                           STATE OF WEST VIRGINIA
                         SUPREME COURT OF APPEALS


Heather H.,
Petitioner                                                                     FILED
                                                                            June 17, 2020
                                                                              released at 3:00 p.m.
vs) No. 19-0058 (Kanawha County 12-D-714)                                 EDYTHE NASH GAISER, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
W. Shane H.,
Respondent


                            MEMORANDUM DECISION


             Petitioner Heather H. 1 (“Wife”) appeals an order of the circuit court in this
divorce proceeding. She contends that the circuit court erred by 1) vacating the alimony
award entered by the family court, and 2) including Respondent W. Shane H.’s
(“Husband”) student loan in the marital estate. 2

              The Court has considered the parties’ briefs and the record on appeal. The
facts and legal arguments are adequately presented, and the parties have agreed that the
decisional process would not be significantly aided by oral argument. 3 This case satisfies
the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of
Appellate Procedure. After review, the decision of the circuit court is affirmed, in part,
reversed, in part, and remanded to the circuit court with directions to enter an order
remanding the case to the family court for further proceedings consistent with our ruling
herein.



       1
          Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015).
       2
         Heather H. is represented by Lyne Ranson, Esq., and Tim Carrico, Esq. W. Shane
H. is represented by Mark A. Swartz, Esq.
       3
         This matter was originally scheduled for oral argument on April 15, 2020, but was
continued generally due to an Administrative Order entered by the Court declaring a
judicial emergency due to the COVID-19 virus. The parties were given the opportunity,
and agreed, to submit their case on briefs without oral argument.
                                             1
              The parties were married in 1993. Husband is an orthodontist. Wife worked
with Husband from 2002 to 2012. According to the family court, “[b]oth parties admit that
[Wife] worked hard to establish [Husband] as a known and referable orthodontist, as well
as working alongside him at his office in various positions over the years as needed.” They
have two minor children who were born in 2009 and 2012. The custodial arrangement
regarding these children is not at issue in this appeal.

               Husband initiated this divorce proceeding in April of 2012. Several
temporary and final orders were entered by the family court between 2012 and 2017. Per
an agreed temporary order entered on July 3, 2012, Husband was ordered to pay Wife
$11,500 per month. The parties appeared for several hearings to present evidence in the
family court regarding equitable distribution, alimony, and child support. Wife testified
that she was requesting $14,648.92 per month in child support, and $5,000 per month in
temporary alimony. Wife stated that she was only requesting $5,000 per month in alimony
until her children graduated from high school.

             The family court issued its final order regarding equitable distribution,
alimony, and child support on November 13, 2017. It ordered Husband to pay Wife
$15,000 per month in permanent alimony, and $12,711.52 per month in child support. 4
Regarding the alimony award, the family court considered the factors set forth in W. Va.
Code § 48-6-301(b) (2001). That section 5 provides that the following shall be considered
in awarding spousal support:

              (1) The length of time the parties were married;
              (2) The period of time during the marriage when the parties
              actually lived together as husband and wife;
              (3) The present employment income and other recurring
              earnings of each party from any source;
              (4) The income-earning abilities of each of the parties, based
              upon such factors as educational background, training,
              employment skills, work experience, length of absence from
              the job market and custodial responsibilities for children;
              (5) The distribution of marital property to be made under the
              terms of a separation agreement or by the court under the
              provisions of article seven of this chapter, insofar as the
              distribution affects or will affect the earnings of the parties and
              their ability to pay or their need to receive spousal support,

