403 S.E.2d 761 (W. Va. 1991)
After seventeen years of marriage, Mary Nelle Wood and Craig Herbert Wood, Jr. separated on March 1, 1988.1 They had three children born in 1976, 1982, and 1984.2 During the marriage, Mrs. Wood initially taught school but became a full-time homemaker after the birth of their first child, while Mr. Wood continued his employment with Weirton Steel.3 The parties divorced on August 30, 1989, on the grounds of irreconcilable differences, with the order later amended on March 23, 1990.4
During the marriage, Mrs. Wood inherited money from her mother and received gifts of stock from her grandfather, including stock in the Suburban Savings and Loan Association and other stock titled in her maiden name.5 In 1980, approximately $40,000 of her inheritance was used as the downpayment on the jointly titled marital house.6 In 1985, Mrs. Wood placed the proceeds from the sale of the Suburban stock, about $29,000, in a jointly titled Treasury bill.7
In 1987, the stock proceeds were divided between the parties.8 Mr. Wood removed about $21,000 from their joint savings account, which he claimed was his share as a gift, and placed it in his separate account at the Tin Mill Credit Union, while Mrs. Wood placed her half in a separate account.9 The only separate asset of Mr. Wood noted in the record is his account with the Tin Mill Credit Union.10
The Circuit Court of Hancock County awarded Mrs. Wood custody of the children, ordered Mr. Wood to pay $720 per month in child support and $500 per month in rehabilitative alimony for three years, distributed marital property unequally favoring Mrs. Wood by about $17,000, and required Mr. Wood to pay part of Mrs. Wood’s attorneys’ fees and expenses.11 Both parties appealed the final order to the Supreme Court of Appeals of West Virginia.12
Whether the circuit court failed to award child support in accordance with the child support guidelines?13
The child support guidelines must be considered in every case concerning child support.14 W. Va. Code § 48A-2-8(e) (1989) states that the child support guidelines shall have application to cases of divorce, paternity, actions for support, and modifications thereof.15 There is a rebuttable presumption that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded.16 A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case.17 Family law masters and circuit court judges must include as part of the record the worksheets reflecting the actual calculations which result from the application of the child support guidelines to the facts of a particular case. This facilitates appellate review.18
Yes. The circuit court, without reference to the child support guidelines, awarded $720 per month in child support.19 The circuit court noted that the child support award, together with the rehabilitative alimony, was in an amount sufficient for the family to exist until such time as the assets were liquidated.20 Mrs. Wood requested a monthly child support of $1,152 based on the child support guidelines using a $2,928 net monthly income for Mr. Wood.21
Mr. Wood proposed to pay $519 per month based on a $2,434 net monthly income.22 The child support awarded is substantially less than the amount required by the child support guidelines.23 On remand, the circuit court should use the child support guidelines found in 6 W. Va. Code of State Rules §§ 78-16-1 to 78-16-20 (1988) to determine the amount of support and include, as part of the record, worksheets reflecting the actual calculations which result from the application of the child support guidelines.24
The circuit court failed to award child support in accordance with the child support guidelines.25
Whether the circuit court failed to classify and evaluate the stock proceeds and other assets properly?26
Equitable distribution under W. Va. Code, 48-2-1, et seq., is a three-step process.27 The first step is to classify the parties’ property as marital or nonmarital.28 The second step is to value the marital assets.29 The third step is to divide the marital estate between the parties in accordance with the principles contained in W. Va. Code, 48-2-32.30 W. Va. Code, 48-2-1(e)(1) (1986), defining all property acquired during the marriage as marital property except for limited categories of property which are considered separate or nonmarital, expresses a marked preference for characterizing the property of the parties to a divorce action as marital property.31 Usually, jointly titled property will be classified as marital property because jointly titled property enjoys a presumption that the transferring spouse intended to make a gift of the property to the marital estate.32 The source of funds doctrine is ordinarily not available to characterize as separate property that property which has been transferred to joint title during the marriage.33 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 the purposes of equitable distribution.34 The presumption may be overcome by a showing that the transferring spouse did not intend to transfer the property to joint ownership or was induced to do so by fraud, coercion, duress, or deception.35
Yes. The circuit court’s order does not identify the separate property of the parties except for Mr. Wood’s half of the stock proceeds.36 The record indicates that in addition to the property classified by the circuit court as marital, Mrs. Wood owned, at least, some stock titled in her maiden name, some property held in trust for the children’s education and a bank account containing at least her half of the Suburban stock proceeds.37 Mr. Wood owned, at least, his account with the Tin Mill Credit Union.38
Given that Mrs. Wood’s inheritance had been placed in jointly titled investments before being used as the downpayment on the jointly titled marital house, the circuit court’s classification of the marital house as marital property was justified.39 However, Mrs. Wood’s deposit of the stock proceeds in a jointly titled Treasury bill gives rise to a rebuttable presumption of a gift to the marital estate and not a gift to Mr. Wood.40 The subsequent deposit of the stock proceeds into separately titled bank accounts does not change the property’s classification.41 On remand, absent a showing pursuant to the foregoing discussion to overcome the presumption, the circuit court should classify the stock proceeds as marital property subject to equitable distribution.42
The circuit court did not abuse its discretion in valuing Mr. Wood’s pension at $8,500 or the family silver at $5,000 given the conflicting evidence presented by the parties.43
The circuit court failed to classify the stock proceeds and other assets properly but did not err in its evaluations.44
