                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Bobby Farmer,
Petitioner Below, Petitioner                                                      FILED
                                                                            November 3, 2014
vs) No. 14-0105 (Logan County 06-D-250)                                      RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Brenda Carol Farmer,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Bobby Farmer, by counsel Mark Hobbs, appeals the January 7, 2014, order of
the Circuit Court of Logan County that affirmed the March 11, 2013, final order of the Family
Court of Logan County which awarded petitioner’s ex-wife, Respondent Brenda Carol Farmer,
permanent spousal support. Mrs. Farmer, by counsel M. Timothy Koontz, filed a response in
support of the circuit court’s order.

        This 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. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

      The parties met in August of 1994 and began cohabiting soon thereafter. They married on
October 21, 1996, and separated nine and one-half years later, on April 1, 2006, when Mr.
Farmer left Mrs. Farmer to cohabit with another woman. No children were born of the marriage.

        Mr. Farmer filed for divorce on May 1, 2006. The family court held four hearings on the
matter in 2007. By final order entered February 3, 2009, the family court granted the divorce on
the ground of irreconcilable differences and awarded Mrs. Farmer permanent spousal support in
the amount of $1,200 per month, effective December 15, 2007. Mr. Farmer appealed to the
circuit court on the ground that the family court failed to follow the requirements of West
Virginia Code §§ 48-6-301(1) to -301(20) by considering only one of the twenty factors to be
considered in awarding spousal support and, further, failed to complete the three-step equitable
distribution analysis required by West Virginia Code § 48-7-103. On October 28, 2010, the
circuit court remanded the case to the family court for further consideration of the spousal
support award.

        Following the remand, the family court entered its second final order on March 11, 2013
(“the final order”) which, like the previous award, also required Mr. Farmer to pay Mrs. Farmer
$1,200 per month in permanent spousal support. The family court based the award on its finding
that, during the parties’ marriage, Mr. Farmer engaged in adultery and appropriated nearly all of
Mrs. Farmer’s premarital savings and assets which left Mrs. Farmer with no financial security.


                                                1

       Mr. Farmer appealed the family court’s final order to the circuit court. Following a
September 17, 2013, hearing on the matter, the circuit court affirmed the family court’s final
order on January 7, 2014. Mr. Farmer now appeals the circuit court’s order.

       We review a circuit court’s ruling on a final family court order 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 questions of law de novo.

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

        Mr. Farmer raises two assignments of error on appeal. Mr. Farmer first argues that the
circuit court erred in ordering him to pay Mrs. Farmer permanent spousal support given that (1)
punishment is not a valid reason to award spousal support; (2) the parties were married for only
nine and one-half years; and (3) Mr. Farmer’s income—which includes a pension, black lung
benefits, and disability benefits—was earned when Mr. Farmer worked as a coal miner prior to
the parties’ marriage.

       The record on appeal reveals that the family court considered various factors found in
West Virginia Code § 48-6-301(b)—including the length of the parties’ nine and one-half year
marriage—in finding that Mrs. Farmer’s permanent spousal support award was justified. The
family court also found that Mrs. Farmer’s permanent spousal support award was justified
because, during the marriage, Mr. Farmer engaged in adultery and appropriated nearly all of Mrs.
Farmer’s premarital savings and assets. Pursuant to West Virginia Code § 48-8-104,

       [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.

(Emphasis added.) Importantly, on appeal, Mr. Farmer does not contest the following findings in
the family court’s final order.

       [Mrs. Farmer] came into the marriage as an economically secure widow, with a
       fully paid home worth about $120,000 and about $100,000 in the bank. During
       the marriage, [Mrs. Farmer] pooled her assets with those of [Mr. Farmer], and by
       the time the parties had separated her [total] assets had dwindled down to about
       $30,000. Immediately after separation, [Mr. Farmer] took $24,000 from the
       parties’ bank accounts, leaving [Mrs. Farmer] with essentially none of the value
       of the assets that she brought into the marriage.



                                                2

Likewise, Mr. Farmer does not contest the family court’s other findings, which include the
following: (1) The demise of the marriage was brought about by Mr. Farmer’s adultery during
the marriage. (2) Just after the parties separated, Mr. Farmer expended Mrs. Farmer’s assets on
his new sexual partner by taking her on vacation to Tennessee. (3) The parties cohabited for two
years before they were married and were married for nine and one-half years. Therefore, the
parties’ relationship was “sufficiently lengthy” to support a permanent spousal support award.
(4) Mr. Farmer’s income is $4,200 per month. (5) The disparity in the parties’ monthly incomes
supported a permanent spousal support award.

        In Syllabus Point 4 of Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996), this
Court stated that a spousal support award may be based on fault and/or to reimburse an injured
spouse.

       In appropriate circumstances, an enhancement of an award of
       maintenance/alimony based on the degree of fault is justified. Enhancement of a
       maintenance/ alimony award by a fault premium may be awarded when additional
       support is required to reimburse the injured spouse for expenses directly related to
       the fault or to assure that the injured spouse continues to have the standard of
       living enjoyed during the marriage. A fault premium may also be applied to
       discourage the fault or behavior that contributed to the dissolution of the
       marriage. In determining an award of maintenance/alimony enhanced by a fault
       premium, the circuit court must consider the concrete financial realities of the
       parties.

Id. at 367, 475 S.E.2d at 459.

       Finally, we find that Mr. Farmer’s argument—that he should not have to pay spousal
support because he earns his current income from disability payments based on his pre-marital
employment—is without basis in the law. Pursuant to West Virginia Code § 48-6-301(b)(3), a
family court is required to look at the parties’ “present employment income and other recurring
earnings of each party from any source.” (Emphasis added.) Therefore, the source of Mr.
Farmer’s income in this case was not relevant to the family court’s review.

        Mr. Farmer’s second assignment of error is that the family court erred in finding that
Mrs. Farmer’s monthly income was $880 per month, when it was—in fact—$1,303.70 per
month, or $991 per month in disability benefits, plus $312.70 from her share of Mr. Farmer’s
black lung benefits.

        The record on appeal shows that, in 2007, when the family court held its hearings on
spousal support, Mrs. Farmer was, in fact, receiving $880 each month in disability benefits;
thereafter, those benefits increased to $991 per month. Therefore, the trial court did not err in
finding that, in 2007, Mrs. Farmer’s income was $880 per month. Importantly, in 2007, Mr.
Farmer was also receiving less income than he is now. The family court relied upon both parties’
2007 incomes in determining the amount of Mrs. Farmer’s spousal support award. As a result,
Mr. Farmer was not prejudiced by the $880 finding.



                                                3

       For the foregoing reasons, we affirm.
                                                    Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

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




                                               4

