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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
IN RE: THE MARRIAGE OF
KATHY M. SLOAN,
Petitioner Below, Appellee
EDWARD W. SLOAN,
Respondent Below, Appellant
Appeal from the Circuit Court of Wood County
The Honorable George W. Hill, Judge
Civil Action No. 04-D-162
Affirmed in part, reversed in part, and remanded
Submitted: February 14, 2006
Filed: March 16, 2006
Richard A. Bush
Parkersburg, West Virginia
Attorney for the Appellee
for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. In reviewing a final order entered
by a circuit court judge upon a review of, or upon a refusal to review, a final
order of a family court judge, we review the findings of fact made by the family
court judge under the clearly erroneous standard, and the application of law
to the facts under an abuse of discretion standard. We review questions of law de
Syllabus, Carr v. Hancock
, 216 W.Va. 474, 607 S.E.2d 803
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
, 160 W.Va. 514, 236 S.E.2d 36 (1977).
This is an appeal by Edward W. Sloan
(hereinafter Appellant) from a final order of the Circuit Court of
Wood County. The Appellant contends that the lower court committed various reversible
errors in the resolution of the divorce between the Appellant and his former
wife, Appellee Kathy M. Sloan. Upon thorough review of the record, briefs, arguments
of counsel, and applicable precedent, this Court affirms in part, reverses in
part, and remands this matter for further action consistent with this opinion.
I. Factual and Procedural History
In March 2004, the Appellee
filed for divorce after almost twenty-three years of marriage. The Family
Court conducted a hearing on August 13, 2004, in which both parties testified.
The evidence presented at that hearing addressed the parties' respective financial
positions and also revealed that both parties are in their mid-forties
and are in good health. One minor child of the parties remains in high school
and is expected to graduate from high school in May 2006. (See
The pertinent testimony further indicated that Mrs.
Sloan was previously employed by the federal government in a clerical
position in 1983. Mrs. Sloan also possesses thirty to forty hours of college
credit. The evidence further reflected
that the Appellant earns approximately $102,000.00 per year. The parties also
submitted extensive evidence regarding their expected monthly incomes and expenses.
While the stipulated value of the marital
home was $44,000.00, the parties had recently expended approximately $62,500.00
in upgrades to the home in anticipation of Mrs. Sloan's parents living in the
home with the parties. Mrs. Sloan's parents allegedly provided Mrs. Sloan with
$10,000.00 to assist in the construction expenses of the addition, but Mrs. Sloan
decided to return that $10,000.00 to her parents. Both of Mrs. Sloan's parents
are now deceased.
By order entered January 21, 2005, the Family
Court granted the parties a divorce based upon irreconcilable differences. The
Family Court ruled that Mrs. Sloan was entitled to $1,800.00 monthly in spousal
support for thirty-six months and $1,000.00 per month thereafter until she attains
the age of sixty-two. This calculation of the amount of spousal support was based upon
Mr. Sloan's income of $102,000.00 per year, as well as the parties' disclosures
of financial information. The Family Court found that with substantial
retraining, Mrs. Sloan could resume employment in a clerical capacity. However,
due to the family's decision that Mrs. Sloan should remain at home during the
years in which her children were in school, the Family Court found that she should
not be required to return to
work immediately. Thus, the Family Court attributed only minimum wage to Mrs.
Sloan, approximately $900.00 monthly.
With regard to child support, the Family
Court ordered the Appellant to pay$676.00 monthly. The order further required
the child support obligation to continue beyond the date when Daniel reaches
the age of eighteen years, and provided that the obligation should continue
so long as said child is then
unmarried, is residing with a parent, is enrolled in a secondary school or vocational
school, and is making substantial progress toward a diploma; provided, however,
that said child support obligation should not be required to continue beyond
the date when said child reaches the age of twenty (20) years.
Mr. Sloan's pension from his employment with
General Electric was divided evenly between the parties. With regard to a 401K
plan, the Family Court order required that Mrs. Sloan should receive $34,300.00
from that account and Mr. Sloan should receive the remaining amount, approximately
$110,831.00. Loans were taken against the 401K account in order to subsidize
the parties' approximate $62,500.00 expenditure to remodel the marital home. With
regard to the other outstanding debts of the parties, the lower court found that
Mrs. Sloan should be required to pay her car loan of $9,122.00 and a dental bill
of $1,800.00. Further, the Appellant was required to pay $354.00 monthly for
three years in COBRA coverage for Mrs. Sloan and $39.00 monthly in insurance
for the parties' son. In explaining
the allocation of marital debt, the Family Court stated that it was requiring
the Appellant to pay a substantially greater portion of the marital debt,
thereby off-setting the fact that he will be retaining a substantially greater
portion of the marital assets.
