Val bettinger west
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This is why caution should be exercised in accepting their value for equitable distribution purposes. Bettinger's share of Mr. Bettinger's interest in the professional corporation should be reduced by an amount for federal income taxes. This was based on the premise that if Mr. Bettinger sold his interest, he would be liable for a federal income tax. This conclusion was approved by the circuit court. Bettinger argues that there was no evidence that her husband intended or would be required to sell his interest in the corporation to meet his equitable distribution obligation.
She points to the fact that under the circuit court's order, as more fully discussed in the next section, he is permitted to pay her valued share in equal monthly payments over a ten-year period. Code, i ,[7] which specifically exempt from federal and state taxes transfers of property between spouses which arise incident to a divorce. Not many jurisdictions have had an occasion to specifically discuss this issue simply because it was not until that Congress enacted Section , termed the Domestic Relations Tax Reform Act.
While there is no tax liability attendant to a transfer between husband and wife, if a party to a divorce were required to sell an asset to a third party to satisfy an equitable distribution obligation, such a sale would give rise to a taxable incident. This tax question has been discussed in cases involving equitable distribution before the adoption of Section Courts have generally concluded that the tax implications of a future sale of property to a third party are too speculative to allow for a tax deduction against the other spouse's share unless it could be ascertained that under the court's decree, such sale would actually occur.
See, e. Levan, So. Burkhart, Ind. Nemitz, N. Orgler, N. Hovis, Pa. The typical explanation for this rule is given in Orgler v. The hypothetical tax is simply too speculative to permit a reduction in value. In such a circumstance, the ex-spouse is able to demonstrate the present tax consequence. Further, distribution of the net value in such a circumstance best attains an equitable distribution of the asset. There is no evidence in the record that Mr.
Bettinger intended or was required to sell his stock interest in order to pay Mrs. Bettinger her proportionate share of its value. As we have already pointed out, payment of Mrs. Bettinger's interest is being made in monthly installments. Consequently, there was no basis for reducing her share by way of a purported tax liability. Bettinger's share in her husband's stock to be paid in equal monthly installments without interest.
She argues that a lump sum payment should have been ordered or, at the very least, interest should have been ordered paid on the installments, citing Cross v. In Cross, we dealt with another type of marital asset, a husband's pension, and expressed a preference for a lump sum payment, but recognized in Syllabus Point 5 that other options were available: "When a court is required to divide vested pension rights that have not yet matured as an incident to the equitable distribution of marital property at divorce, the court should be guided in the selection of a method of division by the desirability of disentangling parties from one another as quickly and cleanly as possible.
Consequently, a court should look to the following methods of dividing pension rights in this descending order of preference unless peculiar facts and circumstances dictate otherwise: 1 lump sum payment through a cash settlement or off-set from other available marital assets; 2 payment over time of the present value of the pension rights at the time of divorce to the non-working spouse; 3 a court order requiring that the non-working spouse share in the benefits on a proportional basis when and if they mature.
Bettinger appears to recognize that Mr. Bettinger has no readily available cash or other asset to offset for her interest in the corporation. She maintains that Mr. Bettinger could borrow sufficient funds to pay the amount owed.
We note initially that W. Code, d 7 A through E , contain a variety of options that are available to the trial court to provide for payment of a party's equitable distribution share. Code, e , that gives "preference to effecting equitable distribution through periodic or lump sum payments[. Where there are substantial nonliquid assets that are subject to equitable distribution, there may be no other recourse than for a trial court to order installment payments for a spouse's share.
Here, Mr. Bettinger's stock and pension and profit sharing plans had no liquidity and constituted sizeable obligations. Consequently, we conclude that the circuit court did not abuse its discretion in ordering periodic payments on the equitable distribution asset involving his stock.
However, we agree with Mrs. Bettinger's alternative claim that she be given interest on the unpaid balance. We recognized in Cross that where monthly payments were made on a wife's share of her husband's pension, she should get "interest over [the] term of years" that it was payable. Other courts have recognized that where the value of an equitable distribution asset is payable over a term of years, interest should be paid at the going rate in the absence of some special hardship factor shown by the obligor.
Collier, 36 Ohio App. Lien, N. Ovens, 61 Wash. Corliss, Wis. In Lien, the South Dakota Supreme Court gave this explanation of the rule: "Each party is entitled to their respective property as of [the judgment] date. There were no special circumstances shown in this case to warrant not awarding interest on the deferred payments. Interest should be awarded on remand. This type of plan consists of making periodic contributions to a fund by the employee, the employer, or both.
This money is invested and each employee's account is credited with the contribution made plus the earnings made on the contributions. Retirement benefits are paid based on the accumulated contributions and earnings in the employee's account. This arrangement is analogous to a savings account except there is no automatic right of withdrawal before retirement. Johnson, Ariz. His pension account was vested, i. Most courts hold that the valuation for equitable distribution purposes of a vested defined contribution plan is the present actual value of the contributions made and the accumulated earnings thereon.
Johnson, supra; Berry v. Duncan, S. Laffitte, So. Bloomer, 84 Wis. His expert had discounted both pension amounts by 29 percent. This discount was apparently based on his view that since the funds could not be paid until Mr. Bettinger's retirement in the year , a discount to present day value was appropriate. The fallacy in this position is that the expert used the present day values as if they would be the value of the funds on the retirement date.
The expert's position ignored the fact that the present values would continue to increase through contributions and earnings to the year when Mr. Bettinger would be sixty-five. If he had taken these latter figures, then a discount to present day value would have been appropriate. We find that the trial court erred in discounting the present value of the pension and profit sharing plans.