       4
        The order directed Wife to “invest the sum of $2,500 per child ($5,000) per month
to an educational investment plan of her choice.”
       5
        This statute was amended in 2018. Our review of the statute is of the version that
was in place in 2017 when the family court entered its final order.
                                              2
             child support or separate maintenance: Provided, That for the
             purposes of determining a spouse’s ability to pay spousal
             support, the court may not consider the income generated by
             property allocated to the payor spouse in connection with the
             division of marital property unless the court makes specific
             findings that a failure to consider income from the allocated
             property would result in substantial inequity;
             (6) The ages and the physical, mental and emotional condition
             of each party;
             (7) The educational qualifications of each party;
             (8) Whether each party has foregone or postponed economic,
             education or employment opportunities during the course of
             the marriage;
             (9) The standard of living established during the marriage;
             (10) The likelihood that the party seeking spousal support,
             child support or separate maintenance can substantially
             increase his or her income-earning abilities within a reasonable
             time by acquiring additional education or training;
             (11) Any financial or other contribution made by either party
             to the education, training, vocational skills, career or earning
             capacity of the other party;
             (12) The anticipated expense of obtaining the education and
             training described in subdivision (10) above;
             (13) The costs of educating minor children;
             (14) The costs of providing health care for each of the parties
             and their minor children;
             (15) The tax consequences to each party;
             (16) The extent to which it would be inappropriate for a party,
             because said party will be the custodian of a minor child or
             children, to seek employment outside the home;
             (17) The financial need of each party;
             (18) The legal obligations of each party to support himself or
             herself and to support any other person;
             (19) Costs and care associated with a minor or adult child’s
             physical or mental disabilities; and
             (20) Such other factors as the court deems necessary or
             appropriate to consider in order to arrive at a fair and equitable
             grant of spousal support, child support or separate
             maintenance.

              While the family court set forth findings under each factor, we find its
analysis of factors three, nine, seventeen, and twenty to be particularly relevant to the
instant appeal. Pursuant to the third factor, the family court found that Husband’s “(36)

                                             3
month average gross income is $113,545.00 per month or $1,362,540.00 per year,” while
Wife “is not employed at this time but does have a child of tender years in her care and
custody.” Under the ninth factor, the family court determined that “the parties’ standard
of living was comfortable.” The family court’s finding under the seventeenth factor, the
financial need of each party, was that Wife

              testified . . . that her reasonable monthly expenses are
              $8,241.57 per month. [Wife] does have a monthly need for
              alimony, as the Court finds that the child support is to be used
              for the benefit of the minor children. Furthermore, she will
              need an amount beyond the alimony award to cover the taxes
              on her alimony so that she can meet her monthly living
              expenses.

              Finally, the family court’s finding under the last factor was that Husband’s
“alleged infidelity as well as his admitted contact with another woman that was not his wife
during the parties’ marriage contributed to the dissolution of the marriage.” 6

              Based on its analysis of these factors, the family court’s final order provides

              [t]his Court notes that the parties lead a comfortable lifestyle
              during the marriage which afforded many luxuries. . . . In
              addition, the Court finds that [H]usband’s income would
              adequately support the maintenance of the current lifestyle
              enjoyed by each party.

                    The Court after due consideration of the foregoing
              alimony factors FINDS and ORDERS [Husband] to pay [Wife]
              a permanent spousal support in the amount of $15,000.00 per
              month effective November 1, 2017. Alimony shall cease upon


       6
         Additionally, regarding the fourth factor, the family court determined that Husband
“is 45 years old and is trained as an orthodontist” and “operates Shane H[.], Inc., and three
real estate holding companies,” while Wife “is 45 years old and . . . unemployed at this
time.” It found that Wife has “a degree in Marketing” and “worked in that profession and
supported the parties while [Husband] obtained his dental schooling.” Further, Wife
“worked for Shane H[.], Inc.[,] as an office manager and administrator” for approximately
eleven years, during which time she “ensure[d] that the Husband’s business flourished and
grew.” Wife was previously employed by “the U.S. Postal Service, Mylan
Pharmaceuticals, and Mid Atlantic Capitol Group,” although she “has been out of her
chosen career for several years.” The family court found that Wife “suffers from no
disabilities that prevent her from working.”
                                             4
              the death of [Husband], death of [Wife], or the remarriage of
              [Wife].

              The family court’s final order also found that Husband’s outstanding student
loan debt, $133,985, was his “separate debt not subject to equitable distribution.” It was
undisputed that this debt was incurred during the marriage. The family court’s order did
not include an explanation or cite any law in support of its ruling that this debt was not
subject to equitable distribution.

               Following entry of the family court’s order, Husband filed two motions for
reconsideration, which the family court denied. Husband then filed a petition for appeal
with the circuit court. On appeal to the circuit court, Husband asserted that the family court
erred in awarding permanent alimony to Wife in the amount of $15,000 per month, when
she only requested $5,000 per month for a limited duration—until the children graduated
from high school. Further, Husband disputed the family court’s finding that his alleged
infidelity contributed to the dissolution of the marriage. Husband also asserted that the
family court erred in ruling that his student loan debt was a separate debt instead of a
marital debt.

