          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2017 Term
                                _______________

                                  No. 15-1161                           FILED
                                _______________                      April 18, 2017
                                                                        released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                  EDWIN K.,                         SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
                           Respondent Below, Petitioner

                                        v.

       BONNIE W., and BUREAU FOR CHILD SUPPORT ENFORCEMENT,

                       Petitioners Below, Respondents


      ____________________________________________________________

                  Appeal from the Circuit Court of Gilmer County

                        The Honorable Jack Alsop, Judge

                            Civil Action No. 06-D-70


                                   AFFIRMED


      ____________________________________________________________

                           Submitted: February 14, 2017

                              Filed: April 18, 2017


Daniel R. Grindo, Esq.                       Dee-Ann Burdette, Esq.
Law Office of Daniel R. Grindo, PLLC         West Virginia Department of Health and
Gassaway, West Virginia                      Human Resources, Bureau for Child
Counsel for the Petitioner                   Support Enforcement
                                             Charleston, West Virginia
                                             Counsel for the Respondent




JUSTICE WALKER delivered the Opinion of the Court.
                            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).




                                            i
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


       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.
Dep’t. of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
(1987).



                                             1

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.




       2
         Until the underlying petition to modify child support based on a significant
change in income was filed in June 2015, no notification was made to the family court on
behalf of either party to indicate that Petitioner’s income had significantly increased.
       3
         The testimony at the hearing regarding the timing and reasons for Petitioner’s
resignation from Union Drilling/Sidewinder was contradictory.


                                            2

              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




                                              3

was well within the purview and authority of the family court to do so. It is from this

order that Petitioner appeals.



                             II. STANDARD OF REVIEW

              As discussed above, the circuit court affirmed the family court’s September

17, 2015 order. In these procedural circumstances, we have held:

                     [I]n 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).



                                    III. ANALYSIS

              Petitioner asserts on appeal that the circuit court erred in affirming the

September 17, 2015 family court order that made an upward modification of his child

support obligation through attribution of income. Petitioner argues that the circuit court

erred in finding the court made adequate findings in its order relating to the statutory

factors to support upward modification and specifically failed to find that his self-

employment is exempt from income attribution pursuant to the applicable statute. We

disagree.




                                            4

                We have observed that West Virginia Code § 48-1-205 allows a family

court or circuit court to attribute income to a parent “when there is evidence that the

parent has, without justifiable reason, voluntarily acted to reduce their income.” Porter v.

Bego, 200 W. Va. 168, 175-76, 488 S.E.2d 443, 450-51 (1997). As we explained in

Syllabus Point 4 of Porter:

                “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 (2008)].4
                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.




       4
           “Attributed income” is defined in West Virginia Code § 48-1-205(a) as follows:

                “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 or is working
                below full earning capacity or has nonperforming or
                underperforming assets. Income may be attributed to a parent
                if the court evaluates the parent's earning capacity in the local
                economy (giving consideration to relevant evidence that
                pertains to the parent's work history, qualifications, education
                and physical or mental condition) and determines that the
                parent is unemployed, is not working full time or is working
                below full earning capacity. Income may also be attributed to
                a parent if the court finds that the obligor has nonperforming
                or underperforming assets.



                                               5

(footnote added).5



              West Virginia Code § 48-1-205(b) outlines a three-part test to evaluate

whether attribution of income to a parent is appropriate. The statute provides:

              If an obligor: (1) Voluntarily leaves employment or
              voluntarily alters his or her pattern of employment so as to be
              unemployed, underemployed or employed below full earning
              capacity; (2) is able to work and is available for full-time
              work for which he or she is fitted by prior training or
              experience; and (3) is not seeking employment in the manner
              that a reasonably prudent person in his or her circumstances
              would do, then an alternative method for the court to
              determine gross income is to attribute to the person an
              earning capacity based on his or her previous income. . . . [i]n
              order for the court to consider attribution of income, it is not
              necessary for the court to find that the obligor’s termination
              or alteration of employment was for the purpose of evading a
              support obligation.

