Category Archives: WV Supreme Court Opinions

WVSC Opinion: Andrea H v. Jason R.C. (Filed 6/5/13)

Read Opinion Here:

WVSC Opinion: T.H. v. D.K. and R.R. (filed 6/12/2012)

FactsRespondents (D.K. and R.R.) are the respective fathers of three minor children. Petitioner (T.H.) is the children’s mother. Upon her divorces from Respondents in 2004 and 2006, Petitioner received primary custody of the minor children.  Between May 2008 and September 2009, three relevant incidents occurred. The Circuit Court summarized these events as follows: First, the Petitioner’s misuse of prescription medication (Ambien) resulted in a 12 year old driving on a public road while the Petitioner was in the passenger seat.  Second, the Petitioner deliberately took medication that she was no longer prescribed at the highest level recommended for her step up program even though she was aware of the side effects.  Third, the Petitioner admitted to taking one of the children out of town so that the Respondent could not see the child. She further admitted that she had not taken her medication that day and that she deliberately disposed of medication in attempt to deceive anyone who would assert a custody action against her.  The Respondents sought a modification of custody. 

Procedural: The Family Court found that there was no substantial change of circumstances and decided not to remove the children from Petitioner’s custody.  The Family Court relied heavily on testimony of Petitioner’s doctor who stated that she was no danger to her children and that she was capable of caring for them.  The Circuit Court reversed and awarded custody of children to the Respondents based on its finding that the establishment of Petitioner’s poor judgment which placed the child in danger, viewed in light of the later questionable incidents constitutes a substantial change of circumstances.  The Court further found that the Family Court relied too heavily on the testimony of the Doctor because it was shown that the information was primarily based on self-report from Petitioner and her family and that the doctor was not aware of the entirety of Petitioner’s actions.

 Holding: The W.Va. Supreme Court AFFIRMED the Circuit Court and adopted its reasoning.

Read the Opinion Here:
Read Dissenting Opinion of Justice Ketchum here: (dissent based on finding that Circuit Court substituted its own judgment for that of the Family Court)

WVSC Opinion: Melinda H. v. William R.II. (filed 4/19/2013)

Facts:   Mother and Father were divorced in 2002. They had two children. Father agreed to pay $700 per month in child support in the Final Divorce Order, though Father voluntarily began paying $850 in 2006.  Father worked as a production specialist with Momentive Performance Materials for over 17 years during which time he earned an MBA.   Father’s Momentive paystub from August 2010 reflected a current monthly gross income of $6,919.48.

Father quit his job at Momentive to work part-time at his fiance’s family business, Marble King, earning $10/hour.  Father’s uncorroborated testimony was that working at Momentive was too stressful and was causing sleeping disorders, loss of appetite, racing thoughts and depression.  Father further testified that he may be able to run Marble King one day.

Father filed a Petition for Modification of Child Support on August 5, 2010 because the eldest child was emancipated and due to his change in employment income.

Procedural:  Family Court attributed income to Father for child support purposes in the amount of $10 per hour at a 40 hour work week.  Child Support was reduced to $332 per month.  Mother appealed. The Circuit Court refused the appeal.

Holding: (Chief J. Benjamin) Reversed. Father should have been attributed income based on prior employment as he met the 3-part statutory test and did not satisfy any exception.  Furthermore, the fact alone that a parent who is the full-time caretaker for a minor child is or is not attributed income based on full time federal minimum wage does not  make attribution of income to the other parent based on prior earnings inequitable.

Reasoning: Family Court failed to analyze statutory 3-part test for attribution of income as set forth Porter v. Bego.  As analyzed under the facts of this case: (1) Father voluntarily left his job at Momentive to be underemployed at Marble King; (2) Father is available for full time work for which he is fitted by prior training and experience; (3) a reasonable father whose ex-wife is a full time caretaker for the parties’ children would not have left his well-paying job at Momentive to take a $10/hour job working only 20 hours per week.