              After holding a hearing, the circuit court entered a final order on December
3, 2018. The circuit court found that the family court abused its discretion “by finding that
Wife had a financial need for alimony.” The circuit court’s order provides that

              the family court clearly erred and abused its discretion by
              awarding Wife permanent spousal support in the amount of
              $15,000 per month considering Wife’s total financial needs of
              $8,241 and the amount of child support alone she receives
              ($12,711.52); as well as the fact she did not request permanent
              spousal support. Wife’s financial needs will be met by her
              child support award alone which the parties agreed at trial
              would have been $14,648.92.

                     The court considers the permanent spousal support
              award of $15,000 to be a windfall to Wife and constitutes an
              abuse of discretion and error by the family court.

                    Based on the foregoing . . . Wife’s spousal support
              award is REVERSED and VACATED, and Wife is hereby
              DENIED spousal support. Child support previously calculated
              without alimony will be $14,648.92.

              Additionally, the circuit court found that the family court abused its
discretion by awarding permanent alimony to Wife on the basis that Husband’s “alleged

                                              5
infidelity as well as his admitted contact with another woman that was not his wife during
the parties’ marriage contributed to the dissolution of the parties’ marriage.” The circuit
court determined that “there was no evidence presented at trial by [Wife] that [Husband]
committed adultery during the parties’ marriage that contributed to the dissolution of the
parties’ marriage.” 7

               The circuit court also ruled that the family court abused its discretion by
ruling that Husband’s student loan debt was his separate debt which was excluded from the
martial estate. The circuit court noted that this debt was incurred during the marriage, and
that “[e]ven Wife in her proposed final order to the family court allocated this debt equally
to the parties by including it as a marital debt[.]” The circuit court’s order stated that the
family court “did not provide any explanation for disregarding the agreement of the parties
and assigning the . . . debt” to Husband. Therefore, the circuit court ruled that Husband’s
student loan debt “is a marital liability subject to equitable distribution.”

              After entry of the circuit court’s order, Wife filed the present appeal.

            Our standard of review is set forth in syllabus point one of Carr v. Hancock,
216 W.Va. 474, 607 S.E.2d 803 (2004):

                     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 questions of law de novo.

               Also, with regard to alimony, this Court has held: “Questions relating to
alimony . . . are within the sound discretion of the court and its action with respect to such
matters will not be disturbed on appeal unless it clearly appears that such discretion has
been abused.” Syl., in part, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977). With
these standards in mind, we turn to the parties’ arguments.

            Wife raises two assignments of error. First, she argues that the circuit court
erred “when it reduced [the] alimony [award] from $15,000 a month to $0 a month.”



       7
         The circuit court noted that the family court’s order granting the parties’ divorce
was based on irreconcilable differences, given that Wife did not allege adultery or mental
cruelty as grounds for divorce. Therefore, the circuit court found that it was an abuse of
discretion for the family court to consider alleged infidelity in determining the alimony
award.
                                              6
Second, Wife asserts that the circuit court erred by including Husband’s student loan debt
in the marital estate. 8 We address each argument in turn.

              Wife argues that the circuit court improperly substituted its judgment for that
of the family court when it reduced the alimony award from $15,000 per month to $0.
According to Wife, the family court “worked on this case for years,” considered the
relevant factors under W. Va. Code § 48-6-301(b), and properly entered an alimony award.
Wife notes that the family court looked at all of the factors under W. Va. Code § 48-6-
301(b) in arriving at its “reasoned decision” to award her $15,000 per month in permanent
alimony.