W. Va. Code § 48-1-205(b) (2015).




       5
          The original provisions governing attribution of income were in the Code of
State Rules. In 1996, the Legislature enacted West Virginia Code § 48A-1A-3 to govern
income attribution for purposes of calculating child support. See Porter, 200 W.Va. at
173-74, 488 S.E.2d at 448-49. The statute has been amended several times including in
1997, 2001 and most recently in 2008. The applicable statute is now West Virginia Code
§ 48-1-205. In addition to making minor stylistic changes over the years, the Legislature
amended the statute to permit the attribution of income from nonperforming or
underperforming assets and to insert the last sentence in subsection (b), which provides
that “[i]n order for the court to consider attribution of income, it is not necessary for the
court to find that the obligor’s termination or alteration of employment was for the
purpose of evading a support obligation.” W.Va. Code § 48-1-205(b).


                                             6

              The first element requires only that the departure from employment be

voluntary and, in this case, that the Petitioner be employed below full earning capacity.

Here, there is no dispute that Petitioner left his employment with Blue Dot voluntarily.

Although Petitioner claims he “knew he was going to be laid off,” he testified that he

could have continued working for as long as work was available and further testified that

he was not served with any notice that his employer would be making layoffs or that he

would be put on low earnings (unemployment benefits).              Petitioner submitted no

evidence that layoffs were imminent or expected aside from his own testimony that he

thought he would be laid off. Petitioner also indicated he left his employment to aid his

parents in making their home handicap accessible and in order to pursue self-employment

through his existing plumbing business.            The undisputed evidence regarding the

dormancy and/or lack of profitability of his plumbing business demonstrates that, as

compared to his lucrative prior employment with drilling companies, he is employed

below full earning capacity. Thus, this first element is readily satisfied from the record.



              As to the second element, Petitioner submitted no evidence to rebut the fact

that he was able and available for work. Rather, Petitioner’s testimony was that he chose

to pursue his own business for reasons unrelated to his ability to work.



              Petitioner’s primary challenge to the court’s decision relates to the third

element, which provides for attribution where an individual “is not seeking employment


                                              7

in the manner that a reasonably prudent person in his or her circumstance would do. . . .”

W.Va. Code § 48-1-205(b)(3).      We have interpreted this element as requiring a family

court to “examine what a reasonable, similarly-situated parent would have done had the

family remained intact or, in cases involving a nonmarital birth, what the parent would

have done had a household been formed.” Porter, 200 W. Va. at 176, 488 S.E.2d at 451.

Petitioner argues that pursuing self-employment and establishing a business is consistent

with what the “reasonably prudent person” would do in the same or similar

circumstances.



              Petitioner further argues that the legislature has enumerated self-

employment as exempt from attribution of income. The relevant portions of the statute

relied upon by Petitioner are as follows:

              (c) Income shall not be attributed to an obligor who is
              unemployed or underemployed or is otherwise working below
              full earning capacity 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 to whom the support
              obligation is owed, including, but not limited to, self-
              employment or education: Provided, That if the parent is
              involved in an educational program, the court shall ascertain
              that the person is making substantial progress toward
              completion of the program[.]




                                            8

W. Va. Code § 48-1-205(c)(2). Petitioner argues that his circumstances are similar to

those in Cassandra W. v. Scott M., No. 14-1002, 2015 WL 3448211 (W. Va. May 29,

2015) (memorandum decision). In that case, we discussed this statutory exemption from

attribution of income because the parent was pursuing his education. Id. at *3. In

Cassandra W., the child’s father was a contractor for the federal government in

Afghanistan. Id. at *1. He received a separation letter allowing him to renew his

contract for only one month, after which time he would be laid off. Id. The father chose

not to renew the one-month contract and instead enrolled in training that would be

completed in four weeks’ time, after which he would be able to obtain a higher rate of

employment in the local job market. Id. at *1-2. We affirmed the family court’s refusal

to attribute the income from his former employment as he was pursuing a plan of

economic self-improvement that would result in an economic benefit to the child within a

reasonable amount of time. Id. at *3.



