Taylor v. Taylor
Annotate this Case
January 1993 Term
__________
No. 21374
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LISA D. TAYLOR,
Petitioner Below, Appellant,
v.
RICHARD TAYLOR,
Respondent Below, Appellee
______________________________________________
Appeal from the Circuit Court of Lewis County
Honorable Thomas H. Keadle, Circuit Judge
Civil Action No. 90-C-26
AFFIRMED
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Submitted: May 11, 1993
Filed: June 28, 1993
Joseph W. Wagoner
Weston, West Virginia
Counsel for Appellant
David R. Rexroad
Buckhannon, West Virginia
Counsel for Appellee
This Opinion was delivered Per Curiam.
SYLLABUS BY THE COURT
1. "When a family law master or a circuit court enters an
order awarding or modifying child support, the amount of the child
support shall be in accordance with the established state
guidelines, set forth in 6 W. Va. Code of State Rules §§ 78-16-1 to
78-16-20 (1988), unless the master or the court sets forth, in
writing, specific reasons for not following the guidelines in the
particular case involved. W. Va. Code, 48A-2-8(a), as amended."
Syllabus, Holley v. Holley, 181 W. Va. 396, 382 S.E.2d 590 (1989).
2. "An appellant or plaintiff in error must carry the burden
of showing error in the judgment of which he complains. This Court
will not reverse the judgment of a trial court unless error
affirmatively appears from the record. Error will not be presumed,
all presumptions being in favor of the correctness of the
judgment." Syl. Pt. 4, Pozzie v. Prather, 151 W. Va. 880, 157 S.E.2d 625 (1967).
Per Curiam:
This is an appeal by Lisa Taylor from a December 12, 1991,
order of the Circuit Court of Lewis County requiring Mrs. Taylor's
former husband, Richard Taylor, to make child support payments in
the amount of $340 per month. The family law master's
recommendation of $340 per month in child support payments and the
lower court's adoption of that recommendation were based upon the
unemployment compensation benefits received by Mr. Taylor. The
Appellant contends that the child support to be paid by Mr. Taylor
should have been approximately $666 per month based upon attributed
income of $2,170 per month. We disagree with the contentions of
the Appellant and affirm the determination of the lower court.
I.
On February 6, 1990, the Appellant instituted a divorce action
against her husband, Richard Taylor. A final hearing was held
before the family law master on November 21, 1990, and the
recommendation of the family law master was filed on March 8, 1991.
The Appellant filed a petition for review of said recommendation
with the Circuit Court of Lewis County, taking exception to the
family law master's failure to attribute $2,170 per month income to
Mr. Taylor and the family law master's failure to use such
attributed income in the calculation of child support. The lower
court remanded the matter to the family law master for
clarification of this issue by order entered April 11, 1991. An
additional hearing was held before the family law master on
September 4, 1991, and the Appellant again took exception to the
family law master's decision not to attribute the $2,170 per month
in income to Mr. Taylor. The lower court, after reviewing the
Appellant's exceptions, approved the recommendation of the family
law master by order dated December 12, 1991.
The family law master's recommendation of $340 per month in
child support payments for the parties' two children, born June 14,
1985, and May 31, 1989, was based upon Mr. Taylor's unemployment
compensation benefits of $875 per month. The Appellant's primary
contention upon appeal is that the family law master erred by
refusing to attribute income of $2,170 per month to Mr. Taylor and
by basing the child support obligation solely upon unemployment
benefits. When the Appellant instituted the divorce action, the
Appellee earned approximately $2170 per month as a dozer operator
for Equitable Resources, Inc., in Buckhannon, West Virginia.
Between the institution of the divorce proceeding and the hearing
before the family law master, the Appellee resigned from his
position at Equitable Resources. According to his testimony, he
resigned that employment because he had been informed that he would
be required to work in Kentucky and would be on call twenty-four
hours a day, seven days a week. The Appellee attempted to secure
other employment due to his desire to remain in close proximity to
his children and to spend more time with them. Prior to resigning
from Equitable Resources, he secured a position with R. O. Harper
Trucking. The Appellee's position with Harper Trucking was
terminated after only one day of employment due to lack of work
available. The Appellee had been earning approximately $2,170 per
month at Equitable Resources and would have earned approximately
$1,200 per month at Harper Trucking. After his resignation from
Equitable Resources, he was unable to regain employment with that
company. Although he is presently attempting to acquire
employment, he is collecting unemployment at the rate of $875 per
month.
