          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2013 Term

                                   _______________                       FILED
                                                                          April 19, 2013
                                                                      released at 3:00 p.m.
                                     No. 11-1270                    RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
                                   _______________                     OF WEST VIRGINIA




                                    MELINDA H.,

                              Respondent Below, Petitioner


                                           v.

                                 WILLIAM R., II,

                          Petitioner Below, Respondent

          _______________________________________________________

                     Appeal from the Circuit Court of Tyler County

                     The Honorable David W. Hummel, Jr., Judge

                               Civil Action No. 02-D-53


               REVERSED AND REMANDED WITH DIRECTIONS
          _______________________________________________________

                              Submitted: February 5, 2013
                                 Filed: April 19, 2013

Brent Wolfingbarger, Esq.                         David C. White, Esq.
Pleasants Law Firm, PLLC                          Law Office of Neiswonger and White
Washington, D.C.                                  Moundsville, West Virginia
Attorney for the Petitioner                       Attorney for the Respondent




CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “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).



              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 (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.” Syl. pt. 4, Porter v. Bego, 200 W. Va. 168, 488 S.E.2d 443 (1997).



              3.     For the purpose of determining child support, either not attributing

income or attributing income to a parent who is a full-time caregiver to a minor child

based on full-time employment at the federal minimum wage alone does not constitute a

circumstance that would make attribution of income to the other parent based on previous

earnings inequitable under W. Va. Code § 48-1-205(c)(4).


                                             i
              4.     “A family [court] or circuit court may not attribute income to a

parent who is unemployed or under-employed because the parent has chosen to devote

time to care for children (including those who are above pre-school age or those to whom

the parties do not owe a joint legal responsibility for support) under circumstances in

which a reasonable, similarly-situated parent would have devoted time to care for the

children had the family remained intact or, in cases involving a non-marital birth, had a

household been formed.” Syl. pt. 6, State ex rel. W.Va. DHHR v. Gibson, 207 W. Va.

594, 535 S.E.2d 193 (2000).



              5.     “When a family [court] or a circuit court, in the exercise of

discretion, chooses to attribute income to a parent who is providing care to children, there

must be a full explanation on the record why it is in the best interests of the children that

the parent be employed rather than providing care to the children.” Syl. pt. 7, State ex rel.

W.Va. DHHR v. Gibson, 207 W. Va. 594, 535 S.E.2d 193 (2000).




                                             ii
Benjamin, Chief Justice:


              Petitioner Melinda H.1 appeals the August 2, 2011, order of the Circuit

Court of Tyler County that refused her petition for appeal from the April 20, 2011,

Modification Order of the Family Court of Tyler County. The family court’s order, inter

alia, decreased the child support obligation of Respondent William R., II after he

voluntarily quit a well-paying job with benefits to take a $10 per hour, part-time position

with a company owned by his fiance’s mother. Because we find that the family court

used the incorrect legal standard in deciding the issue of income attribution, we reverse

and remand with directions.


                                        I. FACTS


              The facts as found by the family court are as follows.2 The parties,

Petitioner Melinda H. (“the mother”) and Respondent William R., II (“the father”), were

divorced on November 14, 2002. The parties have two children: C.P.R., born on

December 17, 1991, and D.S.R., born on October 12, 1995. C.P.R. has reached the age of

majority and has graduated from high school. At the time of the divorce, the parties

agreed that the father would pay child support for the two children in the amount of $700


1
  Consistent with this Court’s practice of protecting the identity of juveniles in sensitive
matters, we identify the last names of the parties and family members in this case by their
initials only.
2
  The transcript of the hearing before the family court is not included in the appendix
designated by the parties.

                                             1

per month.3 The order also included a provision requiring the parties to advise each other

as financial circumstances changed if the “change of gross income was 15% or greater.”



                On August 5, 2010, the father filed a Petition to Modify Child Support

asserting that the eldest son had been emancipated and that the father’s employment

income had changed. With regard to the change in employment, until August 2010, the

father had been employed at a business called Momentive Performance Materials

(“Momentive”) and its predecessors-in-interest for 17 ½ years as a production specialist.

During his employment with Momentive, the father earned an MBA degree. The family

court found that for the period ending August 8, 2010, the father had year-to-date

earnings of $52,147, and the most current pay stub reflected a then current monthly salary

of $6,919.48.



                The father testified before the family court that he is now employed by a

business known as Marble King at $10 per hour and works approximately twenty hours

per week.4 According to the father, the stress of working at Momentive was destroying

his quality of life and causing him physical ailments such as loss of appetite and sleeping

disorders, and other problems including racing thoughts and depression. He further

indicated that he had been prescribed medications to deal with these issues by his medical

3
  According to the mother’s brief, in approximately July, 2006, the father unilaterally
began paying the mother $850 a month in child support.
4
    Marble King produces and manufactures marble for various industrial uses.

