Kirwan v. Kirwan

575 S.E.2d 130, 212 W. Va. 520, 2002 W. Va. LEXIS 188
CourtWest Virginia Supreme Court
DecidedNovember 7, 2002
DocketNo. 30513
StatusPublished
Cited by2 cases

This text of 575 S.E.2d 130 (Kirwan v. Kirwan) 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
Kirwan v. Kirwan, 575 S.E.2d 130, 212 W. Va. 520, 2002 W. Va. LEXIS 188 (W. Va. 2002).

Opinion

ALBRIGHT, Justice.

In this case the respondent below, Stephen M. Kirwan (hereinafter “Mr. Kirwan” or “Appellant”), appeals the October 11, 2001, child support modification order of the Circuit Court of Cabell County. Mr. Kirwan contends that the circuit court misinterpreted the provisions of West Virginia Code § 48-l-228(b)(6) (2001) (Repl.Vol.2001) by determining that the applicable period for calculating overtime compensation in the context of a child support modification proceeding is the thirty-six months preceding the filing of the petition for modification. Based upon our review of the record and briefs in this case, we affirm the circuit court’s decision.

I. Factual and Procedural Background

Stephen Kirwan and Cathy Kirwan (hereinafter “Ms. Kirwan” or “Appellee”) were divorced on June 10, 1997, by order of the Cabell County Circuit Court. They are the parents of three daughters, all of whom under the terms of the divorce order were placed in the custody of their mother. As part of this custody arrangement, Mr. Kir-wan agreed to pay child support in the amount of $750 per month, which was in excess of the child support guidelines.

When the oldest daughter reached the age of eighteen and the middle daughter chose to live with her father, Mr. Kirwan petitioned the court to modify his child support obligation based on change in circumstances.1 On July 5, 2001, the family law master2 [522]*522conducted a hearing on the petition for modification. During the hearing, the parties agreed to the applicable child support guideline factors but disagreed on the proper calculation of the overtime compensation to be included in Mr. Kirwan’s gross income: Mr. Kirwan requested that the law master only consider the amount of overtime compensation he earned prior to the couple’s separation in 1996; Ms. Kirwan requested that all overtime compensation earned by Mr. Kir-wan in the thirty-six-month period preceding the filing of the petition for modification be considered.3 The family law master followed neither suggestion but instead computed the overtime Mr. Kirwan worked during the thirty-six-month period prior to the couple’s separation to arrive at the monthly overtime average of 54.86 hours. Factoring this overtime average into the support formula, the law master arrived at the recommendation that Mr. Kirwan’s modified child support obligation be $390.49. Ms. Kirwan filed an exception to this recommendation with the circuit court.

By order entered October 11, 2001, the circuit court affirmed all conclusions and recommendations of the law master but for the overtime issue. With regard to overtime, the circuit court essentially found that Mr. Kir-wan had established a pattern of working overtime during the marriage and that this practice continued, albeit at an increased rate, after the marriage was dissolved. Upon this basis and according to the terms of the statute defining gross income for child support purposes, the circuit court concluded that “the Family Law Master should have included in her calculations of gross income the amount of overtime worked by Respondent during the thirty-six hours [sic] preceding the petition for modification^]” Subsequently, the case was remanded to the law master, who recalculated the amount of child support in accordance with the circuit court’s order.4 Thereafter, Mr. Kirwan filed this appeal.

II. Standard of Review

The matter presented for our determination in this case concerns a question of statutory construction, for which our review is plenary. This is in keeping with our holding in syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995): “Where 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.” Id. at 139, 459 S.E.2d at 416. With this standard in mind, we proceed with our examination of the issue raised.

III. Discussion

At the heart of the issue presented in this case is the language of West Virginia Code § 48-1-228 (2001) (Repl.Vol.2001),5 which states in pertinent part:

(a) “Gross income” means all earned and unearned income.... When determining whether an income source should be included in the child support calculation, the court shall consider the income source if it would have been available to pay child-rearing expenses had the family remained intact....
(b) “Gross income” includes, but is not limited to, the following:
(6) An amount equal to fifty percent of the average compensation paid for person[523]*523al services as overtime compensation during the preceding thirty-six months: Provided, That overtime compensation may be excluded from gross income if the parent with the overtime income demonstrates to the court that the overtime work is voluntarily performed and that he or she did not have a previous pattern of working overtime hours prior to separation or the birth of a nonmarital child.

In essence, Appellant’s argument is that the lower court’s reading of West Virginia Code § 48 — 1—228(b)(6) failed to give effect to the proviso. According to Appellant’s argument, the terms of this proviso preclude consideration of any overtime compensation other than the pattern established prior to separation. In support of this construction of the statutory language, Mr. Kirwan cites Cogar v. Faerber, 179 W.Va. 600, 371 S.E.2d 321 (1988), in which we said in syllabus point four that “ ‘[i]n ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.’ Syl. Pt. 1, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).”

In response to this argument, Appellee maintains that the circuit court correctly determined that the statute in question need not be construed. Appellee further contends that the plain and literal meaning of the statutory provision in question is that the pattern of overtime worked before parties separate only serves as the basis for including overtime compensation in gross income and does not permanently fix the amount of overtime compensation to a pre-divorce earnings pattern. Appellee asserts that any other reading of the statute would be in derogation of West Virginia Code § 48-13-102 (2001) (Repl.Vol.2001) in which the Legislature clearly states that public policy dictates that children share in the standard of living of them parents regardless of the marital status of the parents.6

It is well-established that “[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Accord Syl. Pt. 2, State v. Elder, 152 W.Va. 571,

Related

Worley v. Beckley Mechanical, Inc.
648 S.E.2d 620 (West Virginia Supreme Court, 2007)

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Bluebook (online)
575 S.E.2d 130, 212 W. Va. 520, 2002 W. Va. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirwan-v-kirwan-wva-2002.