Clay v. Clay

526 S.E.2d 530, 206 W. Va. 564, 1999 W. Va. LEXIS 186
CourtWest Virginia Supreme Court
DecidedDecember 10, 1999
DocketNo. 26209
StatusPublished
Cited by4 cases

This text of 526 S.E.2d 530 (Clay v. Clay) 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
Clay v. Clay, 526 S.E.2d 530, 206 W. Va. 564, 1999 W. Va. LEXIS 186 (W. Va. 1999).

Opinion

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Marion County entered on November 17, 1998, ordering the appellant, P. Lee Clay, to pay arrearages in child support and alimony, including interest, totaling $73,441.98 to the appellee, Selina Rose Clay. In this appeal, the appellant contends that the circuit court erred in calculating the arrearages in child support and alimony. We agree, and for the reasons set forth below, reverse the final order of the circuit court.

I.

The parties were married on November 18, 1978. They have three children: Percy born on August 3, 1980; James born on February 7, 1982; and Adam born on June 13, 1983. In April 1986, the appellant filed a complaint for divorce. On February 3, 1987, a temporary order was entered granting custody of the children to the appellee and ordering the appellant to pay $400.00 per month in child support. The appellant was also ordered to pay the appellee $200 a month as alimony unless she chose to live in the, marital home.

A divorce was granted on December 9, 1987. The issues of custody, child support, alimony, and property settlement remained pending, and the appellee continued to have custody of the children. In November 1989, based on the appellant’s allegations that-the children were being abused and neglected by the appellee and an investigation by the Child Advocate’s Office, the appellant was granted temporary custody of the children. The family was ordered to undergo psychiatric evaluations and a hearing for a custody determination was scheduled for January 1990. Thereafter,- the- custody hearing was postponed because ' the psychiatric evaluations had not been completed. .

The children continued to live with their father in Virginia for the next eight years. During this period of time, both parties remarried. In August 1997, a hearing was scheduled regarding custody of the children. Upon the filing of a request for a continuance by the appellant, the family law master granted temporary custody of the children to -the .appellee.1 The hearing was rescheduled for October 31,1997.

After receiving notice that the appellee had been granted custody of the children, the appellant filed a motion for recusal of the family law master and a petition for a writ of prohibition. The motion and writ were both denied by the circuit court. On December 19, 1997, the family law master entered an order granting custody of the children to the appellee and visitation to the appellant. She noted that both parties were fit parents, but that the children stated that they wished to live with their'mother. She also indicated that the two ybunger children did not wish to visit their father. The family law master scheduled a hearing regarding child support and alimony arrearages. Finally, she ordered the appellant to pay two-thirds of the appellee’s attorney fees which totaled $4,000.00. In a subsequent order entered on November 17, 1998, the appellant was ordered to pay $73,441.98 for past due child support and alimony. This appeal followed.

II.

In Syllabus Point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), this Court stated that:

In reviewing- challenges to findings made by a family law master that were also adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law [567]*567and statutory interpretations are subject to a de novo review.

With this standard of review in mind, we will now address the issues in this case.

As we begin our analysis, we feel compelled to comment on the fact that this case has lingered in our court system for more than ten years. Although the parties were divorced in 1987, the issues of custody, child support, alimony, and property settlement remained pending until 1998. Instead of resolving any of these matters, a series of pendente lite orders and continuances were granted over the course of ten years. After a thorough examination of these orders and other documents in this case, we find that the circuit court has erred by ordering the appellant to pay $73,441.98 in arrearages for child support and alimony.

We will first consider the issue of alimony. After the appellant filed the complaint for divorce in 1986, a temporary order was entered granting the appellee the right to live in the marital home. In the event that the appellee chose not to live in the marital home, the appellant was ordered to pay her $200 per month as alimony.2 On December 9,1987, the parties were granted a divorce. The divorce order provided that “[a]ll other issues in controversy between the parties, including but not limited to custody, support, alimony and property settlement, remain pending before the Court.”

Subsequently, a pendente lite order was entered on August 16,1989. This oi’der indicated that the appellant had filed a petition seeking modification of custody and that a referral to the Child Advocate for investigation regarding the custody question had been made. The order also stated that “[i]t is further ordered that, until the further order of the Court, the provisions of prior orders be continued in force until such time as the same may be changed by subsequent order.”

After reviewing these orders and the rest of the record, we do not believe that the appellee was entitled to alimony following the divorce. There was never a final order entered in this regard. Although a pendente lite or temporary order granting $200 per month in alimony was entered prior to the divorce, there was never a permanent award of alimony made at the time of the divorce or thereafter. As we have previously noted, “West Virginia Code, 48-2-13, indicates that the purpose of temporary or pendente lite alimony is to provide for the maintenance of the recipient party during the pendency of the divorce proceedings.” Sellitti v. Sellitti 192 W.Va. 546, 549, 453 S.E.2d 380, 383 (1994) (citation omitted). In fact, “[n]o order granting temporary relief may be the subject of an appeal or a petition for review.” W.Va. Code § 48-2-13(g). In this case, the only order entered with regard to alimony was the temporary order entered on February 3, 1987. It would be unconscionable to hold the appellant to an order he could never appeal. Although legal terms are elastic and can be stretched, the word “temporary” can not be stretched to ten years. Because no order was ever entered awarding alimony following the divorce, the appellee is not entitled to alimony following the December 9, 1987 divorce order.

Although the appellee was not granted alimony after the divorce, she was entitled to alimony during the pendency of the divorce as set forth in the February 3, 1987 order. The record indicates that the appellant did not make any temporary alimony payments while the divorce was pending. In Syllabus Point 1 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496

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Bluebook (online)
526 S.E.2d 530, 206 W. Va. 564, 1999 W. Va. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-clay-wva-1999.