By order entered March 7, 2005, the Circuit
Court of Wood County affirmed the findings and conclusions of the Family Court.
Mr. Sloan now appeals to this Court, contending that (1) the spousal support
award is excessive; (2) Mrs. Sloan's attorney should not have been permitted
to prepare the Qualified Domestic Relations Order regarding Mr. Sloan's pension;
(3) the marital home should have been sold; (4) child support beyond the child's
18th birthday is improper; and (5) the final order contained elements
not discussed during the hearing, such as the award of child support possibly
to age twenty.
II. Standard of Review
In establishing a standard
of review for examining a lower court's rulings on matters of equitable distribution,
this Court has consistently held as follows:
reviewing a final order entered by a circuit court judge upon a review of, or
upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous standard,
and the application of law to the facts under an abuse of discretion standard.
We review questions of law de novo.
Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). See
also 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 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. Based upon these
standards, we address the merits of this appeal.
A. Spousal Support
Mr. Sloan contends that
the award of $1,800.00 per month in spousal support is unreasonably high. In
reviewing lower court pronouncements regarding spousal support, this Court
has explained 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
, 196 W.Va. 535, 541, 474 S.E.2d 465, 471 (1996) (quoting Hickman
, 191 W.Va. 725, 726, 448 S.E.2d 156, 157 (1994)).
As this Court has maintained, spousal support
is not to 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) (quoting Stone v. Stone
, 200 W.Va. 15, 19, 488 S.E.2d 15,
19 (1997)). Pursuant to West Virginia Code § 48-6-301(b) (2001) (Repl.
2004), (See footnote 2)
items must be considered in determining the amount of spousal support to be
awarded. The Family Court's order reveals extensive consideration of all factors
enumerated by the statute. Foremost, the Family Court acknowledged the salary
of the Appellant, $102,000.00 annually, and the absence of any recent employment
history of Mrs. Sloan. The Family Court also commented upon the comfortable
standard of living enjoyed by the couple during their marriage and noted that
the husband's salary would adequately support the maintenance of the current
lifestyles of each of the parties. Specifically, the Family Court explained
parties established a comfortable middle-class standard of living during their
marriage. Their current lists of monthly expenses disclose lifestyles somewhat
reduced from previous levels, appropriate to their current means and the fact
that they are now maintaining two households on a single income. Adequate income
is available to maintain the current lifestyles of each of the parties.
Based upon this Court's review of the record,
as well as the Family Court's factual findings, conclusions of law, and rationale,
this Court finds no justification to disturb the lower court's determinations
regarding the amount of spousal support owed by the Appellant. We consequently
affirm that portion of the Family Court order.
B. Equitable Distribution
This Court's review
of the financial evidence introduced by the parties reveals that the Family
Court and Circuit Court have placed the primary burden upon the Appellant to
repay debts incurred as a result of the marital decision to improve the family
home. The expenditures for such improvements were financed through loans from
the Appellant's 401K account, and the Appellant was required by the lower courts'
orders to repay the loans without assistance from the Appellee. According to
evidence in the record, the 401K account, as of January 18, 2004, contained
$144,681.00. In addition, there was an outstanding balance of $26,228.30. The
imbalance in responsibility for repayment of that debt was recognized by the
Family Court and was justified by the assertion that the substantial debt was
assumed by the Appellant because he retained the primary portion of the 401K
However, our review of this matter leads
to the conclusion that, particularly in light of the fact that the Appellee allegedly
decided to return the offered $10,000.00 to her
parents, it appears that the parties should share in the financial burden that
was created through the joint marital decision to improve the family home.
Moreover, upon receiving the marital home in the divorce action, it is the
Appellee, Mrs. Sloan, who now possesses the benefits of the remodeling of the
marital home. The parties agreed to remodel the home in anticipation of Mrs.
Sloan's parents residing there; money offered by Mrs. Sloan's parents was rejected
by Mrs. Sloan; the bulk of the debt was undertaken by the Appellant
in the divorce action; and Mrs. Sloan currently reaps the benefits of the remodeling.
We find such result inequitable, even in light of the fact that the Appellant
will ultimately retain the larger portion of the 401K funds.