               Conversely, Husband asserts that the circuit court correctly determined that
the family court’s alimony award was more than Wife’s stated need or request. Husband
notes that the family court found that Wife’s testimony established that her monthly living
expenses were $8,241.57. Further, Wife testified that she was only requesting an alimony
award of $5,000 per month until her children graduated high school. She never requested
a permanent alimony award, nor did she request $15,000 per month. Additionally,
Husband asserts that a permanent alimony is not warranted because Wife is forty-five years
old, has an advanced college degree, and a substantial work history. Finally, Husband
argues that the circuit court correctly ruled that the family court erred in finding that his
“alleged infidelity” contributed to the dissolution of the marriage. He argues that the
parties agreed that he did not commit adultery. 9

               After review, we agree with the circuit court’s ruling that “the permanent
[alimony] award of $15,000 [per month] . . . to Wife . . . constitutes an abuse of discretion
and error by the family court.” The circuit court’s ruling is supported by a number of
factors. First, Wife never requested a permanent alimony award, she only requested
alimony until her children graduated from high school. Additionally, Wife testified that
she is able to work, in good health, has a college degree, and a lengthy work history
including employment with Mylan Pharmaceuticals and as an office administrator with
Husband’s orthodontics practice. Next, Wife only requested $5,000 per month in
alimony—she never requested an alimony award of $15,000 per month. We find no
rationale in the family court’s order explaining why it entered a permanent alimony award
three times greater than Wife’s temporary alimony request. Further, the undisputed

       8
        Neither party contests the circuit court’s ruling that Wife receive $14,648.92 per
month in child support.
       9
         In fact, Husband asserts that the family court erred by not considering Wife’s
misconduct under the final factor in W. Va. Code § 48-6-301(b). He states that Wife
diverted $80,000 in marital funds to her mother during the marriage, yet the family court
gave this misconduct no consideration under the final factor.

                                             7
evidence established that Wife’s monthly living expenses were $8,241.57. Per the family
court’s final order, Wife would receive $15,000 per month in permanent alimony, plus
$12,711 in child support. This combined monthly amount was far greater than Wife
requested, and we cannot discern how the family court arrived at this ruling. Therefore,
we agree with the circuit court’s conclusion that the family court erred by awarding Wife
$15,000 per month in permanent alimony. 10

                While we agree with the circuit court’s conclusion that the family court’s
permanent alimony award of $15,000 per month was erroneous, we are not convinced that
the circuit court’s ruling denying Wife any alimony award was proper. The circuit court’s
ruling relies heavily on the fact that Wife’s monthly financial need, determined to be
$8,241, will be met by the child support award. While this finding is correct, and while
Wife’s monthly financial need is an important factor to consider, it must be considered
along with all of the factors contained in W. Va. Code § 48-6-301(b). Therefore, we find
it necessary to remand this case to the circuit court with directions for it to remand this
matter to the family court for consideration of whether an alimony award is proper based
on all of the factors contained in W. Va. Code § 48-6-301(b), in conjunction with our ruling
herein that the permanent alimony award of $15,000 per month was erroneous.

               Wife’s second assignment of error is that the circuit court erred by including
Husband’s student loan debt in the marital estate. Wife’s brief to this Court devotes less
than one page to this issue. She concedes that she could not find any case law on this issue.
Wife asserts that there was an agreement between the parties that the student loan was a
separate debt that Husband was responsible for, but she does not include any citation to the
record to support this argument. Further, even assuming there was no agreement, Wife
asserts that the issue is “whether it seems more reasonable than not . . . to require [Wife] to
assume the going forward cost of [Husband’s] student loans.”

              Husband argues that the circuit court did not err in ruling that the student
loan debt should be included in the marital estate. According to Husband, it was undisputed
that this debt was incurred during the marriage. In fact, Husband notes that Wife’s
proposed final order submitted to the family court included the student loan debt in the
martial estate. Additionally, Husband cites Slone v. Slone, No. 12-0620, 2013 WL
2157755 (W. Va. May 17, 2013) (memorandum decision), in which this Court affirmed a

       10
          The circuit court also concluded that the family court’s consideration of
Husband’s “alleged infidelity” under the final factor of W. Va. Code § 48-6-301(b) was
improper and “contrary to Wife’s testimony.” In support of this conclusion, the circuit
court noted that a bifurcated divorce order was granted on the ground of irreconcilable
differences. Neither adultery nor mental cruelty were alleged by Wife as grounds for
divorce. Per our review of the appendix record, we find no evidentiary support for the
family court’s conclusion that Husband’s “alleged infidelity” contributed to the dissolution
of the marriage.
                                              8
circuit court’s ruling affirming a family court’s determination in a divorce proceeding that
a student loan debt acquired during the marriage should be divided equally between the
parties.