Father does not meet any of the 4 exceptions to attribution of income under WV Code 48-1-205(c).
1. Economic Self-Improvement Exception: Father’s plan will not result, in a reasonable time,  in an economic benefit to his child (who will turn 18 in October 2013).  While may be plans to turn business over to Father’s fiance one day, testimony was that it would not be now or in the foreseeable future.
2. Medical Exception: Father’s uncorroborated testimony regarding his health was insufficient to meet the medical exception.
3.  Inequitable Exception: It is not inequitable to attribute Father income based on prior earnings just because caretaker exception may apply to Mother. (See Holding above).

Relevant Statutes/Caselaw:
WV Code 48-1-205 (attribution of income statute)
Porter v. Bego, 200 W.Va. 168 (1997)(3 part test for determining whether to attribute income).
Johnson v. Johnson, 200 W.Va. 28 (1997)(standard for determining whether parent’s endeavor falls under plan of economic self-improvement exception to attribution of income)
WV DHHR v. Gibson, 207 W.Va. 594 (2000)(Attribution of income to parent who is a full-time caregiver for minor child).

Read full opinion here

WVSC Opinion: In re Grandparent Visitation of A.P. (filed 5/20/2013)

Facts:  Child was born in May 2009. Mother and Child resided in the same home as the child’s maternal Grandparent for the first 2.5 months of child’s life.  During that time, Grandparent provided “extensive care.”  Mother was a school teacher and did provide care for the child over summer break when she was not working.  Mother and Child moved out in July 2009, however, Grandparent continued to have several visits per week and multiple overnights until December 2009.  Mother and Grandparent disagreed over Mother’s significant other and Grandparent had made disparaging comments in the presence of the child.  Visitation gradually decreased thereafter as Mother and Grandparent’s relationship deteriorated, and Mother ultimately prohibited visitation in April 2010. Grandparent filed Petition for Grandparent’s Visitation in June 2010. Father resides in Florida and has no court-ordered visitation.

Procedural: Final Order of the Hancock County Family Court awarded maternal Grandparent visitation once a month for 5 hours and a period of time on Easter weekend, few hours day before Thanksgiving, 4 hours every Dec. 23, and 3 hours near child’s birthday.  Mother appealed.
The Circuit Court Affirmed.

Holding:   West Virginia Supreme Court Reversed and Remanded with directions to deny grandparent visitation.

Applicable Statutes/Case law:
WV Code 48-10-501  (Court shall grant reasonable visitation if in child’s best interest and will not substantially interfere with parent-child relationship)
WV Code 48-10-502 (Factors to consider in awarding grandparent visitation)
WV Code 48-10-702(b) (Rebuttable presumption that a grandparent filing a petition where no other custody-related action is pending is not entitled to visitation where the parent through whom the grandparent is related has custody of the child.)
Troxel v. Granville, 530 U.S. 57 (2000)(significant weight to be given to fit parent’s wishes with regard to grandparent visitation)

Reasoning:   In reconciling competing interests, significant weight must be accorded to fit parent’s wishes.  Mother’s status as a “fit parent” is uncontested. Mother testified extensively about Grandparent’s negativity and adverse impact it will have on Child.  There is a presumption that a fit parent acts in best interests of the child. See Troxel.  Evidence that Grandparent maintained substantial relationship with the child until she was 11 months old did not overcome presumption against visitation by clear and convincing evidence in this case.

Click here to read full opinion:

WVSC Opinion: Mayle v. Mayle (Filed June 8, 2012)

Facts:    Parties were married in 1984.  Both parties originally worked and earned close to the same amount.  The parties agreed that Husband would go to medical school.   While Husband was in medical school, Wife worked outside the home.  Once Husband completed his formal medical education, the parties agreed that Wife would become a full-time homemaker and caretaker for their 3 children.  When the parties separated in 2007, Wife was unemployed and Husband’s income was over $300,000 per year.

Family Court Order:

  • Spousal Support: Wife awarded rehabilitative alimony of $1,500/month for 6 months and permanent spousal support of $5,500/ month for 10 years, after which the amount would be reduced to $1,500.    Family Court’s basis for the reduction was that Wife app ears in good health, very smart and organized, reasonable well-educated with a good head for business per her training and prior work experience. Even though no evidence was presented the Family Court also found that Wife may assume a greater role in her family’s business.
  • Attorney’s Fees: Wife requested reimbursement of attorney fees in the amount $20,000, with an additional $2,000 incurred in costs.  Wife’s attorney charged a flat fee of $20,000, without regard to the actual number of hours worked or an hourly charge.The Family Court denied Wife’s request for attorney fees and costs because Wife had sufficient assets awarded to her to pay her own fees, neither party had acted in bad faith during the proceedings, and her fees were significantly greater than those incurred by Husband.