                                             2

doctor. The family court noted, however, that the father did not offer any evidence to

corroborate this testimony.     The father also informed the court that he is currently

engaged to the daughter of the owner of Marble King. The father testified of his belief

that at some point he may be able to run Marble King or at least share that role with his

fiance. Finally, the father recommended that the family court attribute income to him for

child support purposes based on his hourly rate of $10 for a forty-hour work week.



              The family court adopted the father’s recommendation and determined his

child support based on an income of $10 an hour at 40 hours per week. As a result, the

family court reduced the father’s child support to $332 per month, based on the statutory

guidelines. The mother appealed the family court’s ruling to the circuit court, and the

circuit court refused the petition for appeal in a one-page order. The mother now appeals

the circuit court’s order to this Court.



                              II. STANDARD OF REVIEW

              As noted above, the circuit court refused the mother’s petition for appeal

from the family court’s order. We have explained:

                     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.



                                            3

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

we now proceed to consider the issues before us.



                                  III. DISCUSSION

             On appeal, the mother assigns as error the family court’s failure to attribute

an earning capacity to the father based on his previous income at Momentive pursuant to

W. Va. Code § 48-1-205(b) (2008), which states:

             (b) 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. If the
             obligor’s work history, qualifications, education or physical
             or mental condition cannot be determined, or if there is an
             inadequate record of the obligor’s previous income, the court
             may, as a minimum, base attributed income on full-time
             employment (at forty hours per week) at the federal minimum
             wage in effect at the time the support obligation is
             established. In 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.



             Our seminal case on income attribution for child support purposes is Porter

v. Bego, 200 W. Va. 168, 488 S.E.2d 443 (1997). In Porter, this Court affirmed the lower

court’s attribution of income to the appellant based on his previous salary and the


                                            4

potential income from his savings where the father voluntarily quit his job and reduced

his interest income by disposing of $90,000 in savings. In Syllabus Point 4 of Porter, we

defined “attributed income” 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, is working
               below full earning capacity, or has non-performing or under-
               performing assets. [W. Va. Code § 48-1-205 (2008)].5
               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.

(Footnote added.)6


5
    According to W. Va. Code § 48-1-205(a),

                       “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.
6
  The original provisions governing attribution of income were found in the Code of State
Rules. In 1996, the Legislature enacted new code sections to standardize the system for
calculating child support obligations. At that time, W. Va. Code § 48A-1A-3 was enacted
to govern income attribution for child support purposes. See Porter, supra. The statute
has been amended several times including in 1997, 2001, and most recently in 2008. The
applicable statute is now W. Va. Code § 48-1-205. In addition to making minor stylistic
changes over the years, the Legislature has amended the statute to permit the attribution
                                                                          (continued . . . )
                                              5

              Also in Porter, this Court recognized the three-part test, set out in

subsection (b) of W. Va. Code § 48-1-205 above, that a family court must consider in

deciding whether to attribute employment income. With regard to the third part of the test

concerning what a “reasonably prudent person” would do in the same circumstances, this

Court stated that “[e]ssentially, a family . . . court should examine what a reasonable,

similarly-situated parent would have done had the family remained intact[.]” Porter, 200

W. Va. at 176, 488 S.E.2d at 451.



              In the instant case, this Court’s examination of the conclusions of law made

by the family court in its modification order indicates that the family court erred in failing

to apply to the facts of this case the three-part test articulated in W. Va. Code § 48-1­

205(b) and recognized by this Court in Porter v. Bego.7 When this Court applies the

three-part test, we find first that the father voluntarily left his employment at Momentive

so as to be employed below his full earning capacity at Marble King. Second, we

determine that the father is available for full-time work for which he is fitted by prior

training and experience. Finally, we conclude that a reasonable father whose ex-wife is a


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.”
7
  With regard to the reasonably prudent person standard, the family court noted only that
“[c]ounsel for mother advocated a ‘reasonable and prudent’ person type standard,
however it was advanced as though built upon the supposition that no ‘reasonable and
prudent’ person would do anything other than strive for that next dollar.”

                                              6

full-time caregiver to the parties’ minor child would not have left his well-paying job at

Momentive to accept a job earning $10 an hour and working approximately twenty hours

per week.



              However, W. Va. Code § 48-1-205(c) provides that income shall not be

attributed if any of four conditions exist. Three of these conditions potentially come into

play in the instant case. The first such condition is set forth in W. Va. Code § 48-1­

205(c)(2), which states:

              (c) Income shall not be attributed to an obligor who is
              unemployed or underemployed or is otherwise working below
              full earning capacity if . . . .
              (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[.]

The father suggests to this Court that his previous income at Momentive should not be

attributed to him because of his long-term economic plan in accepting employment at

Marble King. This Court has indicated that the standard for determining this issue is

whether the parent’s endeavor is part of “a plan of economic self-improvement which

will result, within a reasonable time, in an economic benefit to the children[.]” Johnson v.