Related opinions on this issue
The injustice of today’s holding is required by the majority’s opinion in Whiting v. Whiting.45 Mrs. Wood, a dutiful wife and mother for over seventeen years, was rejected by her husband for a younger woman and a new family.46 Not satisfied with leaving his first family of three children, ages 11, 5 and 3, Mr. Wood even used the money Mrs. Wood received as a gift from her grandfather to set up his new life.47
Following Whiting’s flawed rationale and statutory interpretation, the majority transforms Mrs. Wood’s inheritance from her mother and a gift from her grandfather into unconditional gifts in which Mr. Wood has an equal share.48 Although I agree that the marital home became marital property, subject to unequal distribution because of Mrs. Wood’s contribution of $40,000, the gift of about $30,000 from Mrs. Wood’s grandfather should remain Mrs. Wood’s separate property.49 Mr. Wood’s physical and monetary intimidation of Mrs. Wood should not be rewarded with any part of her grandfather’s gift.50
Because the majority’s holding, based on Whiting, unjustly furthers the impoverishment of Mrs. Wood and her children, I dissent from Part II.51
Whether the circuit court erred in ordering an unequal distribution of marital property?52
W. Va. Code, 48-2-32 (1984), provides that, absent a valid agreement, the trial court shall presume that all marital property is to be divided equally.53 However, W. Va. Code, 48-2-32 (1984), then permits the equal division to be altered upon the consideration of several factors, one of which is acquisition of marital property through funds which are separate property.54 In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of statutorily enumerated factors, including monetary contributions to marital property such as employment income, other earnings, and funds which were separate property.55 An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors.56 In any order which divides or transfers the title to any property, determines the ownership or value of any property, designates the specific property to which any party is entitled, or grants any monetary award, the court shall set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted.57
No. The circuit court awarded about $78,000 in marital assets to Mr. Wood and about $95,000 in marital assets to Mrs. Wood, thereby favoring Mrs. Wood by about $17,000.5859 The circuit court said that the unequal distribution was based upon the history of the marriage, and the separate assets of the Plaintiff which were used to purchase the marital home, said assets totaling well over Fifty Thousand Dollars.60 The first reason, the history of the marriage, is too vague to rebut the statutory presumption in favor of equal division.61 The second reason, the use of Mrs. Wood’s inheritance as a downpayment on the house, is one of the factors enumerated in W. Va. Code, 48-2-32(c) (1984), and does rebut the presumption in favor of equal division of property.62 Mr. Wood’s earnings argument fails to credit Mrs. Wood’s equally substantial, although non-monetary, contribution in child care and homemaker services.63 The record indicates that the parties agreed that Mrs. Wood should forego employment in order to provide these services.64
The circuit court did not abuse its discretion in awarding Mrs. Wood about $17,000 more in marital property. The court’s unequal distribution of marital property was the result of a rational application of the statute to the facts on the record. The court’s reasoning was reflected in the order.65
The circuit court did not err in ordering an unequal distribution of marital property.66
Whether the circuit court abused its discretion in requiring Mr. Wood to pay a portion of Mrs. Wood’s attorneys’ fees?67
W. Va. Code, 48-2-13(a)(4) (1986), states that the court may compel either party to pay attorney’s fees and court costs reasonably necessary to prosecute or defend the action in the trial court.68 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 incurred during the course of the litigation.69 The circuit court has considerable discretion in its award of attorneys’ fees; however, the circuit court must determine the reasonableness of the attorneys’ fees based on broad factors which include the time and labor involved, the difficulty of the questions presented, and the customary fee.70 Where attorney’s fees are sought against a third party, the test of what should be considered a reasonable fee is determined not solely by the fee arrangement between the attorney and his client.71 The reasonableness of attorney’s fees is generally based on broader factors such as the time and labor required, the novelty and difficulty of the questions, the skill requisite to perform the legal service properly, the preclusion of other employment by the attorney due to acceptance of the case, the customary fee, whether the fee is fixed or contingent, time limitations imposed by the client or the circumstances, the amount involved and results obtained, the experience, reputation, and ability of the attorneys, the undesirability of the case, the nature and length of the professional relationship with the client, and awards in similar cases.72 In determining fee awards, the court should look to the income of the spouses at the time of the final decree.73
No. The circuit court required Mr. Wood to pay the following attorneys’ fees: his own attorney’s fee of $3,713, Mrs. Wood’s first attorney’s fee of $2,079.25 for representation through the pretrial conference, and two/thirds of Mrs. Wood’s second attorney’s fee of $9,633.25 for representation through the final hearing.7475 Mrs. Wood also seeks about $5,000 in attorney’s fees and costs in connection with her appeal.76 The circuit court in awarding Mrs. Wood part of her attorneys’ fees noted that the fees were reasonable based on the attorneys’ valuable services, the time and labor involved in the preparation and trial, the difficulty of the litigated questions, the ability and experience of the attorneys, and the customary fees for divorce representation.77 Mrs. Wood is not working, and Mr. Wood earns a substantial income.78
Moreover, Mrs. Wood has prevailed on her appeal concerning child support, and her attorney is entitled to fees and costs for appellate work.79 The circuit court was correct in awarding part of Mrs. Wood’s attorneys’ fees and costs and on remand, should award Mrs. Wood the reasonable attorney’s fees and costs necessitated by her appeal.80
The circuit court did not abuse its discretion in requiring Mr. Wood to pay a portion of Mrs. Wood’s attorneys’ fees.81