                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Cassandra W.,                                                                        FILED
Respondent Below, Petitioner                                                        May 29, 2015
                                                                                RORY L. PERRY II, CLERK
vs) No. 14-1002 (Kanawha County 02-D-387)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


Scott M.,
Petitioner Below, Respondent


                               MEMORANDUM DECISION

       Petitioner Cassandra W.,1 appearing pro se, appeals the order of the Circuit Court of
Kanawha County, entered August 27, 2014, that denied her appeal from the July 15, 2014, order of
the Family Court of Kanawha County directing that neither party was required to pay child
support. Respondent Scott M., by counsel Clinton W. Smith, filed a response, and petitioner filed a
reply.

        The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the family court is affirmed, in part, and
reversed, in part, and this case is remanded to the family court with directions to hold a new
hearing to determine child support.

       The parties were never married, but have one child together, K.M, who was born on
September 1, 1998. By an order entered by the Family Court of Kanawha County on February 4,
2004, respondent was required to pay petitioner $300.72 per month in child support.

       Respondent later went to work in Afghanistan as a technician for a military subcontractor
at a substantial salary; consequently, petitioner filed a petition for modification in 2012 in the
family court seeking to increase respondent’s child support obligation. Petitioner’s modification
proceeding resulted in respondent’s child support obligation being raised to $1,442.69 per month.

       Respondent filed the instant petition for modification on March 25, 2014, alleging a

       1
          Because this case involves sensitive facts, we protect the identities of those involved by
using the parties’ first names and last initials only. See State ex rel. W.Va. Dept. of Human Servs. v.
Cheryl M., 177 W.Va. 688, 689 (n. 1), 356 S.E.2d 181, 182 (n. 1) (1987).

                                                  1
substantial change in circumstances because he had become unemployed. As part of his financial
disclosure, respondent stated that he had $48,000 in savings accounts/certificates of deposit. On
April 11, 2014, petitioner filed a response and a cross petition alleging that income should be
attributed to respondent based on his former employment in Afghanistan. Petitioner also asserted
that respondent’s financial disclosure did not include the required documents.2

       The family court held a hearing on the proposed modification on May 20, 2014. However,
respondent’s counsel informed the family court that he neglected to notify respondent of the
hearing date and, therefore, asked for a continuance. Petitioner agreed to the continuance, but
requested that respondent be required to file the supporting documentation to his financial
disclosure. The family court ordered respondent to file his return for the 2013 tax year.

        The hearing was rescheduled for June 10, 2014.3 Also on that date, respondent filed his
2013 tax return and provided the same to petitioner. Both parties testified at the June 10, 2014,
hearing. Respondent testified that he separated from his employment in Afghanistan on January
20, 2014, when his contract expired. Respondent supported his testimony by introducing the
January 24, 2014, separation letter from his employment into evidence. When the family court
sought clarification from respondent, respondent answered that he could have renewed his contract
for approximately another month, but indicated that, beyond that time, he would have been laid off
because his employer’s contract as a subcontractor was ending.

         During his unemployment, respondent testified that he had no income and was living off
his savings.4 Respondent stated that while no longer employed, he was enrolled in training in
which he was learning how to program routers and build networks. Respondent stated that he
would complete his educational program in four weeks and that he anticipated returning to the
workforce following the completion of his training. On re-cross examination by petitioner,
respondent indicated that his training would allow him to obtain a higher rate of employment than
he could otherwise achieve in the local job market. Respondent testified that he still had his
electrician’s license.

        During her testimony, petitioner agreed with respondent’s statement that the child was
spending fifty percent of her time with each parent. Petitioner objected to a proposal by respondent
that he be attributed income at the federal minimum wage, alleging that income should be
attributed to respondent based on his former employment.


       2
         Petitioner filed her financial disclosure with her response and cross petition, and included
supporting documentation. See Rules 13(a), W.Va. Rul. Prac. & Proc. for Fam. Cts.
       3
        The video recordings of the June 10, 2014 hearing, as well of the May 20, 2014, hearing,
have been reviewed.
       4
        Respondent testified that he believed that he was eligible for unemployment
compensation, but that applying for those benefits would be complicated by the fact that his former
employment was in a foreign country.
                                                 2
       The other component of respondent’s proposed resolution of the case was that he offered to
waive any child support due him as a result of the prevailing arrangement where the child evenly
divided her time between each parent. Respondent’s counsel stated that if petitioner opposed their
proposal, respondent would not waive the right to receive child support.

        At the end of the hearing, the family court found respondent’s testimony that he separated
from his employment in Afghanistan involuntarily to be credible. The family court also found
credible respondent’s testimony that he was pursuing a plan of economic self-improvement that
will result in an economic benefit to the child pursuant to West Virginia Code § 48-1-205(c),
which provides that income shall not be attributed in certain situations even in those cases where
termination from employment is voluntary. Nonetheless, the family court, over petitioner’s
objection, adopted respondent’s proposal that he (1) be attributed income at the federal minimum
wage—contrary to the court’s findings that the attributed income statute, West Virginia Code §
48-1-205, did not apply—and (2) be allowed to waive the child support due him under any new
child support calculation.

