Bosworth v. Bosworth

483 S.E.2d 861, 199 W. Va. 278, 1997 W. Va. LEXIS 33
CourtWest Virginia Supreme Court
DecidedMarch 14, 1997
DocketNo. 23792
StatusPublished
Cited by1 cases

This text of 483 S.E.2d 861 (Bosworth v. Bosworth) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bosworth v. Bosworth, 483 S.E.2d 861, 199 W. Va. 278, 1997 W. Va. LEXIS 33 (W. Va. 1997).

Opinion

PER CURIAM:

This action is before this Court upon an appeal from the final order of the Circuit Court of Wood County, West Virginia, entered on September 12, 1995. Pursuant to that order, the circuit court overturned the recommendation of the family law master that the appellant, Patricia Carol Bosworth, pay rehabilitative alimony to the appellee, Charles M. Bosworth, for a period of twelve months following the parties’ divorce. As the final order reflects, the circuit court granted the divorce but, instead, directed the appellant to pay permanent alimony to the appellee.

This Court has before it the petition for appeal, all matters of record and the briefs of counsel. As discussed below, this Court is of the opinion that the circuit court failed to articulate sufficient reasons for not following the family law master’s recommendation concerning alimony. Accordingly, the final order is reversed, and this action is remanded to the circuit court for the entry of an order adopting the family law master’s recommendation.

I

The parties were married in April 1983, and one child, a son, was born of the marriage. As indicated by the family law master, the child has a learning disability which has resulted in a variety of special needs with regard to his care and education. It should be noted, however, that no issues concerning the custody of the child, which has consistently remained with the appellant, or the amount of child support payable by the ap-pellee, have been raised in this appeal.

The parties separated in May 1994, and this action was instituted in the circuit court upon the ground of irreconcilable differences. W. Va.Code, 48-2-4(a)(10) [1981]. Thereafter, on February 8, 1995, an evidentiary hearing was conducted by the family law master, resulting in a recommended order of the family law master dated June 29, 1995.

As reflected in the recommended order, the family law master found, inter alia, that the parties were married on April 15, 1983, had separated in May of 1994 and had agreed that the appellant would have custody of their son. With regard to the latter finding, the family law master determined that the appellee should pay $208.26 per month for child support and, in addition, provide medi[280]*280cal insurance coverage for the child. The family law master also found that the parties had completed an equitable distribution of the marital property.

With regard to the question of alimony, the family law master found that the appellant was 43 years old, possessed, a Master of Arts degree and was employed as a licensed counselor. The appellee, on the other hand, was found to be 44 years old and a high school graduate with approximately two years of college credits. Significantly, as the family law master’s recommended order and the record indicate, the appellee was employed throughout the marriage. Specifically, the appellee worked for Heck’s Department Store until December 1990. His subsequent employers included Big Bear, Superior Toyota and Wal-Mart. The family law master considered the monthly expenses of both parties and noted that the appellant had an annual income of approximately $30,700 and that the appellee had an annual income of approximately $14,600. Both parties were found to be in good health.

Based upon the above findings of fact, and upon the statutory considerations with regard to alimony set forth in W. Va.Code, 48-2 — 16(b) [1984],1 the family law master recommended that the appellee be awarded rehabilitative alimony. In particular, the family law master recommended that the appellant pay the appellee $500 per month, “[c]o'm-mencing on the first day of the first month following the entry of an Order divorcing the parties and continuing ... thereafter for a term and period of twelve months [.]”

The appellee challenged the recommended order, however, asserting that he was entitled to permanent, rather than rehabilitative, alimony. The circuit court agreed and in a letter dated August 4, 1995, indicated that there was no finding in the recommended order “which would properly allow the law master to conclude that the alimony award should be limited to any specific time or as to purpose.” That letter was followed by the entry of the final order of September 12, 1995, which stated:

Commencing on the 1st day of the first month following the entry of this Order divorcing the parties and continuing on the 1st day of each month thereafter during the joint lives of the parties or until such time as the [appellee] dies or remarries, the [appellant] shall pay to the [appellee] as permanent alimony the sum of Five Hundred and 00/000 ($500.00) Dollars per month.

[281]*281Importantly, other than the above statement concerning alimony contained in the letter of August 4, 1995, the circuit court expressed no reasons for not following the recommended order of the family law master. In particular, the final order of the circuit court did not set forth any findings or conclusions as to why the alimony should be permanent, rather than rehabilitative. In all other respects, the recommendations of the family law master, concerning custody, child support, etc., were adopted.

II

This Court has often observed that a recommended order of a family law master is reviewable by a circuit court pursuant to statute, W. Va.Code, 48A-4-16 [1993], W.Va. Code, 48A-4-20 [1996], and pursuant to this Court’s Rules of Practice and Procedure for Family Law. As we stated in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995): “A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard.” See also syl. pt. 1, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996). With regard to findings of fact, this Court noted in syllabus point 3 of Stephen L.H.: “Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences.” See also Alireza D. v. Kim Elaine W., 198 W.Va. 178, 479 S.E.2d 688 (1996). Of course, the final order of a circuit court in such eases is reviewable by this Court. Magaha v. Magaha, 196 W.Va. 187, 190, 469 S.E.2d 123, 126 (1996); Hinerman v. Hinerman, 194 W.Va. 256, 259, 460 S.E.2d 71, 74 (1995); Marilyn H. v. Roger Lee H., 193 W.Va. 201, 204, 455 S.E.2d 570, 573 (1995).

Specifically, the ability of a circuit court to overturn the recommendations of a family law master is limited by statute. As stated in W. Va.Code, 48A-4-20(c) [1993]:

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Bluebook (online)
483 S.E.2d 861, 199 W. Va. 278, 1997 W. Va. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bosworth-v-bosworth-wva-1997.