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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term 

_______________ FILED 

April 19, 2013 

No. 11-1270 

released at 3:00 p.m. 

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). 

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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). 

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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. 

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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 1⁄2 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. 

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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. 

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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 

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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 underperforming 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 . . . ) 

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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.” 

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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 selfimprovement 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, selfemployment 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). 

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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. 

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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 

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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. 

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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. 

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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. 

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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. 

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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. 

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