                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                          FILED
AMY W.,
Petitioner Below, Petitioner                                        September 25, 2015
                                                                        released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
vs) No. 14-0209 (Kanawha County 11-D-1176)                            SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

TRAVIS W.,

Respondent Below, Respondent



                              MEMORANDUM DECISION


               The petitioner, Amy W.,1 by counsel Tim Carrico, appeals the January 24,
2014, order of the Circuit Court of Kanawha County affirming an April 11, 2012, final
divorce order entered by the Family Court of Kanawha County that awarded reimbursement
alimony to the respondent Travis W. in the amount of $166,847.15. In this appeal, Amy W.
contends that the family court erred in calculating the reimbursement alimony award by
failing to take into consideration evidence that she used student loans to pay the costs of her
advanced education and to replace the income the parties lost as a result of her
unemployment while she attended graduate school. Travis W., by counsel Allyson E.
Hilliard, filed a response maintaining that the family court committed no reversible error.

               Upon review of the parties’ arguments, the appendix record, and the pertinent
authorities, we reverse the final order and remand this case to the family court for further
proceedings to the extent necessary to recalculate the reimbursement alimony award. This
case does not present a new or significant question of law and, therefore, satisfies the
“limited circumstance” requirement of Rule 21(d) of the Rules of Appellate Procedure. As
such, it is properly disposed of through this memorandum decision.

            The parties were married on November 25, 1994, in Sevier County, Utah.
They have two children, a son born December 11, 2000, and a daughter born September 13,


       1
         In sensitive matters, we use the parties’ last initials rather than their full surnames.
See In re Emily, 208 W.Va. 325, 329 n.1, 540 S.E.2d 542, 546 n.1 (2000); see also W.Va.
R. App. P. 40(e).

                                               1

2003. In March 2009, the family moved to West Virginia from Utah in order for Amy W.
to attend Mountain State University to obtain her master’s degree to become a nurse
anesthetist. Before moving to West Virginia, Amy W. had been employed in Utah as a
registered nurse earning approximately $40,000.00 annually. After the parties relocated to
West Virginia, Amy W. attended Mountain State University on a full-time basis. Travis W.,
an engineer, secured employment, earning an annual salary of $69,450.00.2 Amy W.
received her master’s degree on May 13, 2011, and filed a petition for divorce on June 13,
2011. Thereafter, she moved to Idaho where she is now employed as a nurse anesthetist with
an annual salary of at least $135,000.00. Travis W. still resides in West Virginia and is the
primary custodial parent of the parties’ two children.3

              Prior to the final divorce hearing, Travis W. filed a request with the family
court for reimbursement alimony pursuant to Hoak v. Hoak, 179 W.Va. 509, 370 S.E.2d 473
(1988). Syllabus point two of Hoak states:

                      The trial judge in a divorce proceeding may in an
              appropriate case award reimbursement alimony to a working
              spouse who contributed financially to the professional education
              of a student spouse, where the contribution was made with the
              expectation of achieving a higher standard of living for the
              family unit, and the couple did not realize that expectation due
              to divorce.

Id. at 510, 370 S.E.2d at 474. Travis W. asserted that the purpose of Amy W. returning to
school to obtain a master’s degree was to increase the standard of living for their family.
Travis W. further averred that while Amy W. was an unemployed graduate student, he was
working full-time and was the family’s sole source of financial support. Travis W. requested
reimbursement alimony in the amount of $166,847.15, which he indicated was one-half of
the parties’ total living expenses during the time period that Amy W. was attending Mountain
State University. In support of his request, Travis W. submitted the parties’ joint bank
account statements detailing the parties’ monthly living expenses. He also submitted
documentation showing that the parties took early distributions from their retirement
accounts to pay for the expenses they incurred in moving to West Virginia.


       2
       Travis W. had also been employed as an engineer in Utah earning approximately
$75,000.00 annually.
       3
      Pursuant to the final divorce order, Amy W. pays monthly child support in the
amount of $1,422.13.

