664 S.E.2d 121
The appellant herein and respondent below, David Soulsby (hereinafter Dr. Soulsby), appeals from an order entered January 12, 2007, by the Circuit Court of Putnam County. By that order, the circuit court denied Dr. Soulsby's appeal from an order entered November 21, 2006, by which the Family Court of Putnam County refused to reconsider its earlier calculation, by order entered August 8, 2006, of Dr. Soulsby's child support obligation for the parties' two minor children. (See footnote 1) On appeal to this Court, Dr. Soulsby contests the accuracy of this calculation. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we affirm, in part, that portion of the circuit court's January 12, 2007, order pertaining to Dr. Soulsby's child support obligation for K.S. (See footnote 2) We further reverse, in part, that portion of the circuit court's order denying Dr. Soulsby's appeal from the family court's order setting the amount of his child support obligation for D.S. and remand this case for entry of a corrected child support order with respect to D.S. consistent with this opinion.
The family court arrived at this calculation by applying the child support guidelines for (1) one child under the basic shared parenting formula, with regard to K.S., i.e., $3,033.36, and (2) one child under the extended shared parenting formula, with regard to D.S., i.e., $2,545.86. Adding these two amounts together resulted in the total child support ordered to be paid: $5,579 per month. (See footnote 5)
Dr. Soulsby moved for a reconsideration of the family court's calculation of child support claiming that applying the guidelines in this manner resulted in a higher monthly child support payment than if the amount of child support due and owing for both of the parties' two minor children had been calculated under either the basic shared parenting formula or the extended shared parenting formula. In this regard, Dr. Soulsby contended that calculating the amount of his child support obligation for both K.S. and D.S. using the basic shared parenting guidelines results in a monthly obligation of $4,423.47; calculating his child support obligation for both K.S. and D.S. using the extended shared parenting guidelines results in a monthly obligation of $3,712.55. Both of these amounts are substantially less than the $5,579 the family court ordered him to pay. Because each of the parties' children has a different parenting arrangement, Dr. Soulsby suggested that the above two calculations based upon two children per family should be averaged together (($4,423.47 + $3,712.55) / 2) in order to accurately reflect the parenting arrangements and to give effect to the incremental increase contemplated by the Legislature; this figure would result in a $4,068.01 monthly child support obligation, which would be $1,511 less per month than the $5,579 monthly child support obligation ordered by the family court.
By order entered November 21, 2006, the family court denied Dr. Soulsby's motion for reconsideration determining its earlier calculation of child support to be correct. Dr. Soulsby appealed this ruling to the circuit court, which refused to consider his petition for appeal by order entered January 12, 2007, finding that the family court had not committed reversible error in its calculation of child support. (See footnote 6) From this adverse decision, Dr. Soulsby appeals to this Court.
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 novo.
Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Moreover, [w]here the
issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M.
v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian
Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995)
(Interpreting a statute or an administrative rule or regulation presents a purely legal
question subject to de novo review.). We will consider the parties' arguments in light of
[i]t is one of the purposes of the Legislature in enacting
this chapter to improve and facilitate support enforcement
efforts in this state, with the primary goal being to establish and
enforce reasonable child support orders and thereby improve
opportunities for children. It is the intent of the Legislature that to the extent practicable, the laws of this state should encourage and require a child's parents to meet the obligation of providing that child with adequate food, shelter, clothing, education, and health and child care.
W. Va. Code § 48-11-101(a) (2001) (Repl. Vol. 2004). Recognizing that children should not be subjected to a different standard of living simply because their parents reside in separate households, it has further been declared that
[t]he Legislature recognizes that children have a right to share in their natural parents' level of living. Expenditures in families are not made in accordance with subsistence level standards, but are made in proportion to household income, and as parental incomes increase or decrease, the actual dollar expenditures for children also increase or decrease correspondingly. In order to ensure that children properly share in their parents' resources, regardless of family structure, these guidelines are structured so as to provide that after a consideration of respective parental incomes, child support will be related, to the extent practicable, to the standard of living that children would enjoy if they were living in a household with both parents present.
W. Va. Code § 48-13-102 (2001) (Repl. Vol. 2004). More specifically, in regard to the guidelines it has established for the calculation of child support awards, the Legislature has proclaimed that
[t]his article establishes guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders. There is a rebuttable presumption, in any proceeding before a court for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.