             Although the father in Cassandra W. did leave his employment while he

could have continued to work, his circumstances were vastly different from those in this

case. First, as discussed above, Petitioner has not produced any evidence that layoffs

were imminent. In contrast, the father in Cassandra W. was provided with a notice that

he would be laid off in one month. Second, in Cassandra W., there was a finite amount

of time (only four weeks) to complete the training program, and the father demonstrated

that, upon its completion, he would be able to obtain a higher rate of employment in the


                                           9

local job market. While we acknowledge that self-employment is considered a plan of

economic self-improvement pursuant to the statute, Petitioner failed to provide evidence

that his plumbing business will result, within a reasonable time, in economic benefit to

his child. In fact, as discussed more thoroughly below, his departure from employment

from Blue Dot and pursuit of self-employment has and is projected to continue to result

in economic detriment to his child, including the loss of health care insurance coverage.



              We find the facts and circumstances surrounding Petitioner’s departure

from employment are more akin to those in Melinda H. v. William R., 230 W. Va. 731,

742 S.E.2d 419 (2013). In Melinda H., the father left full-time employment with a salary

of $6,919.48 per month for employment with Marble King, owned by his fiancé’s

mother, at a rate of $10 per hour. Id. at 422, 742 S.E.2d at 734. The family court set his

child support obligation pursuant to the $10 per-hour figure. Id. In reversing the family

court’s decision, we noted that, while the father may have had a “long term plan” to run

or share in running Marble King with his fiancé, testimony from his future mother-in-law

revealed no immediate plans to turn the business over to his fiancé, nor was there any

plan to do so in the foreseeable future. Id. at 424, 742 S.E.2d at 736. Moreover, the

father’s income would be based on a small percentage of profits from contracts resulting

in no more than a few thousand dollars here and there on a sporadic basis.              Id.

Accordingly, we held that such a “long term plan” was not expected to result in economic

benefit to the child within a reasonable amount of time. Id.


                                            10

              Here, Petitioner’s foray into the plumbing business has a similar, vague

financial outlook with sporadic earnings that are not expected to result in economic

benefit to the child within a reasonable amount of time. Petitioner previously attempted

self-employment, having obtained his plumbing license in 1997 or 1998, and has

acknowledged that his plumbing business has never been very successful. Petitioner

indicated on his 2014 tax return that his plumbing business was dormant. He testified

that as of the time of the hearing in 2015, the business had income of $500 per month and

expenses of approximately “a couple thousand” dollars per month, and thus it was

currently operating at a loss. Petitioner testified that he had been living off of loans and

his savings, which had been diminished from around $8,000 to less than $1,000.

Petitioner offered no specific evidence of any future financial outlook whatsoever.



              It is clear that, had a household been formed, a reasonable, similarly-

situated parent would not have left gainful and lucrative employment with health benefits

in the local job market to pursue self-employment in a field in which he had been

previously unsuccessful and which was not providing ample income to support the

business itself, much less its owner and his child. There was no evidence presented that

business was becoming profitable or would become successful enough to provide for his

child within a reasonable time. To the contrary, there is ample evidence in the record and

in the tenor and substance of the family court’s questioning to confirm that the statutory


                                            11

tests were applied and the family court determined that the exception did not apply to

Petitioner’s particular circumstances. Accordingly, although the family court’s order did

not make explicit findings of fact and conclusions of law in its order relating to

application of the three-part statutory test, we find no error.



                                    IV. CONCLUSION

              For the foregoing reasons, we affirm the November 2, 2015 order of the

Circuit Court of Gilmer County.



                                                                               Affirmed.




                                              12