                                             2

                During a hearing before the family court on November 2, 2011,4 Amy W.
testified that she had obtained student loans totaling approximately $229,000.00 to fund her
graduate education. She stated that $77,752.90 of that amount was used to pay her tuition
and expenses and that the remainder was deposited into the marital bank accounts between
March 2009 and May 2011 to replace her lost income while she obtained her degree.
Following the final hearing, the family court granted Travis W.’s reimbursement alimony
request and ordered Amy W. to reimburse him in the amount of $166,847.15 through
$2,000.00 monthly installments for a period of six years and eleven months commencing
October 1, 2011.5

                Amy W. appealed this decision to the circuit court, asserting that she had
introduced substantial evidence that she funded the marital bank accounts with money
obtained through her student loans while she was in graduate school; that she is now one
hundred percent responsible for repaying the loans pursuant to the final divorce order; and
that the family court failed to take these facts into consideration when calculating the
reimbursement alimony award granted to Travis W. Upon review, the circuit court rejected
Amy W.’s assertions, stating in its final order that “[n]one of the petitioner’s allegations are
supported by the record. Specifically, petitioner introduced no documentary evidence at the
trial that she funded anything.” (Emphasis added).

              Our standard of review for matters arising in divorce cases was set forth in the
syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), as follows:

                        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.




       4
        The parties appeared before the family court for the final divorce hearing on
November 2, 2011. Amy W., who was representing herself at that juncture, participated in
the hearing by telephone call from Idaho. At the end of that hearing, the family court decided
to give the parties additional time to supplement their financial statements. The parties
appeared before the family court again on January 4, 2012. Thereafter, the family court
issued the final divorce order.
       5
           Amy W. also made a claim for alimony that was denied in the final divorce order.

                                                 3

               Recognizing that reimbursement alimony must be determined on a case-by-case
basis given its fact specific nature, this Court has chosen not to adopt a particular method for
calculating the amount that may be awarded. Hoak, 179 W.Va. at 515, 370 S.E.2d at 479.
However, we have made clear that the purpose of reimbursement alimony is “to repay or
reimburse the supporting spouse for his or her financial contributions to the professional
education of the student spouse.” Id. at 513, 370 S.E.2d at 477. In other words,
“[r]eimbursement alimony is an adjustment aimed at repaying the supporting spouse for
financial contributions that enhanced the student’s spouse’s income-earning ability.” Id. at
514, 370 S.E.2d at 478. As such, reimbursement alimony should be “based on the actual
amount of contributions.” Id. at 513, 370 S.E.2d at 477.

               Upon review, we find that the lower courts committed reversible error by
failing to consider the evidence presented by Amy W. that showed that she obtained student
loans to replace the income the parties lost when she quit working in order to attend graduate
school on a full-time basis. The record shows that Amy W. used the student loan money not
only to pay for her school tuition and expenses, but also to fund the parties’ joint bank
accounts. Inexplicably, the decisions of lower courts were based upon the erroneous
conclusion that Amy W. failed to submit documentary evidence to support her claims. The
record simply does not support that conclusion. Rather, the record reflects that Amy W.
submitted documentation of her student loans to the family court on September 2, 2011.
Moreover, the marital bank account statements submitted to the family court by Travis W.
show regular deposits of “Mountain State Refund” checks during the time period that Amy
W. was attending Mountain State University. In addition, Amy W. testified in great detail
during the November, 2, 2011, hearing regarding the use of her student loan money. When
questioned about the matter, Travis W. acknowledged that Amy W. had obtained at least
$180,000.00 through student loans while she attended Mountain State University. Thus, the
evidence established that although Amy W. was an unemployed student, she was not
dependent upon financial contributions from Travis W. in order to obtain her degree and that
she funded the parties’ marital bank accounts with money obtained through student loans.

               Given the fact that Amy W. is now solely responsible for repaying her student
loans pursuant to the final divorce order, we find that the family court erred by awarding
reimbursement alimony to Travis W. in the amount of $166, 847.15. Therefore, the January
24, 2014, final order of the Circuit Court of Kanawha County affirming the April 11, 2012,
family court order is reversed. However, because there is no dispute that the parties
liquidated their retirement accounts to facilitate their move to West Virginia so that Amy W.
could attend Mountain State University, we further find that Travis W. is entitled to




                                               4

reimbursement alimony in an amount equal to one half of those retirement funds.6 Because
we cannot ascertain the exact amount of retirement funds that were liquidated by the parties
based on the record before us, we remand this case to the family court for further proceedings
to the extent necessary to recalculate the reimbursement alimony award consistent with our
decision herein.

                                                     Reversed and remanded with directions.




ISSUED: September 25, 2015

CONCURRED IN BY:

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

DISQUALIFIED:

Justice Brent D. Benjamin.




       6
        Amy W. concedes in her brief that Travis W. is entitled to reimbursement alimony
for one-half of the retirement funds liquidated by the parties. She maintains that she has
already paid Travis W. reimbursement alimony in an amount greater than one-half of the
retirement funds and, therefore, she is entitled to a refund to the extent that she has overpaid.
This is a matter for the family court to resolve upon remand.

                                               5