W. Va. Code § 48-13-101 (2001) (Repl. Vol. 2004).
To achieve the stated legislative intent, the Legislature has established various guidelines to facilitate the calculation of child support awards. In an attempt to ensure uniformity and predictability, the Legislature has made mandatory the application of the child support guidelines when calculating the amount of a child support obligation.
The guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.
W. Va. Code § 48-13-701 (2001) (Repl. Vol. 2004) (emphasis added). Moreover, applying
these guidelines to a particular case results in a child support award that is presumptively
correct. The amount of support resulting from the application of the guidelines is
presumed to be the correct amount, unless the court, in a written finding or a specific
finding on the record, disregards the guidelines or adjusts the award as provided for in
section 13-702 [§ 48-13-702]. W. Va. Code § 48-13-203 (2001) (Repl. Vol. 2004). Accord W. Va. Code § 48-13-101 (There is a rebuttable presumption, in any proceeding
before a court for the award of child support, that the amount of the award which would
result from the application of these guidelines is the correct amount of child support to be
awarded.); W. Va. Code § 48-13-701 (The guidelines in child support awards apply as
a rebuttable presumption to all child support orders established or modified in West
Although application of the guidelines is mandatory and results in a presumptively correct award of child support, courts nevertheless are permitted limited discretion to deviate from the established guidelines when the facts of a particular case do not fall squarely within the confines thereof.
(a) If the court finds that the guidelines are inappropriate
in a specific case, the court 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 that may be possible reasons for deviation:
(1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
(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;
(5) The child resides with third party;
(6) The needs of another child or children to whom the obligor owes a duty of support;
(7) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or
(8) Whether the total of spousal support, child support and child care costs subtracted from an obligor's income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level.
W. Va. Code § 48-13-702 (2001) (Repl. Vol. 2004). Accord W. Va. Code § 48-13-203 (presuming child support award derived from application of guidelines to be correct unless the court, in a written finding or a specific finding on the record, disregards the guidelines or adjusts the award as provided for in section 13-702 [§ 48-13-702]). (See footnote 7) This statutory language plainly states that courts may choose to calculate the amount of child support due and owing in a particular case in a manner that does not strictly comply with the statutory child support guidelines when the facts of that case do not fit squarely within those guidelines. Accordingly, we hold that, pursuant to the plain language of W. Va. Code § 48- 13-702(a) (2001) (Repl. Vol. 2004), when a court calculating the amount of a child support obligation in a given case finds application of the guidelines to the facts of that case to be inappropriate, the court 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. When a court disregards or deviates from the child support guidelines, 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). W. Va. Code § 48- 13-702(a).
Turning now to the facts of the case sub judice, we are immediately concerned by the family court's strict application of the child support guidelines to calculate Dr. Soulsby's child support obligation regarding his two minor children when the guidelines do not seem to take into consideration the unique, but not uncommon, parenting arrangement and visitation schedule involved in this case. Here, Mrs. Soulsby has primary custody of both K.S. and D.S., but the parenting arrangement and visitation schedule is different for each child: Dr. Soulsby has no, or extremely limited, contact with K.S. as determined by her, (See footnote 8) while Dr. Soulsby has extensive visitation with D.S. during the school year and extended residential visitation with D.S. during the summer months. The child support guidelines, however, do not appreciate these separate and distinct parenting arrangements and visitation schedules, and strict application of the guidelines to the facts of this case does not achieve an accurate calculation of child support in light of the time each child spends with the obligor and obligee parents.
For example, W. Va. Code § 48-13-204 (2001) (Repl. Vol. 2004) specifically
states that [t]he calculation of the amount awarded by the support order requires the use
of one of two worksheets which must be completed for each case. Worksheet A is used for
a basic shared parenting arrangement. Worksheet B is used for an extended shared
parenting arrangement. (Emphasis added). The parties do not dispute that the parenting
plan for the children entails a basic shared parenting arrangement (See footnote 9) for K.S. and an extended
shared parenting arrangement (See footnote 10) for D.S. However, the statutory language of W. Va. Code
§ 48-13-204 does not indicate which worksheet should be completed when both types of
parenting arrangements are involved in a single case.