               After review, we agree with the circuit court’s ruling that “the family court
erred and abused its discretion by determining Husband’s student loan debt [was] his
separate liability when the parties agreed that it was a marital debt.” As noted by the circuit
court, there is no dispute that this debt was acquired during the marriage. Further, both
parties agreed that this was a marital debt and included it as such in their proposed final
orders submitted to the family court. The family court’s order did not provide any
explanation for its ruling assigning this debt solely to Husband. Finally, we agree with
Husband that this Court’s ruling in Slone supports the circuit court’s ruling that the student
loan debt should be included in the marital estate.

               Based on all of the foregoing, we affirm the circuit court’s ruling that the
student loan debt be included in the marital estate. Additionally, we affirm the circuit
court’s ruling that the family court’s permanent alimony award of $15,000 per month was
an abuse of discretion. However, we reverse the circuit court’s ruling that Wife was not
entitled to any alimony award. We remand this case to the circuit court with directions for
it to remand this matter to the family court for consideration of whether an alimony award
is proper based on all of the factors contained in W. Va. Code § 48-6-301(b), in conjunction
with our ruling herein that the permanent alimony award of $15,000 per month was
erroneous. Finally, we reiterate that neither party has contested the circuit court’s ruling
that Wife receive $14,648.92 per month in child support. Therefore, that ruling is affirmed.


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


ISSUED: June 17, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

CONCURRING, IN PART, AND DISSENTING, IN PART:
Justice Margaret L. Workman




                                              9
Workman, J., concurring in part and dissenting in part:

               I concur with the majority’s conclusion that the circuit court erred in reducing
petitioner wife’s alimony from $15,000 a month to zero. The family court order addressed
each of the statutory factors for making a decision on the proper amount of alimony. If the
circuit court found such analysis inadequate, then it should have been remanded it back to
the family court for further analysis or explanation, rather than determining as a matter of
law that the wife was not entitled to one cent of alimony. Therefore, I dissent to the
majority’s conclusion that the family court’s alimony award lacked sufficient basis in the
record.

              In the instant case, the lower courts were presented with a long-term
marriage, during which the wife and respondent husband agreed that the wife would forego
her career for the purposes of raising their children and lending critical support and
development to respondent’s orthodontic practice. That the wife’s efforts were tangible
and invaluable is well-demonstrated by the financial success which the husband now
enjoys in his professional career. The husband is a successful orthodontist whose gross
annual income is approximately $1.4 million. In addition, he owns a real estate holding
company providing him approximately $120,000 annually. The wife worked to put her
husband through dental school. Later, she gave up the opportunity for career advancement
in her own field to work in the husband’s office and to promote the success of his business,
while also giving birth to their two children and caring for them when they came home
from school. When this almost twenty-year marriage ended, the husband was still bringing
in $1.4 million plus and the wife was unemployed. The wife had been absent from her
chosen field for nearly eighteen years, having dedicated all of her time and efforts to his
practice and their family. All of these facts were reviewed in detail in the section of the
family court’s order wherein it made its award of spousal support.

              The circuit court seems to have improperly justified the reduction of the
wife’s alimony to zero on several bases. Perhaps because the wife received a fairly large
amount in equitable distribution of marital assets, the circuit court seemed to indicate that
she did not need alimony. 11 The wife received a substantial award of equitable distribution
of marital property, despite the fact that it was valued substantially less than seems

       11
           On appeal to the circuit court, however, there were multiple issues relative to
equitable distribution which were decided substantially in the husband’s favor, thereby
reducing the wife’s effective equitable distribution. The allocation of credit for a 2011 tax
refund to husband was reduced significantly from $179,887 to $50,453 and his student loan
was redesignated as marital property, instead of his separate debt. In addition, the family
court utilized the husband’s valuation of the orthodontic practice, settled on the husband’s
suggested date of valuation of the holding companies, and obtained a favorable allocation
of debt regarding certain personal property.

                                              10
reasonable due to the wife’s expert’s failure to comply with May v. May, 214 W. Va. 394,
589 S.E.2d 536 (2003) in her evaluations. However, alimony and equitable distribution
are conceptually and practically different. The husband was not expected to pay his daily
living costs from his portion of the equitable distribution. In fact, according to the record,
the husband’s orthodontic business will continue to bring in around $1.4 million a year, as
well as about $120,000 from his real estate holdings. But with the zero-alimony award,
the wife would have to live off her equitable distribution.

