code, 48-2-15(b)(3) (1990), which enables a court to order, as an incident to the payment of child support, either party to purchase or to continue in effect health insurance coverage for a minor child if it can be done for a reasonable cost.See footnote 3 Such payments under this section "shall be deemed to be
alimony, child support or installment payments for the distribution
of marital property, in such proportions as the court shall direct
. . . ." W. Va. Code, 48-2-15(b)(3). Neither the family law
master nor the trial court addressed this issue.
We note that in 1991, the Legislature enacted W. Va. Code, 48-2-15a, which went into effect several weeks after the final decree was entered in this case.See footnote 4 In enacting this new
section, the Legislature did not repeal W. Va. Code, 48-2-15(b)(3).
The two statutory provisions are similar from a substantive
standpoint, although W. Va. Code, 48-2-15a contains much more
procedural detail. This latter section also provides that such
child health care costs ". . . shall be considered by the court in
applying the child support guidelines . . ." W. Va. Code, 48-2-15a(c).
From a review of both W. Va. Code, 48-2-15(b)(3), and W.
Va. Code, 48-2-15a, we conclude that the Legislature has authorized
trial courts in divorce actions to provide for medical coverage of
the minor children where the same is available at a reasonable
cost. On remand, the issue of Dr. Smith's contributions to his
daughter's health care should be determined in accordance with
Finally, Mrs. Smith cites as error the trial court's ruling that each party pay his or her own attorney's fees and that they split the litigation costs, which was contrary to the family law master's recommendation. The family law master had recommended that each party pay one-half of the family law master's fee, but that Dr. Smith pay Mrs. Smith's attorney's fees and all other litigation costs. We hold that Dr. Smith should pay Mrs. Smith's attorney's fees and all costs of litigation, including the family law master's fee.
W. Va. Code, 48-2-13(a)(4) (1992), authorizes the trial
court in a divorce proceeding to "compel either party to pay
attorney's fees and court costs reasonably necessary[.]" We
discussed this provision in Bettinger v. Bettinger, 183 W. Va. 528,
396 S.E.2d 709 (1990), where we concluded that this section
authorized payment of a spouse's attorney fees as reasonably
necessary throughout the divorce proceedings, including an appeal
to this Court. We concluded in Syllabus Point 14 of Bettinger:
"The purpose of W. Va. Code, 48-2-13(a)(4) (1986), 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."
The touchstone of the award is that one spouse has a significantly higher income than the other. It is obvious in this case that Dr. Smith is in a much better financial situation than
Mrs. Smith. Consequently, Mrs. Smith was entitled to obtain
attorneys' fees and costs.See footnote 5
For the reasons stated above, we reverse the judgment of the Circuit Court of Putnam County, and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1At the time the appeal was filed with this Court, Mrs. Smith was employed by the Charleston Area Medical Center.
Footnote: 2See, e.g., Bettinger v. Bettinger, 183 W. Va. 528, 396 S.E.2d 709 (1990); Queen v. Queen, 180 W. Va. 121, 375 S.E.2d 592 (1988); Gorby v. Gorby, 180 W. Va. 60, 375 S.E.2d 424 (1988); Butcher v. Butcher, 178 W. Va. 33, 357 S.E.2d 226 (1987); Molnar v. Molnar, supra.
Footnote: 3W. Va. Code, 48-2-15(b)(3) (1990) provides:
"As an incident to requiring the payment of alimony or child support, the court may order either party to continue in effect
existing policies of insurance covering the
costs of health care and hospitalization of
the other party and the minor children of the
parties: Provided, That if the other party
is no longer eligible to be covered by such
insurance because of the granting of an
annulment or divorce, the court may require a
party to substitute such insurance with a new
policy to cover the other party, or may
consider the prospective cost of such
insurance in awarding alimony to be paid in
periodic installments. If there is no such
existing policy or policies, the court shall
order such health care insurance coverage to
be paid for by the noncustodial parent, if
the court determines that such health care
insurance coverage is available to the
noncustodial parent at a reasonable cost.
Payments made to an insurer pursuant to this
subdivision, either directly or by a
deduction from wages, shall be deemed to be
alimony, child support or installment
payments for the distribution of marital
property, in such proportion as the court
shall direct: Provided, however, That if the
court does not set forth in the order that a
portion of such payments is to be deemed
child support or installment payments for the
distribution of marital property, then all
such payments made pursuant to this
subdivision shall be deemed to be alimony:
Provided, further, That the designation of
insurance coverage as alimony under the
provisions of this subdivision shall not, in
and of itself, give rise to a subsequent
modification of the order to provide for
alimony other than insurance for covering the
costs of health care and hospitalization."
The 1991 amendments to W. Va. Code, 48-2-15, did not alter this provision. See 1991 W. Va. Acts, ch. 46.
Footnote: 4The relevant substantive portion of W. Va. Code, 48-2-15a, is found in subsections (b) and (c), which state:
"(b) In every action to establish
or modify an order which requires the payment
of child support, the court shall ascertain
the ability of each parent to provide medical
care for the children of the parties. The
court shall order one or more of the
(1) The court may order either
parent or both parents to provide insurance
coverage for a child, if such insurance
coverage is available to that parent on a
group basis through an employer or through an
employee's union. If similar insurance
coverage is available to both parents, the
court shall order the child to be insured
under the insurance coverage which provides
more comprehensive benefits. If such
insurance coverage is not available at the
entry of the order, the order shall require
that if such coverage thereafter becomes
available to either party, that party shall
promptly notify the other party of the
availability of insurance coverage for the
(2) If the court finds that
insurance coverage is not available to either
parent on a group basis through an employer,
multi-employer trust or employees' union, or
that the group insurer is not accessible to
the parties, the court may order either
parent or both parents to obtain insurance
coverage which is otherwise available at a
(3) Based upon the respective ability of the parents to pay, the court may order either parent or both parents to be liable for reasonable and necessary medical care for a child. The court shall specify
the proportion of the medical care for which
each party shall be responsible.
(4) If insurance coverage is
available, the court shall also determine the
amount of the annual deductible on insurance
coverage which is attributable to the
children and designate the proportion of the
deductible which each party shall pay.
(c) The cost of insurance coverage shall be considered by the court in applying the child support guidelines provided for in section eight [§ 48A-2-8], article two, chapter forty-eight-a of this code.
Footnote: 5Mrs. Smith also contends that the trial court erred in not ordering Dr. Smith to pay for the college education of the parties' daughter and to obtain a life insurance policy, naming their daughter as an irrevocable beneficiary, as a means of ensuring continued child support payments in the event of his untimely death. This issue was not raised at the hearing before the family law master or in the depositions of the parties. We have repeatedly held that this Court will not decide nonjurisdictional questions which have not been raised in the proceedings below. See, e.g., Torrence v. Kusminsky, 185 W. Va. 734, 408 S.E.2d 684 (1991); Shrewsbury v. Humphrey, 183 W. Va. 291, 395 S.E.2d 535 (1990); Stonebraker v. Zinn, 169 W. Va. 259, 286 S.E.2d 911 (1982). Consequently, we decline to address these issues on appeal.