Johnson, 200 W. Va. 28, 31, 488 S.E.2d 28, 31 (1997) (citations omitted).




                                             7

              Our examination of the evidence adduced below leads us to conclude that

the father’s employment at Marble King will not result, within a reasonable time, in an

economic benefit to his minor child who will turn eighteen years of age in October, 2013.

The father’s future mother-in-law, who owns Marble King, testified that although her

daughter will inherit the business, she has no plans to turn the business over to her

daughter now or in the foreseeable future. Further, the present agreement between the

father and the mother-in-law is not going to result in the father’s earning any appreciable

increase in money any time soon, in that he earns a very small percentage of the profits

from any contracts he brings in, and the evidence below was that this is not going to

result in more than a few thousand dollars here and there on a sporadic basis. Therefore,

the father failed to meet the statutory requirement that he is pursuing a plan of economic

self-improvement which will result, within a reasonable time, in an economic benefit to

his minor child.



              The second condition which will relieve an obligor from attribution of

income is found in W. Va. Code 48-1-205(c)(3). According to this code section,

              (c)     Income shall not be attributed to an obligor who is
              unemployed or underemployed or is otherwise working below
              full earning capacity if. . . .
              (3) The parent is, for valid medical reasons, earning an
              income in an amount less than previously earned[.]

The father testified below to medical and/or psychological problems arising from his

employment with Momentive.



                                            8

              This Court previously considered the operation of this code section in

Porter, supra, in which the appellant claimed that he was forced to quit his mining job

because of a sleep disorder. This Court characterized the medical evidence in the family

court proceeding as follows:

                      The appellant testified that he felt on edge, that he
              continued to doze off and that he was having problems and
              stress caused by the back-and-forth driving. This prompted
              him to visit several doctors. He told his doctors that it was
              “just too much,” that “I just can’t do it anymore” because
              “I’m going to end up falling asleep on the job” and causing a
              serious accident. Therefore . . . he quit his job at the mine.
              Since that date he has worked various odd jobs, including as a
              stock clerk at a local grocery store.
                      Three expert witnesses testified and medical records
              were introduced showing that the appellant visited various
              doctors complaining of indigestion, gastritis, and a burning
              sensation in the middle of his stomach. The appellant was
              diagnosed as having a generalized anxiety disorder and some
              depressed moods, such that he would not always react to
              situations properly. The appellant also complained to the
              doctors of difficulty sleeping during the day and, conversely,
              of problems staying awake while working at night. The
              physicians gave their opinions that stress, shift work, and
              poor eating habits were at the heart of his problems.
                      However, on cross-examination, it became clear that
              none of the appellant’s expert witnesses gave an opinion that
              the appellant was required to quit his shift work at the mine
              for health reasons. As an example, the appellant’s counselor
              testified that it was the appellant’s opinion that his sleep
              problems were likely to cause an accident. The counselor
              testified that, even though the appellant had an adjustment
              disorder diagnosis, the appellant could “work any job.”

200 W. Va. at 172, 488 S.E.2d at 447 (footnote omitted) (emphasis in original). After

reviewing this evidence, this Court found substantial evidence in the record to support the

conclusion of the lower court that the appellant “voluntarily, without just cause,” quit his


                                             9

mining job, and that the medical evidence produced by the appellant was insufficient to

support the conclusion that the appellant was forced to quit his job for medical reasons.

200 W. Va. at 176, 488 S.E.2d at 451. See also State ex rel. W.Va. DHHR v. Gibson, 207

W. Va. 594, 535 S.E.2d 193 (2000) (rejecting parent’s claim that he did not work for

certain time period because he was disabled and/or unable to be fully employed, where

parent did not produce any medical records or disability determinations from any

agencies to show he was unable to seek work).



             In the instant case, the father’s testimony of medical and/or psychological

problems was wholly unsupported by expert and/or objective documentary evidence.

Therefore, based on our prior cases, we conclude that the father failed to show that his

earning capacity should not be based on his previous income as a result of valid medical

reasons.



             The third condition which will relieve an obligor from attribution of income

is found in W. Va. Code § 48-1-205(c)(4), which provides:

             (c)     Income shall not be attributed to an obligor who is
             unemployed or underemployed or is otherwise working below
             full earning capacity if . . .
             (4)     The court makes a written finding that other
             circumstances exist which would make the attribution of
             income inequitable: Provided, That in such case the court
             may decrease the amount of attributed income to an extent
             required to remove such inequity.




