Zickefoose v. Zickefoose

724 S.E.2d 312, 228 W. Va. 708, 2012 WL 426759, 2012 W. Va. LEXIS 323
CourtWest Virginia Supreme Court
DecidedFebruary 10, 2012
Docket11-0073
StatusPublished
Cited by11 cases

This text of 724 S.E.2d 312 (Zickefoose v. Zickefoose) 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
Zickefoose v. Zickefoose, 724 S.E.2d 312, 228 W. Va. 708, 2012 WL 426759, 2012 W. Va. LEXIS 323 (W. Va. 2012).

Opinions

KETCHUM, C.J.:

This divorce action is before this Court upon the appeal of Margaret P. Ziekefoose (“wife”) from the December 13, 2010, order of the Circuit Court of Kanawha County. The order set aside the award entered in the family court directing Joseph L. Ziekefoose (“husband”) to pay $1,000.00 per month in permanent spousal support and, instead, directed him to pay $500.00 per month in spousal support for 18 months. The wife asks this Court to reinstate the family court’s award.

The principal issue raised by the parties is one of first impression in this State. It is whether disability benefits from the Department of Veterans Affairs can be considered in determining the amount of spousal support to be paid by a former spouse upon dissolution of the marriage. Although that issue has been resolved in other jurisdictions with mixed results, an examination of those authorities demonstrates that the predominant view would include the disability benefits among the resources or recurring earnings of the payor spouse. This Court adopts that inclusionary view.

In the current action, the family court considered the husband’s military disability benefits and his other sources of income in awarding the wife permanent spousal support. The final order of the circuit court, however, failed to address with any specificity how those disability benefits were taken into account in setting aside the family court decision. The circuit court did not determine that any of the factual findings of the family court were clearly erroneous. Moreover, the circuit court failed to explain how it arrived at the $500 amount or why it should be paid by the husband for no more than 18 months. Accordingly, this Court reverses the December 13, 2010, order. We remand this action to the circuit court for further proceedings and the entry of a final order addressing with particularity the findings, conclusions and award of the family court Judge.

I.

Factual Background

The parties were married on May 1, 2004, and resided in Kanawha County. The marital home was the wife’s separate property. The wife was a music teacher, and the husband’s employment involved delivering parts for a transmission company. No children were born of the marriage. The parties lived modestly and acquired no significant assets.

[710]*710During the marriage, both parties ceased working and were adjudicated disabled. In 2007, the husband was awarded disability-benefits by the Department of Veterans Affairs for post traumatic stress disorder relating to his service in the Vietnam War. In May 2008, the husband was also awarded Social Security disability benefits. The wife had a history of psychiatric hospitalizations and, in September 2009, received a decision from the Social Security Administration finding her disabled as of December 2007 on the basis of a bipolar disorder.1

The date of the parties’ separation was disputed and was ultimately determined by the family court to be May 22, 2009. The husband was 63 years of age, and the wife was 48 years of age.

II.

Procedural Background

In July 2009, the husband filed a petition for divorce in the Family Court of Kanawha County. The wife filed a responsive pleading seeking a divorce and asking for spousal support. The parties filed financial statements, and an evidentiary hearing was conducted by the family court on January 28, 2010. Both parties were represented by counsel.

On June 3, 2010, the family court granted the parties a divorce on the ground of irreconcilable differences and confirmed the wife’s entitlement to sole ownership and possession of the marital home. Inasmuch as the parties had agreed upon the division of property and debts, only the issue of spousal support remained to be determined. In the latter regard, the family court’s order set forth findings and conclusions pursuant to W.Va. Code, 48-6-301(b) [2001]. That section provides that the following shall be considered in awarding spousal support:

(1)The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived together as husband and wife;
(3) The present employment income and other recurring earnings of each party from any source;
(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under the terms of a separation agreement or by the court under the provisions of article seven of this chapter, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance: Provided, That for the purposes of determining a spouse’s ability to pay spousal support, the court may not consider the income generated by property allocated to the payor spouse in connection with the division of marital property unless the court makes specific findings that a failure to consider income from the allocated property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) Whether each party has foregone or postponed economic, education or employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;
(11) Any financial or other contribution made by either party to the education, [711]*711training, vocational skills, career or earning capacity of the other party;
(12) The anticipated expense of obtaining the education and training described in subdivision (10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the parties and their minor children;
(15) The tax consequences to each party;
(16) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;
(17) The financial need of each party;
(18) The legal obligations of each party to support himself or herself and to support any other person;
(19) Costs and care associated with a minor or adult child's physical or mental disabilities; and
(20) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.

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Zickefoose v. Zickefoose
724 S.E.2d 312 (West Virginia Supreme Court, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
724 S.E.2d 312, 228 W. Va. 708, 2012 WL 426759, 2012 W. Va. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zickefoose-v-zickefoose-wva-2012.