        In calculating child support, the family court determined that respondent’s monthly gross
income was $1,256.67 at the federal minimum wage. The family court and the parties agreed that
petitioner’s monthly gross income was $3,528. The family court then determined that pursuant to
the new child support calculation, petitioner owed respondent $158.73 per month. However, the
family court found that respondent waived the right to receive child support, and therefore, ordered
that there would be no child support paid for the remainder of the child’s minority5 absent a
substantial change of circumstances.

        The family court’s July 15, 2014, order memorializing its various rulings from the June 10,
2014, hearing provided that the new $0 child support directive was effective from June 1, 2014,
rather than the date of respondent’s petition for modification as a sanction for respondent’s failure
to provide his 2013 tax return in a timely manner.6 Petitioner appealed the family court’s July 15,
2014, order to the Circuit Court of Kanawha County, which denied her appeal by an one-page
order entered August 27, 2014.

       Petitioner now appeals to this Court. We review the matter under 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 family court judge under the clearly erroneous standard, and the
       application of law to the facts under an abuse of discretion standard. We review

       5
         Based on her date of birth, the child will not achieve her majority for approximately
another year and half.
       6
          Rule 13(a) of the West Virginia Rules of Practice and Procedure for Family Court
provides, in pertinent part, that “petitioner and respondent shall file the following documentation
in support of the required financial statement . . . no later than five days prior to any scheduled
hearing.”
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       questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004).

       On appeal, petitioner argues that the family court erred in not attributing to respondent his
income from his former employment in Afghanistan or, in the alternative, the income he would
have earned as a licensed electrician in the local job market. Respondent counters that the family
court determined that it was not required to attribute income to him based on findings that (1)
respondent did not voluntarily terminate his employment; and (2) respondent was pursuing a plan
of economic self-improvement that will result in an economic benefit to the child.

         We note that West Virginia Code § 48-1-205(b) requires that in order for income
attribution to apply, the family court must find that three requirements are met—the first of which
is that the obligor left employment voluntarily. Furthermore, even when the threshold test has been
satisfied, West Virginia Code § 48-1-205(c) provides, in pertinent part, that “[i]ncome shall not be
attributed to an obligor who is unemployed . . . if any of the following conditions exist: . . . (2) The
parent is pursuing a plan of economic self-improvement which will result, within a reasonable
time, in an economic benefit to the children[.]” (Emphasis added.)

        The family court’s findings that West Virginia Code § 48-1-205(b) did not require income
attribution were based on the family court’s judgment that respondent’s testimony was credible.
“An appellate court may not decide the credibility of witnesses . . . as that is the exclusive function
and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 (n. 9), 461 S.E.2d 163, 175 (n. 9)
(1995). Based on our review of the video recording of the June 10, 2014, hearing, we find no cause
to disturb the family court’s credibility determination. Also, respondent introduced the January 24,
2014, separation letter from his employment in support of his testimony that he was terminated
involuntarily. The parties dispute whether the separation letter indicates that respondent’s
termination was voluntary or involuntary. From a review of the letter, we determine that the family
court was entitled to find that the letter was supportive of respondent’s position that he was
involuntarily terminated from his job; accordingly, we do not disturb the family court’s finding in
that regard. See Id. (appellate court also defers to factfinder’s weighing of evidence). Therefore,
we find that the family court did not abuse its discretion in refusing to attribute to respondent his
income from his former employment or, in the alternative, the income he would have earned as a
licensed electrician.

         Petitioner also argues that the family court erred in attributing income to respondent at the
federal minimum wage as part of its ruling that neither party is required to pay child support for the
remainder of the child’s minority absent a substantial change of circumstances. By adopting a
resolution proposed by respondent and attributing minimum wage income to him, we determine
that the family court committed two errors of law. First, the family court’s decision to attribute any
amount of income to respondent was contrary to the findings—discussed supra—that precluded
the attributed income statute, West Virginia Code § 48-1-205, from applying to this case. Thus, we
find that the family court erroneously attributed income to respondent after it determined that it did


                                                   4
not have the statutory authority to do so.7

        Second, while respondent agreed to income being attributed to him at the federal minimum
wage, respondent did so only as part of his proposal where he would also waive any child support
due him in the event that the family court determined—which the court did—that petitioner had a
support obligation. While respondent’s proposal was arguably somewhat favorable to petitioner,
petitioner immediately objected to it. After petitioner made her objection, respondent’s counsel
replied that if petitioner opposed their proposal, respondent would not waive the right to receive
child support. This indicates that respondent made the proposal only in an attempt to persuade
petitioner not to contest his request to have his support obligation reduced. However, what we find
significant is that respondent used as leverage something that was not his. We have consistently
held that a parent may not bargain the right to receive support away because it is a right that
belongs to the child, and not the parent. See Syl., Rebecca C. v. Michael B., 213 W.Va. 744, 745
584 S.E.2d 600, 601 (2003) (quoting Syl. Pt. 3, Wyatt v. Wyatt, 185 W.Va. 472, 473, 408 S.E.2d
51, 52 (1991)) (“The duty of a parent to support a child is a basic duty owed by the parent to the
child, and a parent cannot waive or contract away the child’s right to support.”) Thus, we
determine that the family court committed a second legal error in adopting—over petitioner’s
objection—respondent’s proposal by which he waived the child’s right to receive child support.