                Next, the circuit court apparently felt that the wife’s support should come at
least partially from funds awarded for child support. The circuit court’s order plainly states
that the wife failed to demonstrate that she had a financial need “over and above child
support amount calculated.” However, it is clear that the child support award must be
considered and used exclusively for the benefit of the minor children and not as
contribution to the wife’s individual expenses. See Lang v. Iams, 201 W. Va. 24, 27, 491
S.E.2d 24, 27 (1997) (“[T]he duty of a parent to support a child is a basic duty owed by the
parent to the child[.]); Lambert v. Miller, 178 W. Va. 224, 230, 358 S.E.2d 785, 791 (1987)
(observing that child support awards correspond with needs of child); accord Wolfburg v.
Wolfburg, 606 A.2d 48, 52 (Conn. 1992) (“Alimony is payment for support of a former
spouse and child support is payment for support of a minor child. . . . [T]he two must be
kept separate when the court determines the appropriate awards as to each[.]”).

              In this case, any excess over and above the children’s necessary, daily living
expenses is plainly in recognition of the enhanced lifestyle the children enjoyed, which
must be maintained, rather than attributable as de facto spousal support: “[C]hildren should
enjoy the level of living they would experience if both their parents were together.” Ball
v. Wills, 190 W. Va. 517, 523, 438 S.E.2d 860, 866 (1993). In fact, “[a] court has the
discretion in appropriate cases, where all the children’s day-to-day needs are being
sufficiently met such that, with due consideration of their ages, they are living as well as
their parents, to direct that a portion of a child support increase be invested for future
educational or other needs of the children.” Id. at 524 n.6, 438 S.E.2d at 867 n.6 (emphasis
added). In recognition of this balancing act, the family court in this case directed that some
portion of the child support award be invested for future educational purposes. 12

       12
          Although use of the child support amounts for the wife’s expenses is improper, it
is noteworthy that the circuit court failed to appreciate that $5,000.00 of the child support
award would be set aside for the children’s education, thereby reducing the amount
available for the daily needs of the children. Despite referencing this set-aside in its order,
the circuit court later characterized this $5,000 as “an additional” sum to be paid by the
husband and credited it to the wife as potential monies if they are unused: “Presumably if
the funds are not used by the minor children for education they will revert to Wife as tax
free moneys.” In any event, consideration of the child support funds or any future
hypothetically unused monies is inadequate to ensure a proper award of present spousal
support.
                                              11
                In addition to conflating the child support funds with the wife’s living
expenses, the circuit court considered that the wife requested neither permanent alimony
nor the exact amount awarded by the family court, but rather only $5,000 a month until the
children graduated from high school. Despite this request, the wife testified that her
reasonable monthly expenses were $8,241.57 per month. 13 In light of that testimony, the
family court held that she did have a monthly need for alimony, as well as an amount
beyond the alimony award to cover the taxes on her alimony so that she can meet her
monthly living. The family court further noted the “comfortable lifestyle” the parties
enjoyed during the marriage and that the husband’s income would adequately maintain that
lifestyle for each. By that determination as well as the other statutory factors, it then
increased the $5,000 to $15,000 and placed no time limitation on the award, as was within
its discretion in view of the exhaustive description of the contributions and sacrifices the
wife made while the husband was developing his successful practice. The family court
was careful to note that the wife “went above and beyond what a reasonable wife would do
to assist the [husband] in growing his orthodontic practice[.]”

              These errors notwithstanding, I do agree that the evidence of infidelity in the
record was inadequate to alone justify the award. Because the family court’s order made
only vague intimations of alleged infidelity, the circuit court correctly held that formal
allegations of infidelity had neither been made nor sufficiently proven. However, to be
clear, the family court’s reference to the husband’s “contact with another woman who was
not [respondent’s] wife” which led to the dissolution of the marriage was permissible under
West Virginia Code § 48-6-301(b)(20), which allows consideration of “[a]ny other factors
as the court determines necessary or appropriate to consider in order to arrive at a fair and
equitable grant of spousal support and separate maintenance.” Further, West Virginia Code
§ 48-8-104 requires that

                       [i]n determining whether spousal support is to be
               awarded, or in determining the amount of spousal support, if
               any, to be awarded, the court shall consider and compare the
               fault or misconduct of either or both of the parties and the effect
               of the fault or misconduct as a contributing factor to the
               deterioration of the marital relationship.