                                           10

In this case, the family court found that it would be inequitable to base the father’s

earning capacity on his previous income while basing attributed income to the mother on

full-time employment at the federal minimum wage.8 Specifically, the family court

explained,

                    This Court had also requested counsel to specifically
             address the instant circumstances as when the support obligee
             has voluntarily remained unemployed thus reducing the
             income resources available to the parties’ children, without
             any reason now advanced by her for doing so, nor discerned
             by the Court in the presentation of the evidence, while
             seeking attribution of income unto the support obligor.
             Neither counsel did so nor is the Court aware of any case in
             which the Supreme Court has specifically addressed this issue
             in any depth, particularly with a consideration of the disparate
             impact upon the respective parties.
                    The Court could of course attribute income to both
             parties, but the act of doing so would result in a nominal
             reduction in father’s obligation under the guidelines and
             would have little of [sic] any felt impact upon the mother.
             The attribution of income under statutory directives in the
             instant case, if attributed, to the father would be based upon
             past earnings, while the mother’s would be based upon
             minimum wage for 35 hours per week. This would appear to
             be a wholly inequitable result under the circumstances of this
             case.

(Footnotes omitted.)



             This Court addressed the issue of attributing income to a parent who is a

full-time caregiver to a minor child in State ex rel. W. Va. DHHR v. Gibson, supra. In

Gibson, one of the issues was whether income should have been attributed to the

8
 The mother has not worked outside the home and her current spouse is the wage earner
of the family.

                                           11

appellee, who was a stay-at-home mother, where the parties’ daughter was 11 years of

age.9 The appellant father contended that the appellee could leave their daughter at home

or in school and earn an income. In affirming the lower court’s refusal to attribute income

to the appellee mother, this Court held in Syllabus Point 6,

                     A family [court] or circuit court may not attribute
              income to a parent who is unemployed or under-employed
              because the parent has chosen to devote time to care for
              children (including those who are above pre-school age or
              those to whom the parties do not owe a joint legal
              responsibility for support) under circumstances in which a
              reasonable, similarly-situated parent would have devoted time
              to care for the children had the family remained intact or, in
              cases involving a non-marital birth, had a household been
              formed.

This Court concluded that a reasonable, similarly situated parent with a 9-month-old

child, a 2-year-old child, and (at the time of the hearing) a 9-year-old child could

reasonably conclude that it was in the children’s best interest to stay home. See also

Josimovich v. Josimovich, 212 W. Va. 874, 575 S.E.2d 633 (2002) (finding error in

attribution of income to appellant mother where lower court failed to provide full

explanation on the record why it was in best interests of children that mother return to

work). Finally, this Court held in Syllabus Point 7 of Gibson:

                     When a family [court] or a circuit court, in the exercise
              of discretion, chooses to attribute income to a parent who is
              providing care to children, there must be a full explanation on
              the record why it is in the best interests of the children that
              the parent be employed rather than providing care to the
              children.

9
 In Gibson, the appellee also was raising a 2-year-old and a 9-month-old child each of
whom were fathered by an individual other than the appellant.

                                            12

              Based on our law, we now clarify that for the purpose of determining child

support, either not attributing income or attributing income to a parent who is a full-time

caregiver to a minor child based on full-time employment at the federal minimum wage

alone does not constitute a circumstance that would make attribution of income to the

other parent based on previous earnings inequitable under W. Va. Code § 48-1-205(c)(4).

Therefore, the family court erred to the extent that it based its decision to not attribute

previous income to the father on the fact that it did not attribute income to the mother

who is the primary caregiver of the parties’ minor child.10



                                  IV. CONCLUSION

              Based on the foregoing, for purposes of income attribution for child support

purposes, this Court determines that the father’s decision to leave his employment at

Momentive and go to work at Marble King was not reasonable. We further find that none

of the statutory conditions which would relieve the father of attribution of earning

capacity based on his previous income are present based upon the record before us.

10
  The fourth condition, not pertinent to this appeal, is W. Va. Code § 48-1-205(c)(1)
which provides:

              (c)     Income shall not be attributed to an obligor who is
              unemployed or underemployed or is otherwise working below
              full earning capacity if . . .
              (1)     The parent is providing care required by the children to
              whom both of the parties owe a legal responsibility for
              support and such children are of preschool age or are
              handicapped or otherwise in a situation requiring particular
              care by the parent.

                                            13

Therefore, we conclude that the court below erred in failing to attribute to the father an

earning capacity based upon his previous income at Momentive.



              Accordingly, we reverse the August 2, 2011, order of the Circuit Court of

Tyler County that refused the mother’s petition for appeal of the April 20, 2011, order of

the Family Court of Tyler County. In addition, we remand this case to the Circuit Court

of Tyler County and direct that the circuit court remand the case to the Family Court of

Tyler County for the sole and limited purpose of deciding the amount of the father’s

earning capacity based on his previous income at Momentive and determining the amount

of child support in accordance with the child support guidelines.


                                                  Reversed and remanded with directions.




                                            14