        In Green v. Ford Motor Credit Co., No. 13-0243, 2014 WL 274474, at *3-4 (W.Va.
Supreme Court, January 24, 2014) (memorandum decision), we reversed a circuit court’s decision
to deny a motion to vacate settlement because it relied on an error of law. After resolving the legal
error, we remanded the case for a new hearing on the motion. Id. at *4. In the instant case, we
similarly reverse the family court’s ruling that neither party is required to pay child support for the
remainder of the child’s minority—as it relies on two errors of law—and remand this case for a
new hearing to determine child support.

        With regard to issues to be determined on remand, as discussed supra, the family court
correctly determined that the attributed income statute did not apply to this case. However,
petitioner argues that the family court should have taken into account the $48,000 respondent has
in savings when it recalculated the parties’ respective child support obligations. See W.Va. Code §
48-13-102 (providing that child has right to parents’ standard of living and “share in [her] parents’
resources”) (emphasis added). Respondent counters that because a savings account is not included
within the definition of “gross income” as set forth in West Virginia Code § 48-1-228(a), the
statutory framework for determining child support contradicts petitioner’s argument that
respondent’s savings should have been considered. We agree with petitioner.

       In Adkins v. Adkins, 221 W.Va. 602, 609, 656 S.E.2d 47, 54 (2007), we determined that
when an obligor parent is terminated from his job involuntarily and West Virginia Code §
48-1-205 does not apply to allow his pre-termination income to be attributed to him, a child
support order still may be entered with regard to that parent provided that the order reflects the


       7
        We note that “[a]ttribution of income is a legislative invention.” Adkins v. Adkins, 221
W.Va. 602, 608, 656 S.E.2d 47, 53 (2007).
                                                  5
parent’s actual income8 and other resources during the period of unemployment. We explained
that “parents have an abiding duty to provide support for their dependent children” and that
“[c]ourts remain obligated under the relevant statutory guidelines for child support awards[9] to
consider all sources of income or other property when calculating support payments initially or
upon modification.” Id. (emphasis added). As petitioner points out, West Virginia Code §
48-13-102 provides that the child has a right to share in her father’s resources. We note that
$48,000 is not an insignificant amount of money from which a person may not only provide for
himself, but also for his child. Therefore, we find that the family court should consider
respondent’s savings at the remand hearing to determine child support.

        Respondent testified that during his unemployment, he was using his savings to pay
expenses. Petitioner notes that $48,000 is approximately $10,000 more than her annual salary, but
acknowledges that some of respondent’s savings may be held in certificates of deposit which may
present questions of liquidity. We find that these are factors the family court needs to consider
when it makes a new determination of child support at the remand hearing, and in preparation for
that hearing, may order the parties to supplement their financial disclosures.10

        For the foregoing reasons, we reverse the circuit court’s August 27, 2014, order that denied
petitioner’s appeal from the family court’s July 15, 2014, order. With regard to the July 15, 2014,
order, we (1) affirm the family court’s determination that the attributed income statute, West
Virginia Code § 48-1-205, does not apply to the parties’ case; (2) reverse the family court’s ruling
that neither party is required to pay child support for the remainder of the child’s minority absent a

       8
            As West Virginia Code § 48-1-228(a) reflects, not all income comes from employment.
       9
        The relevant statutory guidelines are found at West Virginia Code §§ 48-13-101 to
48-13-804.
       10
           The parties dispute whether respondent has submitted all of the supporting documents
required by Rule 13(a) of the West Virginia Rules of Practice and Procedure for Family Court for
his financial disclosure. We note that after petitioner raised the issue at the May 20, 2014, hearing,
the family court required respondent to submit his 2013 tax return, which he subsequently filed in
an untimely manner. While the family court sanctioned respondent for the untimely filing, the
court fashioned a sanction that was not one of the two remedies set forth in Rule 13(b), which are
to deny the offender’s requested relief and/or accept the opposing party’s financial information as
accurate. However, because Rule 13(b) uses the permissive word “may,” we determine that Rule
13(b) does not mandate that either one of its prescribed sanctions be utilized. Therefore, we cannot
say, under the circumstances of the instant case, that the family court erred in imposing its own
sanction. Furthermore, while petitioner believes that the family court should have compelled the
production of additional documents, the documents she seeks—such as tax returns and W-2 forms
for years prior to 2013 and recent pay stubs from respondent’s former job—are not relevant in a
situation where, such as in this case, West Virginia Code § 48-1-205 does not apply and
respondent’s income from his prior employment cannot be attributed to him.


                                                  6
substantial change of circumstances; and (3) remand the case to the family court with directions to
hold a new hearing to determine child support.

                                                          Affirmed, in part, Reversed, in part, and
                                                          Remanded with Directions.

ISSUED: May 29, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Justice Brent D. Benjamin




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