While one specific debt obviously cannot
be analyzed in a vacuum and the comprehensive financial situation must be simultaneously
evaluated, this Court finds that the Family Court abused its discretion in this
limited regard. This case is remanded for additional evidence on the issue
of expenditures for remodeling of the marital home and reconsideration of the
allocation of debt incurred thereby. Evidence was submitted indicating that the
parties invested approximately $62,500.00 in the home, as remodeled, but that
the appraised value of the home, as remodeled, does not exceed $44,000.00. Evidence
also indicated that the home is located in a less desirable neighborhood and
that the appraised value did not change substantially after the addition of the
new kitchen, bathroom, and other amenities.
Upon remand, the Family Court should ascertain
with some precision the amount the parties invested in the home in excess of
the appraised value of the home, and upon findings of fact and conclusions of
law modify its final order to assess one half of the excess investment over the
appraised value to each of the parties, in such manner that the Appellant and
Mrs. Sloan shall contribute equally toward the excess of the renovation expenditures
over the appraised value of the home and the ultimate repayment of the loans
taken from the 401K plan for those excess expenditures. (See
C. Child Support
West Virginia Code § 48-11-103
(2002) (Repl. Vol. 2004) provides that child support may be extended past the
age of eighteen under certain circumstances. In pertinent part, the statute
provides as follows:
Upon a specific finding of good cause shown and upon findings of fact and conclusions
of law in support thereof, an order for child support may provide that payments
of such support continue beyond the date when the child reaches the age of eighteen,
so long as the child is unmarried and residing with a parent, guardian or custodian
and is enrolled as a full-time student in a secondary educational or vocational
program and making substantial progress towards a diploma: Provided, That such
payments may not extend past the date that the child reaches the age of twenty.
In the present case, the hearing conducted
by the Family Court did not contain any specific reference to the potential for
extension of child support beyond the age of eighteen. There was apparently no
discussion of such of possibility at the hearing; the final order simply set
forth that requirement without prior discussion. In response to the Appellant's
brief in this case, the Appellee acknowledged that the Family Court may
have erred in failing to make the required statutory findings to extend the child
support obligation beyond the age of eighteen. However, the Appellee contended
that any error is harmless and that the statutory extension should apply to extend
the child support obligation until Daniel graduates from high school.
Daniel turned eighteen in February 2006.
He is expected to graduate from high school in May 2006. (See
footnote 4) Thus, under the provisions of the statute quoted above,
it appears that this young man may be entitled to continued child support three
months past his eighteenth birthday. However, we find that the lower court abused
its discretion by entering an order in which no evidence was presented to extend
child support beyond the age of eighteen. On remand and full consideration of
the evidence developed or to be developed by the parties on this issue, the lower
court should make such findings of fact and conclusions of law as shall be appropriate
to determine the extent to which the child support
obligation should continue beyond the age of eighteen, if any, and set forth
a termination date for the child support obligation.
Affirmed in part, reversed in part, and remanded.
The parties' minor son,
Daniel, was born on February 29, 1988, and became eighteen years of
age approximately three months prior to his scheduled May 2006 high
West Virginia Code § 48-6-301(b)
provides as follows:
(b) 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 [§§ 48-5-501 through 48-5-514 and §§ 48-
6-101 through 48-5-613[sic]] of this chapter, as a supplement to or in lieu of
the separation agreement:
The length of time the parties were married;
The period of time during the marriage when the parties actually lived together
as husband and wife;
The present employment income and other recurring earnings of each party from
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;
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;
The ages and the physical, mental and emotional condition of each party;
The educational qualifications of each party;
Whether either party has foregone or postponed economic, education or employment
opportunities during the course of the marriage;
The standard of living established during the marriage;
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;
Any financial or other contribution made by either party to the education, training,
vocational skills, career or earning capacity of the other party;
The anticipated expense of obtaining the education and training described in
subdivision (10) above;
The costs of educating minor children;
The costs of providing health care for each of the parties and their minor children;
The tax consequences to each party;
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 financial need of each party;
The legal obligations of each party to support himself or herself and to support
any other person;
Costs and care associated with a minor or adult child's physical or mental disabilities;
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.
The Appellant also assigned
error to the lower court's decision to permit Mrs. Sloan's attorney to prepare
the Qualified Domestic Relations order. We find no error in that regard.
Daniel is apparently an
exemplary student, and there is no reason to believe that he will be academically
unable to graduate with his senior class in May 2006.