The Appellant cites 6 W. Va. C. S. R. § 78-16-4 (1988) for the
proposition that the Appellee's prior $2,170 monthly income should
have been "attributed" for the purpose of determining child support
payments. Section 78-16-4.1 provides as follows: "The term
'attributed income' shall mean income not actually earned by a
support obligor, but which may be attributed to such support
obligor because he or she is unemployed, is not working full time,
or is working below earning capacity." Further, § 78-16-4.1.1 and
4.1.1.4 provide that income shall not be attributed to a support
obligor who is unemployed if the support obligor has "made diligent
efforts to find and accept available suitable work . . . to no
avail[.]" Section 78-16-4.1.2 provides as follows:
If a court or master determines that a
limitation on income is not justified in that
it is a result of a self-induced decline in
income, a refusal to occupy time profitably,
or an unwillingness to accept employment and
earn an adequate sum, the court or master may
consider evidence establishing the support
obligor's earning capacity in the local job
market, and may attribute income to such
obligor. (emphasis added)
Based upon the evidence adduced at the hearing, the family law
master determined that although the Appellee did not use good
judgment in terminating his employment and that the limitation on
his income was a result of a self-induced decline in income, the
$2,170 monthly income should not be attributed to the Appellee.
Child support was therefore calculated based solely upon the
Appellee's unemployment benefits.
The Appellant contends that the family law master's findings
clearly support the attribution of the $2,170 monthly income to the
Appellee and that the family law master was required by this
state's child support guidelines to attribute such income. The
Appellant directs our attention to the syllabus of Holley v.
Holley, 181 W. Va. 396, 382 S.E.2d 590 (1989), in which we
explained:
When a family law master or a circuit
court enters an order awarding or modifying
child support, the amount of the child support
shall be in accordance with the established
state guidelines, set forth in 6 W. Va. Code
of State Rules §§ 78-16-1 to 78-16-20 (1988),
unless the master or the court sets forth, in
writing, specific reasons for not following
the guidelines in the particular case
involved. W. Va. Code, 48A-2-8(a), as
amended.
A thorough reading of the section upon which the Appellant
relies, however, reveals the discretionary nature of the family law
master's power to decide whether to attribute income to a support
obligor. When referring to a family law master's discretion,
section 78-16.4.1.2 provides that the family law master "may"
attribute income if certain conditions are present. We have
previously quelled any misconception about the import of the use of
"may" in similar contexts. Specifically, in Bettinger v.
Bettinger, 183 W. Va. 528, 396 S.E.2d 709, (1990), we explained
that "[o]rdinarily, the word 'may' imparts discretionary action,
while the term 'shall' indicates a mandatory requirement."See footnote 1 Id.
at 539, 396 S.E.2d at 720.
The Appellant's argument is premised upon a misinterpretation
of the discretion of the family law master. Nothing in § 78-16-4
requires a family law master or a court to attribute income to an
obligor. Furthermore, if the family law master had attributed the
$2,170 monthly income to the Appellee in this case, the Appellee
could potentially have contested that ruling due to his apparent
"diligent efforts to find and accept available suitable work." 6
W. Va. C.S.R. § 78-16-4.1.1.4. If such diligent efforts are being
made, as the Appellee contends, it would be improper under § 78-16-4.1.1.4 for the family law master to attribute income to the
Appellee.
Under the circumstances of this case and in light of the
discretionary power of the family law master regarding the
attribution of income, we find no error by the lower court. The
family law master's findings that the Appellee did not use good
judgment and that his income limitation was a result of a self-induced decline in income did not require the conclusion that the
$2,170 monthly income should be attributed to the obligor. It was
well within the family law master's discretion to decide against
attributing that income. Moreover, it was not an abuse of that
discretion to do so. While the Appellee may have used poor
judgment in resigning from his position at Equitable Resources, his
motivation was apparently well-grounded in his desire not to be
separated from his children. The Appellant, while obliquely
questioning that motivation, presented no evidence whatsoever which
would indicate fraud or improper motivation of any nature. With
regard to the untimely resignation, the Appellee offered the
following explanations: that he had secured other employment prior
to resigning from Equitable Resources, that he was laid off from
Harper Trucking after only one day of employment, and that has been
diligently seeking employment since that time.
As we explained in syllabus point 4 of Pozzie v. Prather, 151
W. Va. 880, 157 S.E.2d 625 (1967),
An appellant or plaintiff in error must
carry the burden of showing error in the
judgment of which he complains. This Court
will not reverse the judgment of a trial court
unless error affirmatively appears from the
record. Error will not be presumed, all
presumptions being in favor of the correctness
of the judgment.
The record before us is devoid of any evidence of fraud or
deception by the Appellee. We therefore affirm the decision of the
lower court.
Affirmed.
Footnote: 1The context in which the connotation of the word "may" was
examined in Bettinger also involved child support regulations. At
issue in that case was the discretion of the court or a family law
master to apply the formula to parents whose income exceeded a
certain amount.
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