Pearson v. Pearson

488 S.E.2d 414, 200 W. Va. 139
CourtWest Virginia Supreme Court
DecidedJuly 21, 1997
Docket23679
StatusPublished
Cited by41 cases

This text of 488 S.E.2d 414 (Pearson v. Pearson) 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
Pearson v. Pearson, 488 S.E.2d 414, 200 W. Va. 139 (W. Va. 1997).

Opinions

DAVIS, Justice:

This appeal arises from an order of the Circuit Court of Logan County which granted a divorce to Karen Pearson, plaintiff/appellant, (hereinafter referred to as plaintiff) and Roger Pearson, defendant/appellee, (hereinafter referred to as defendant). On appeal the plaintiff alleges that the circuit court committed error with respect to the following: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney’s fees; and (7) awarding defendant a Nissan Maxima, goods and furnishings, and the marital home.

[143]*143I.

FACTUAL BACKGROUND

The parties were married on September 25, 1969. Two children, now adults, were bom from the marriage. The record indicates that the plaintiff did not work outside the home during the marriage. Plaintiff was a full-time homemaker. The defendant was employed throughout the marriage as a railroad employee with CSX Transportation.

The first significant problem between the parties occurred in 1987. In 1987, plaintiff suffered facial injuries as a result of a domestic fight with the defendant. The parties separated temporarily after this incident.

The record does not disclose any problems in the marriage after the 1987 incident, until the plaintiff filed for divorce in May of 1993. As grounds for divorce the complaint alleged cruel treatment, alcoholism and irreconcilable differences. The defendant filed a counterclaim seeking a divorce on the grounds of cruelty and irreconcilable differences.

The family law master held evidentiary hearings in this matter on October 12, 1994 and November 16, 1994. A recommended decision, that included granting a divorce on grounds of irreconcilable differences, was filed by the family law master on April 14, 1995. The plaintiff petitioned for review of the recommended order. The circuit court issued a final order on March 28,1996, which adopted all of the family law master’s recommendations except one. The circuit court found that the family law master abused her discretion in awarding the sum of $150 per month as alimony to plaintiff. The circuit court increased alimony to $375 a month. The plaintiff thereafter prosecuted this appeal. The plaintiff has assigned as error: (1) the amount of permanent alimony; (2) the denial of lump sum or enhancement award; (3) the termination of alimony when defendant reaches 65; (4) the issuance of a restraining order; (5) awarding defendant a credit union account; (6) the failure to award attorney’s fees; and (7) the award to defendant of the Nissan Maxima, goods and furnishings, and the marital home.

II.

STANDARD OF REVIEW

We begin our analysis by setting out the standard in which this Court reviews challenges to an equitable distribution order of a circuit court. We outlined that standard succinctly in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):

In reviewing challenges to findings made by a family law master that also were 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 and statutory interpretations are subject to a de novo review.

See also Syl. Pt. 2, Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451 (1995). It was noted by this Court in syllabus point 1 of Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995) that “[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.” We explained in syllabus point 3 of Stephen L.H., that “[u]n-der 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.”

With the above principles in view we now turn seriatim to plaintiffs assignments of error.

A.

Sufficiency Of Alimony Amount

The plaintiff contends that her award of $375 per month as alimony is insufficient to maintain the style of living to which she was accustomed during her marriage. Factors which a circuit court must consider in determining the issue of alimony are set out [144]*144in W.Va.Code § 48-2-16(b) (1984).1 This Court noted in syllabus point 1, in part, of Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898 (1974), modified, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978) that “no specific weight is assigned to any one criterion, and the trial judge in his sound discretion may accord such weight to any or all of these criteria as he deems appropriate.” We have also long held that “[t]he decision to grant or deny alimony is reviewed by this Court for an abuse of discretion.” Banker v. Banker, 196 W.Va. 535, 548, 474 S.E.2d 465, 478 (1996). In the single syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977) we held that:

Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.

See Syl. Pt. 2, Wood v. Wood (II), 190 W.Va. 445, 438 S.E.2d 788 (1993); Syl. Pt. 8, Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990); Syl., Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985).

In Banker we gave the following explanation of the three principal ways in which an abuse of discretion might arise:

An abuse of discretion occurs in three principal ways:
(1) when a relevant factor that should have been given significant weight is not considered; (2) when all proper factors, and no improper ones, are considered, but the family law master in weighing those factors commits a clear error of judgment; and (3) when the family law master fails to exercise any discretion at all in issuing the order.

Banker, 196 W.Va. at 548, 474 S.E.2d at 478.

In the instant proceeding, the family law master recommended alimony for the plaintiff as follows: (1) rehabilitative alimony in the amount of $500 per month for thirty months, which totaled $15,000; and (2) permanent alimony of $150 per month until plaintiff remarries, either party dies, the defendant attains the age of sixty-five, or further order of the court. The circuit court adopted the alimony recommendation except for the amount of permanent alimony.

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Bluebook (online)
488 S.E.2d 414, 200 W. Va. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearson-v-pearson-wva-1997.