Additionally, the referenced worksheets, themselves, suggest a mandatory application to their relative cases. In this regard, the provision relating to Worksheet A states that [c]hild support for basic shared parenting cases shall be calculated using [this] . . . worksheet. W. Va. Code § 48-13-403 (2001) (Repl. Vol. 2004) (emphasis added). Likewise, the statutory language pertaining to Worksheet B directs that [c]hild support for extended shared parenting cases shall be calculated using [this] . . . worksheet. W. Va. Code § 48-13-502 (2001) (Repl. Vol. 2004) (emphasis added). Insofar as the word shall has a mandatory connotation, it is apparent that if the worksheets are used to apply the child support guidelines in a given case, the worksheet relating to the parenting arrangement involved therein is the one that is applicable. See, e.g., State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999) (Generally, 'shall' commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary. (citations omitted)). Again, however, the statutes are silent as to the worksheet(s) to be used in a case such as this where multiple parenting arrangements are involved.
Furthermore, the practical effect of applying the child support guidelines is that a parent providing support for two children does not have a support obligation that is double that which a parent providing support for one child would be required to pay. Rather, it is apparent that the guidelines, themselves, have adopted incremental increases for the child support attributable to each additional child in a family. In other words, instead of calculating the child support obligation for one child and multiplying that figure by the number of children in that particular family, the guidelines contain predetermined amounts that correspond with the number of children in a family whose support is at issue. See W. Va. Code § 48-13-301 (2001) (Repl. Vol. 2004). To illustrate further, referring to the table of monthly basic child support obligations set forth in W. Va. Code § 48-13-301 demonstrates that when the parents' combined adjusted gross monthly income is $550, the child support obligation for one child is $127, while the child support obligation for two children is $185.
Under the facts at issue in the instant proceeding, however, the resulting child support obligation calculated by the family court did not reflect this incremental increase. Because the family court applied the guidelines for each child's unique situation, it calculated each child's support as if there were no other children in that family. Thus, the family court determined the monthly child support obligation for K.S. under the basic shared parenting worksheet to be $3,033 and the monthly child support obligation for D.S. under the extended shared parenting worksheet to be $2,546, for a total monthly child support obligation of $5,579. By contrast, if both K.S. and D.S. had the same type of parenting arrangement and the child support obligation for both of them had been calculated under the basic shared parenting worksheet, the monthly child support obligation for both K.S. and D.S. would be $4,423. Similarly, if the child support obligation for both K.S. and D.S. had been calculated under the extended shared parenting worksheet, the monthly child support obligation for them both would be $3,713. Therefore, it is clear that the amount of the child support obligation determined by the family court is slightly inflated over the amounts derived from the worksheets which include the incremental increase for multiple children. The child support statutes, though, are silent as to how to balance the competing
interests of applying the guidelines applicable to the multiple parenting arrangements at issue in this case while also giving effect to the incremental increase for additional children apparent from the statutory calculations, themselves.
Finally, while the Legislature has allowed for an adjustment to be made when calculating the amount of a child support obligation in cases involving split physical custody to more accurately reflect the amount of time each parent actually is caring for his/her child(ren), this case does not involve that type of arrangement. See W. Va. Code § 48-13-503 (2001) (Repl. Vol. 2004) (providing instructions for calculating child support in cases involving split physical custody). Split physical custody involves a situation where there is more than one child and where each parent has physical custody of at least one child. W. Va. Code § 48-1-241 (2001) (Repl. Vol. 2004). Here, however, Mrs. Soulsby has physical custody of both of the parties' minor children, while Dr. Soulsby has only extended visitation with his son. Thus, neither do the split physical custody provisions apply to the facts of this case.
Having determined, then, that the guidelines are inappropriate in [this] specific case, W. Va. Code § 48-13-702(a), insofar as they do not contemplate the present factual scenario in which a different parenting arrangement is in place for each child in this family, we conclude that the family court erred by strictly applying the child support guidelines to calculate Dr. Soulsby's child support obligation. In the absence of legislative guidance as to how to calculate child support in cases involving multiple parenting arrangements, the family court correctly determined that Dr. Soulsby's child support obligation for K.S. should be calculated using the basic shared parenting formula to arrive at a monthly child support obligation of $3,033. This calculation properly takes into consideration the fact that K.S. is almost exclusively cared for by Mrs. Soulsby and that she spends a minimal amount of time with Dr. Soulsby. Accordingly, we affirm the circuit court's ruling which denied Dr. Soulsby's appeal from the family court's order as it relates to his child support obligation for K.S.