Wife appealed.

Circuit Court affirmed the decision of the family court.

Issue #1: Amount of Support Awarded. Family Court erred  in award of Rehabilitative Spousal Support and grant of permanent support of $5,500.

Affirmed. Supreme Court found no abuse of discretion in award of rehabilitative spousal support and the grant of permanent spousal support in the amount of $5,500.

Issue #2: Reduction in Spousal Support. Family Court erred in reducing the amount of support to $1,500 after 10 years.

Reversed. The reduction was based on speculative events that may or may not happen.  It was error for Family Court to issue a preemptive modification without sufficient evidence to support the reduction. (Editor’s Note: Court points out that there may be case where reduction is appropriate, but in this case, there was no evidence).

Issue #3: Attorney’s Fees. Family Court erred in denying Wife’s request for reimbursement of attorney fees and costs in the amount $20,000, with an additional $2,000 incurred in costs.  Wife’s attorney charged a flat fee of $20,000, without regard to the actual number of hours worked or an hourly charge.
Reversed.  Abuse of discretion not to award some measure of fees.    This case turns on the disparity between the income of the Wife (unemployed) and the income of the Husband ($300,000+). Wife lacked actual cash assets to pay attorney fees while Husband had present ability to contribute.
The lower court was instructed to appropriately analyze the factors enumerated by the Court in Banker.

   Read the Opinion Here: 

Read Concurring Opinion of Justice Workman here:  

New WVSC Opinion: Romano v. Greve (filed 2/23/2012)

Issue: Whether a parties’ child support obligations can be determined based upon an agreed-upon income calculation methodology that deviates from the statutory child support guidelines or whether it had to be ascertained pursuant to strict application of the statutory guidelines.

Facts: The parties are attorneys with fluctuating income and uncertainty as to the precise amount of their future earnings. Instead of using the methodology stated in the child support guidelines, the parties agreed to recalculate child support on a yearly basis based on the previous years income, with appropriate adjustments for child care expenses and health insurance only.  The calculated amount would be the fixed child support obligation for that year, not subject to modification, retroactive or otherwise.

Holding:  Yes, child support obligations can be determined upon an agreed-upon methodology that deviates from statutory child support guidelines where:

  • Valid agreement of the parties (case: in writing and approved by Fam. Court)
  • Application of the guidelines is inappropriate in the specific case (WV Code 48-13-702(a))(case: both parties were attorneys with fluctuating incomes on a yearly basis)
  • Specific findings of fact as to the  reason for the deviation and the amount of the calculated guidelines award stated on the record. (WV Code 48-13-702)

*What do you think?  On page 14 of the Final Order, the Court implies that it may not uphold a strict deviation where the parties agree not to use the child support guidelines at all.  Parties agreement here was okay because they only deviated from strict application, but did not “denounce [the guidelines] use.”

Read the Opinion Here:

WVSC Opinion: Zickefoose v. Zickefoose (filed Feb. 2012)

New Syllabus Point:  In determining the amount of spousal support to be awarded pursuant to the factors enumerated in W.Va. Code, 48-6-301(b)(1)-(20) [2001], federal, service-connected veterans disability benefits received by the payor spouse may be considered by the family court as a resource, along with the payor’s other income, in assessing the ability of the payor to pay spousal support. Such consideration by the family court is not precluded by 10 U.S.C. § 1408 [2009] of the Uniformed Services Former Spouses’ Protection Act or 38 U.S.C. § 5301 [2003] concerning the nonassignability of veterans benefits.

Read the Opinion Here:

WVSC Opinion: Paugh v. Linger (filed 11/18/2011)

Holding: If the parties’ parenting plan provides for mediation in the event of a dispute, then the Family Court has no basis to rule on the merits of the underlying dispute where the parties did not attend mediation.