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Edwin K. v. Bonnie W.

Supreme Court of West Virginia

April 18, 2017

EDWIN K., Respondent Below, Petitioner
v.
BONNIE W., and BUREAU FOR CHILD SUPPORT ENFORCEMENT, Petitioners Below, Respondents

          Submitted: February 14, 2017

         Appeal from the Circuit Court of Gilmer County The Honorable Jack Alsop, Judge Civil Action No. 06-D-70

          Daniel R. Grindo, Esq. Law Office of Daniel R. Grindo, PLLC Gassaway, West Virginia Counsel for the Petitioner.

          Dee-Ann Burdette, Esq. West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement Charleston, West Virginia Counsel for the Respondent.

         SYLLABUS BY THE COURT

         1. "In reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of the law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         2. "Attributed income means income not actually earned by a parent, but which may be attributed to the parent because he or she is unemployed, is not working full time, is working below full earning capacity, or has non-performing or under-performing assets. [ W.Va. Code 48-1-205(a) (2008)]. Attributed income consists of moneys which a support obligor should have earned had he or she diligently pursued reasonable employment opportunities, or reasonably utilized, applied or invested his or her assets." Syllabus Point 4, Porter v. Bego, 200 W.Va. 168, 488 S.E.2d 443 (1997).

          WALKER, Justice.

         Petitioner Edwin K.[1] appeals the November 2, 2015 order of the Circuit Court of Gilmer County affirming the September 17, 2015 order of the Family Court of Gilmer County making an upward modification of his child support obligations by attributing income based on his prior employment. The West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement ("BCSE") filed a response on behalf of the mother, Bonnie W. Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm the upward modification of Petitioner's child support obligation.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The parties were never married but have one child together, who was born on April 27, 2005. By order entered by the family court in October 2007, Petitioner was required to pay Respondent $147.40 per month in child support. Prior to the entry of that order, Petitioner had voluntarily left his employment with an income of $62, 000 per year to become self-employed. Although the family court at the time noted that it could have imposed upon Petitioner an obligation based upon the $62, 000 per-year salary, the family court did not do so and instead attributed an income to Petitioner in the amount of the then-current federal minimum wage. At some point after the entry of the October 2007 child support order, [2] Petitioner began employment with an entity identified as Union Drilling, which was subsequently acquired by an entity identified as Sidewinder. The undisputed evidence is that Petitioner's income from Union Drilling/Sidewinder was $86, 514 in 2014. Petitioner testified that he left his job with Union Drilling/Sidewinder at the end of 2014 or early 2015 because of lack of work or because he would be required to perform difficult work.[3] In January 2015, Petitioner testified that he became employed with Blue Dot, a pressure testing company. Petitioner stated that he subsequently left his employment with Blue Dot in April 2015 because he "was going to get laid off anyway" and his parents needed help remodeling their home for handicapped needs. Petitioner also contends he left employment with Blue Dot to pursue self-employment as a plumber because he was presented with an opportunity to grow his plumbing business, which had been in existence since the late 1990s. For the period of January to April 2015, Petitioner had income of $15, 948.99.

         In June 2015, BCSE filed the underlying petition on behalf of Bonnie W. seeking upward modification of Petitioner's child support obligation due to his significant change in income subsequent to the October 2007 initial child support order. Petitioner did not provide any financial disclosures for past or present income. At a September 2, 2015 hearing, Petitioner testified that his then-current income from his self-employment, in combination with all other sources of income was around $500 per month, which is less than the full-time minimum wage. BCSE argued that the Petitioner's child support obligation should not be based on the federal minimum wage or actual earnings, but his income in 2015 before he voluntarily left employment. Both parties testified relating to income and expenses, and Petitioner was heard on the circumstances surrounding his departure from employment from Blue Dot and his pursuit of self-employment. On September 17, 2015, the family court granted the upward modification, attributed to Petitioner an income of $5, 316.33 per month, and ordered him to pay child support in the amount of $580.64 per month effective August 1, 2015.

         Petitioner appealed the family court's order to the Circuit Court of Gilmer County, arguing that the family court had not made the necessary findings of fact and conclusions of law necessary to attribute prior income. The circuit court refused the appeal and noted that although the family court did not use the precise language of the statute in its findings, the factual findings were sufficient to attribute prior income and it was well within the purview and authority of the family court to do so. It is from this order that Petitioner appeals.

         II. ...


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