The Family Times
West Virginia Family Law Newsletter

                                                                                                                                               February 2011- Vol 1, Issue 1

In This Issue

GUEST AUTHOR:
 

By Judge Mike Kelly.

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LITTLE KNOWN CODE SECTION: 48-5-706
Revision of Order concerning Equitable Distribution
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TECH TIP:

Subpoena Info for Attorneys

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QDRO BANK STARTED

We need your help!

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CASE BRIEFS:

Mullens v. Mullens (2010) 

Wilson v. Wilson (2010)

Upcoming Events

Feb. 8 - Kanawha Co. Family Law Bench Bar Committee Meeting at 5:30 p.m.
 
Feb. 10 - WV State Bar Family Law Committee meeting at 10 a.m., 1528 Kanawha Blvd. E, Charleston, WV.

 

Feb. 14 - Valentine's Day

 

Feb. 21 - State Holiday (Washington's Birthday)

 

Brought to you by:

West Virginia State Bar

President, Letitia Chafin, Esq.

 

WV State Bar Family Law Committee

Chair, Lyne Ranson, Esq.

 

Kanawha County Family Law

Bench Bar Committee
Chair, Andrew S.  Nason, Esq.


Newsletter Editor

Brittany N. Ranson, Esq.

Greetings! 
 
Welcome to the first ever West Virginia Family Law newsletter-- "The Family Times" -- brought to you monthly by the West Virginia State Bar Family Law committee and members of the Kanawha County bench bar committee.  We hope this newsletter will serve to inform, entertain, and provide a forum for discussion for all West Virginia family law practitioners and judges.  

You are encouraged to submit relevant articles, information, notice of events, CLE dates in your area, or any idea you have to improve this newsletter to the editor or committee members.

Please enjoy!

Tech Tip: Subpoena Information for Attorneys

 

http://subhq.wordpress.com/

 

Stop wasting hours trying to figure out where to send your subpoenas.This website does the work for you!  Just go to the site and search for the company you're looking for. 


Little Known Code Section of the Month - 48-5-706

Did you know a final divorce order could be modified in regard to property? 

 

 

W.Va. Code 48-5-706  

Revision of Order concerning Equitable Distribution:

 

A Final divorce order concerning distribution of property may be modified when other means are not conveniently available if:

(1) The property is still held by the parties;

 

(2) The alteration of the prior order as it relates to the distribution of marital property is necessary to give effect to a modification of spousal supprot, child support or child custody; or

 

 

(3) The alteration as it relates to the distribution of marital property is necessary to avoid an inequitable or unjust result which would be caused by the manner in which the modification will affect the prior distribution of marital property. 

 

 

QDRO bank started!                                    We need your help...

Do you dread preparing QDROs? If so, help has arrived.  The WV Family Law Committee is collecting, scanning and posting QDROs that were approved in the last few years onto our WV State Bar website.These forms will be available for your use and reinventing the wheel will no longer be necessary. 

 

However, we need your help to get a complete set of QDROs.  Please email or fax all QDROs which have been approved to [email protected].  QDRO's will be posted on the website by April 1st.

GUEST AUTHOR: Judge Mike Kelly, Kanawha County Family Court GuestAuthor

 

Judge KellyThe Statutory Basis for an Award of Attorney's Fees

Most post-trial fee petitions I review do not make reference to W.Va. Code � 48-1-305, which provides statutory authority for a party to seek and a court to award attorney fees and costs. From the trial judge's perspective, making reference to and relying on statutory grounds in a petition and order makes an award of fees more likely to be granted and less vulnerable on appeal.

  

Particular care should be paid to �305(c), which allows the trial court to award fees (perhaps even when otherwise inappropriate under �305(a) or (b) ) if the petitioning party "has incurred fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith". While this standard is high, it is not insurmountable and I have relied on it in more than a dozen fee awards over the past few years. Please note that after finding that an award is appropriate under �305(c), the statute further provides that "the court may order the opposing party, or his or her attorney, or both, to pay" the amount awarded (emphasis added). This subsection serves as fair warning to opposing counsel to not consume court time and drive up the other party's  fees pursuing patently meritless claims or defenses.

 

 Fees are also available under the generic family court contempt statute. W.Va. Code �51-2A-9(b) specifically allows that upon a finding of contempt "ancillary relief may provide for an award of attorney's fees". This language puts an award of fees and costs at issue in nearly every case in which a party is found to be in contempt.

 

In addition to citations to the appropriate statute, a proper fee petition should also include:

(1) A detailed breakdown of the hours for which compensation is sought and the nature of the work performed; (2) The hourly rate sought for each attorney and paralegal who worked on the case and, if the hourly rate is above the market rate, argument as to why an enhanced rate should be awarded; (3) A detailed breakdown of costs (e.g. depositions) for which reimbursement is sought; and (4) A summary calculation of the total amount requested, such as:

 

Attorney A          $6,000

Attorney B          $3,500

Paralegal C         $2,000

Costs                  $500

Total                 $12,000         Do not leave it to the Court to do your math.

 

Finally, a fee petition should address the 6 factors outlined in Banker v. Banker, 196 W.Va. 535, 474 S.E.20 465 (1996) and the 12 factors set forth in Aetna Casualty & Surety Co. v. Pitrolo, 176 W.Va. 190, 3 42 S.E.20 15 (1986).

 

A properly drafted fee petition increases the likelihood that it will be carefully reviewed and evaluated by the court. Similarly, a pro forma one paragraph demand for an unspecified amount will be treated as boilerplate and disposed of accordingly.

Case Brief:
Mullens v. Mullens (2010)
       

The Final Divorce Order and Property Settlement Agreement (PSA) were silent as to the classification of mortgage payments made by Father after the divorce on the marital home where the parties' minor child continuously resided at least half of the time, and where both parties resided after the divorce -- first Mother, then Father. Father argued that one-half of his mortgage payments on the marital home after the divorce should be classified as child support payments, pursuant to W.Va. Code S 48-5-604, and that he should be given credit toward his child support arrears because those payments inured to the benefit of the minor child by preserving the marital home.  

 

The Court, distinguishing Sly v. Sly, 187 W.Va.172 (1992), found that Father's payments on the marital home were not intended as child support payments because of the following:

 

1. No child support type language (e.g. "payments terminate when minor child turns 18");

2. Marital home was to be listed for sale immediately after the divorce;

3. PSA made each party responsible for 1/2 of the mortgage payment, even though the parties modified the agreement after the divorce so that Father paid the full amount; and

4. Even though Mother was given exclusive use until the home sold, Father was to receive a greater portion of sale proceeds.

 

Practice Tip following Mullens decision: Classify Payments or Use the "Language"

If you want mortgage payments to be classified as child support or spousal support make sure you specifically classify the payments as such, or include the "language."  Specifically, for child support language, include such terms as "payments terminate when the child turns 18" or for spousal support language include such terms as "payments terminate upon the spouse's remarriage."

Case Brief:
Wilson v. Wilson (2010) 
CaseAnalysis
 

What's new?  

New Syllabus Pt. 6 - Profits of a business that are based upon a future contingency or obligation are subject to equitable distribution upon the dissolution of a marriage, but only that portion of the profits for work done during the marriage is actually "marital property."  In determining the amount of profits subject to equtiable distribution, sound valuation methods must be used, and it may be necessary for a court to retain continuing jurisdiction over the matter until such profits are determined in order to effectuate an equitable distribution.


Please email guest articles, ideas, points of view, tech tips, etc. to Brittany Ranson at [email protected] or contact by phone at (304) 344-2121.

Thank you for your contribution!