742 S.E.2d 419
W. Va.2013Background
- The case involves Melinda H. (mother) and William R., II (father), originally divorced in 2002 with two children; child support was set at $700 per month.
- In 2010 the father filed a modification petition asserting emancipation of the elder child and a change in his employment income.
- The father left Momentive Performance Materials after 17½ years to work at Marble King for about $10 per hour, roughly 20 hours per week, citing health and quality-of-life concerns.
- The family court reduced the father’s child support based on the Marble King position, prompting Melinda to seek appellate review,” which the circuit court declined.
- The Supreme Court of Appeals held the family court erred by not applying the three-part income-attribution test under W. Va. Code § 48-1-205(b) and (c), and reversed/remanded for calculation using the prior Momentive income.
- The remand directs determining the father’s earning capacity based on his Momentive income and recalculating child support under the guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether income should be attributed to the father under 48-1-205(b). | Mother argues attribution is warranted based on prior Momentive earnings. | Father argues attribution not required due to subsequent plan at Marble King and medical/other reasons. | Court reversed and remanded to apply the three-part test and attribute income. |
Key Cases Cited
- Porter v. Bego, 200 W. Va. 168 (1997) (defines attributed income and outlines the three-part test under § 48-1-205(b))
- Gibson, 207 W. Va. 594 (2000) (limits attribution when caregiver stays home; requires good record and explanation)
- Johnson v. Johnson, 200 W. Va. 28 (1997) (economic self-improvement plan evaluation)
- Carr v. Hancock, 216 W. Va. 474 (2004) (clarifies standard of review and application of law to facts)