With respect to the family court's calculation of Dr. Soulsby's child support obligation for D.S., however, we believe that a strict application of the extended shared parenting formula results in an inflated child support obligation when added to that amount previously calculated for K.S. and that the family court erred by not deviating from the guidelines. As the governing statutes specifically recognize, there may arise certain cases which require an adjust[ment of] the guidelines-based award to accommodate the needs of the child or children or the circumstances of the parent or parents. W. Va. Code § 48- 13-702(a). In this case, D.S. requires more parenting time with his father than does his sister K.S.; in order to accommodate D.S.'s needs, the family court awarded extended visitation with D.S. to Dr. Soulsby. As a result, D.S. spends approximately 136 days per year in his father's care, resulting in an extended shared parenting arrangement. See W. Va. Code § 48-13-501 (2001) (Repl. Vol. 2004) (applying extended shared parenting formula in cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent)). See also W. Va. Code § 48-1-239(c) (2001) (Repl. Vol. 2004) (defining extended shared parenting). However, simply applying the extended shared parenting guidelines to calculate D.S.'s child support results in an inflated figure because the incremental increase apparent in the statutory guidelines cannot be incorporated when each child's support obligation is calculated under a different worksheet.
In order to achieve a more equitable calculation, Dr. Soulsby should be afforded credit for the time that D.S. is in his care. Therefore, Dr. Soulsby's child support obligation for D.S. should be calculated by first applying the extended shared parenting formula to arrive at a monthly child support obligation of $2,546; this is the amount obtained by the family court. Next, Dr. Soulsby should be given credit for the amount of time that he cares for D.S. To achieve this result, the number of days per year D.S. is with Dr. Soulsby should be divided by the total number of days in one year; thus, 136 (See footnote 11) divided by 365 equals 0.37260. This percentage of care should then be multiplied by the monthly support obligation obtained above to calculate the amount by which the monthly obligation should be offset to account for Dr. S oulsby's care of D.S. Therefore, $2,546 multiplied by 0.37260 equals $949. Deducting the $949 offset from the $2,546 monthly support obligation yields an adjusted monthly support obligation of $1,597 for D.S. (See footnote 12) Adding the two monthly support obligations together results in a total monthly support obligation of $4,630: $3,033 (for K.S.) plus $1,597 (for D.S.) equals $4,630. Accordingly, we reverse the circuit court's ruling denying Dr. Soulsby's appeal from the family court's order as it relates to his child support obligation for D.S. We further remand this case for the entry of a corrected child support order regarding D.S. consistent with this opinion.
In closing, we appreciate the difficulty encountered by the family court in calculating child support in this case in which there were no clear legislative directives as to how to incorporate two different types of parenting arrangements into a single calculation of child support. The child support guidelines are a legislative construct that were created by and are subject to amendment by the Legislature. Simply stated, this Court does not sit as a superlegislature. See Robinson v. Charleston Area Med. Ctr., Inc., 186 W. Va. 720, 726, 414 S.E.2d 877, 883 (1991) (commenting that the judiciary may not sit as a superlegislature (citation omitted)). It is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten. Subcarrier Communications, Inc. v. Nield, 218 W. Va. 292, 299 n.10, 624 S.E.2d 729, 736 n.10 (2005) (internal quotations and citations omitted). If the Legislature has promulgated statutes to govern a specific situation yet is silent as to other related but unanticipated corresponding situations, it is for the Legislature to ultimately determine how its enactments should apply to the latter scenarios.
. . . When specific statutory language produces a result argued to be unforseen by the Legislature, the remedy lies with the Legislature, whose action produced it, and not with the courts. The question of dealing with the situation in a more satisfactory or desirable manner is a matter of policy which calls for legislative, not judicial, action.
Worley v. Beckley Mech., Inc., 220 W. Va. 633, 643, 648 S.E.2d 620, 630 (2007) (internal
quotations and citations omitted). Therefore, we strongly urge the Legislature to provide
instructions as to the proper method of applying the child support guidelines to calculate
the child support obligation in cases, such as this, where each child has a different parenting
plan and visitation schedule with the obligor parent in order to ensure the uniformity and
predictability it wishes to secure through the implementation and application of the
guidelines to child support calculations. W. Va. Code § 48-13-101.