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Gladys J. v. Ronnie J.

Supreme Court of West Virginia

February 15, 2019

Gladys J., Respondent Below, Petitioner
v.
Ronnie J., Petitioner Below, Respondent

          Cabell County 12-D-598

          MEMORANDUM DECISION

         Petitioner Gladys J., by counsel Steven T. Cook, appeals the Circuit Court of Cabell County's January 18, 2018, order affirming the family court's August 7, 2017, order in this divorce action.[1] Respondent Ronnie J., by counsel John A. Proctor, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the family court erred in changing her permanent alimony award to a rehabilitative alimony award, in awarding only $8, 000 in attorney's fees, in calculating the alimony award, and in failing to address premium fault alimony.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         The parties married on September 12, 1987.[2] In May of 2008, they separated, but respondent did not formally initiate divorce proceedings until June of 2012. The parties were granted a divorce based upon irreconcilable differences by order entered on April 15, 2014.

         Thereafter, petitioner filed an appeal with this Court raising eighteen assignments of error. See Gladys J. v. Ronnie J., No. 15-0191, 2016 WL 3165981 (W.Va. June 3, 2016)(memorandum decision) ("Gladys J. I"). For reasons identified in that decision, we summarily affirmed all but the following four assignments of error:

1) whether the circuit court erred in affirming the family court's determination that the wife was entitled to only $500 per month permanent spousal support; 2) whether the circuit court erred in affirming the family court's award of child support that was not based upon the husband's gross income at the time of the final hearing; 3) whether the circuit court erred in affirming the family court's award of the dependent children exemptions to the husband; and 4) whether the circuit court erred in affirming the family court's determination that the husband pay the wife's attorney's fees and costs in the amount of only $3, 000.

Id. at *1.

         With respect to the permanent spousal support award, we found that the family court failed to undertake a "real discussion concerning the husband's fault or comparison of the husband's fault with the wife's fault for purposes of determining an appropriate spousal support award." Id. at *4; see also W.Va. Code § 48-8-104.[3] We also found that the family court only paid "lip-service" to the factors set forth in West Virginia Code § 48-6-301, which are required to be considered in determining the amount of spousal support.[4] In sum, we found that "[t]he family court failed to properly consider all the statutory factors, failed to consider the husband's earnings of $145, 250 per year, with the wife having no attributable income, and failed to consider the husband's fault." Gladys J. I. at *5. Accordingly, we found that "the family court erred in its award of permanent spousal support . . . in the amount of $500[, ]" reversed the permanent spousal support award, and remanded the matter for further consideration. Id.

         In addressing petitioner's assignment of error regarding the attorney's fees award, we found that the family court "failed to articulate any reasoning regarding the award." Id. at *6. This failure made it "impossible to ascertain from the order how the family court arrived at the amount of $3, 000. . . ." Id. Consequently, we found that the family court abused its discretion in awarding attorney's fees, reversed the award, and remanded the matter for further proceedings, including an analysis of the factors set forth in Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).[5]

         On August 7, 2017, the family court entered its final order setting forth its rulings on the issues we directed be addressed on remand. The family court addressed all of the factors enumerated in West Virginia Code § 48-6-301 and considered and compared the fault or misconduct of the parties in contributing to the deterioration of the marriage, as required by West Virginia Code § 48-8-104. After conducting its analysis, the family court awarded petitioner rehabilitative alimony in the amount of $2, 700 per month for seven years.[6]

         The family court also addressed the factors we outlined in Banker to be considered in awarding attorney's fees in divorce actions.[7] Following that analysis, the family court directed that respondent pay $8, 000 to petitioner for her attorney's fees and costs.

         Petitioner appealed the August 7, 2017, family court order to the circuit court. She argued that the family court erred in changing her permanent alimony award to a rehabilitative alimony award, in awarding only $8, 000 in attorney's fees, in failing to adopt her proposed findings regarding the alimony factors enumerated in West Virginia Code § 48-6-301, and in failing to address premium fault alimony. By order entered on January 18, 2018, the circuit court denied petitioner's appeal and affirmed the family court's order. It is from this order that petitioner appeals.

         On appeal to this Court, petitioner asserts the same assignments of error she raised before the circuit court. In reviewing the circuit court's order, we apply the following standard:

In reviewing a final order entered by a circuit court 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 circuit court judge under the clearly erroneous standard, and the application of law to the facts under an ...

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