       13
         Given the wife’s stated monthly expenses and the parties’ prior standard of living,
counsel’s request for less than her stated expenses was inadequate in the context of these
facts. See W. Va. Code § 48-6-301(a) (providing that where the parties “have executed an
agreement which . . . the court finds . . . not to be fair and reasonable[,] . . . the court shall
proceed to resolve the issues outstanding between the parties.”
                                               12
(emphasis added). The husband emphasizes that the divorce was obtained on grounds of
irreconcilable differences, however, it is abundantly obvious that the specter of marital
misconduct was present in the proceedings such that the family court felt confident in
discussing it in its spousal support order. 14

              On a larger scale, this case merely underscores the need for more reliable and
consistent spousal support awards. Although the statutory factors set forth by the
Legislature appear comprehensive in terms of relevant considerations, the subjective
consideration of these factors by statewide family court judges yields little parity. “Broad
judicial discretion contributes to the unpredictability of spousal support outcomes, and
unpredictability presents significant difficulties for nearly everyone involved in a divorce
case, including the divorcing spouses, lawyers, judges, and state legislatures.” Gunn,
Gregory N., Spousal Support Awards in Utah: An Alternative Approach, 13 J. L. & Fam.
Stud. 379, 380 (2011). The most obvious means by which to ensure greater uniformity in
spousal support awards is by establishment of an equitable formula. Use of a formula
would provide across-the-board benefits. As one commentator has observed:

              A formulaic approach to spousal support would lower the legal
              costs of a divorce by allowing the parties to accurately estimate
              the court's determination of spousal support prior to ever
              entering a courtroom. The parties could thereby avoid the
              attorney fees associated with that issue. A formulaic approach
              would help attorneys provide clients with clear legal advice
              about what a court is likely to award in spousal support. The
              courts would also benefit by avoiding the nearly impossible
              task of accurately weighing the facts of each case and fairly
              arriving at a spousal support award. Overall, spousal support
              would finally be based on a more definite standard (the
              formulaic statute) that would facilitate a perception of fairness
              across cases.

Id. at 381. As Chief Justice in 2011, I created a committee to study whether alimony
guidelines could bring greater parity and coherence to the decisions of the family courts
around the state. That committee never presented a formal report to this Court. However,
it has recently come to my attention that the committee did submit a draft report to the
administrative office which was, for reasons unknown, never provided to the Court. The
draft of that set of proposals shows that a resounding majority of practitioners had
experienced inconsistency in alimony awards in cases with similar facts and agreed that

       14
         The brief testimony in the hearing transcript regarding this “contact” with another
woman certainly suggests that it was previously discussed in greater detail, providing
context for the abbreviated discussion.

                                             13
non-binding guidelines would aid in advising their clients and avoiding litigation. A
majority of family court judges likewise were in favor of non-binding guidelines. 15

               I urge the continued consideration 16 of the efficacy of the establishment of a
formula which would all but eliminate the need for speculating on the basis of spousal
support awards. These would only be guidelines, not mandatory dictates, and the
legislature’s directive on the factors to be considered would have continued viability, as
well as keeping the discretion of the family courts intact.

              For the foregoing reasons, I respectfully concur in part and dissent in part to
the majority’s decision.




       15
          The guidelines proposed in the draft report included the use of computer software
calibrated to West Virginia’s statutory criteria, utilizing the input of any “objective and
quantifiable components” and then permitting upward or downward adjustment based on
the particular facts of a case. In all instances, however, the recommended guidelines would
leave the ultimate issue of whether a spousal support award should be ordered at all in the
sound discretion of the family court.
       16
          In 2017, Senate Bill 243 proposed an amendment to West Virginia Code § 48-6-
301, which would permit the court to utilize a worksheet to calculate alimony in lieu of the
statutory factors. The Committee Substitute which passed the Senate made use of the
worksheet mandatory, but permitted deviation from the calculated amount for “good cause
shown,” as specifically included in written findings. The bill was sent to the House of
Delegates and referred to the Judiciary Committee, where no further action was taken.
                                             14