Upon remand, Mrs. Child Support Mrs. Guidelines for Child Support Awards, 6 W. These rules were promulgated by the director of the Child Advocate Office pursuant to authority delegated by the legislature in W. Code, 48A a Code, 48A a , as amended. We concluded that the trial court erred in not following the formula and in failing to comply with the statutory requirement that if the guidelines were not followed to set forth "in writing, specific reasons for not following the guidelines in the particular case involved.
In the present case, the claim is made that with Mr. Bettinger argues that the formula is not to be used in this case and points to 6 W. Under such circumstances, the court shall equitably determine the SOLA support obligation so as to avoid a windfall to either support obligor or a hardship on either support obligor, and shall be cognizant of the fact that an excessive amount of SOLA support may not be in the best interests of the child or children.
Under the child support formula, there are two calculations for child support. The first calculation is to determine the primary child support, which essentially covers the basic needs of the children. The SOLA calculation is then made based on defined percentages for the number of children. We do not read this section to mandate an absolute bar to use of the formula.
We note initially that the language is "the court or master may not apply the percentages set forth in this section. Whyte, W. Second, the reference is to the SOLA part of the formula since this is the area where percentages are used. Under 6 W. Nothing in 6 W. Indeed, the use of the term "discretionary income" in this section clearly indicates that the primary support obligation has been calculated. The term "discretionary income" under 6 W. It seems clear that 6 W.
A decision not to follow the SOLA percentages must be undertaken in light of the legislative preference in W. Code, 48A b , which is that child support should be keyed to "the level of living which such children would enjoy if they were living in a household with both parents present. As we have earlier pointed out, the primary child support obligation amount must be calculated first.
In view of the absence of an appropriate factual record on the child support calculation, we remand for an appropriate calculation under the principles set out herein. Alimony Award Mrs. First, she believes it is inadequate in view of her husband's income. Second, she also asserts that an award for only five years is akin to an award of rehabilitative alimony and that there was no showing that she met the criteria of Molnar v. Again, we are faced with a record that fails to set out the reasons that alimony was granted in this amount and in this form.
Code, b , the legislature set forth a number of factors that should be considered in making an award of alimony. Molnar, supra, that a broad inquiry must be made: "There are three broad inquiries that need to be considered in regard to rehabilitative alimony: 1 whether in view of the length of the marriage and the age, health, and skills of the dependent spouse, it should be granted; 2 if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and 3 consideration should be given to continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony.
We find no detailed inquiry in the record with regard to Mrs. Bettinger's ability to engage in remunerative work. She was forty-five years of age at the time of the divorce proceedings and had not worked for ten years at her former profession as an occupational therapist. Moreover, as we pointed out in Molnar, some courts are reluctant to give rehabilitative alimony where "there are minor children. Citations omitted. While rehabilitative alimony may be ideally suited to a young spouse, it is less suited to an older person who may find his or her age a limitation in a skilled job market.
In summary, we find the record inadequate to justify the alimony award and remand this matter for reconsideration under the foregoing guidelines. We are not advised as to the amount of additional attorney's fees sought. However, it is clear that a considerable amount of legal work was done after November 4, The circuit judge had, on August 5, , reversed the original recommended decision of the family law master. This required additional discovery and hearings, culminating in a new recommended decision on June 16, This decision was subsequently appealed to the circuit court and confirmed on August 12, Code, a 4 , enables a court, which would include a family law master,[26] to "compel either party to pay attorney's fees and court costs reasonably necessary It would appear from Mrs.
Bettinger's exceptions to the family law master's decision of December 14, , that there had been no formal order for the payment of temporary alimony pendente lite. Despite assertions in Mr. Bettinger's brief that his wife had prolonged the litigation and made onerous discovery motions, we do not find the record to bear this out.
It is true that Mrs. Bettinger's attorney felt that the original recommended decision of the family law master was erroneous and was successful in having it reversed. Equally true is the fact that he complained about the final recommended decision which was approved by the trial court. We have, by this opinion, found his appeal to be substantially justified. The purpose of W. Code, a 4 , is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees during the course of the litigation.
It is unreasonable to expect an attorney to shoulder not only the cost of the litigation, but to conduct the litigation on a no-fee basis unless the client can pay or until it is ended and some fee is awarded. Here, Mrs. Bettinger was not working, and Mr. Bettinger was earning a sizeable income.
By October, the first six miles of the route had been surveyed, and by December, the surveying had been completed to Clay County. Construction commenced on October 12 and by mid-December, work had progressed to Queen Shoals. Construction did not resume until when a mile contract to lay track to Ivydale Big Otter was awarded, 10 which was finished in It was then acquired by Conrail to access mines owned by Union Carbide. By January , tracks had been laid to the third tunnel work on Reeds Tunnel was nearing completion, and work began on tunnel six Sago Tunnel in February.
After encountering issues with securing the right-of-way where the Little Kanawha Railroad had already laid claim, Davis acquired the railway on August The railroad acquired and began operating the Davis Colliery Company acreage, totaling around 20, acres in the Roaring Creek region, which consisted of five physical facilities that produced 3, tons of coal and tons of coke daily.
It was then proposed to eliminate the alignment along Oil Creek east of Orlando and along West Fork River from Jacksonville to Arnold in , with a new route constructed from Burnsville to Orlando and then northeast to Arnold. In , the right fork of the Turner Branch was abandoned and the entirety of the branch was dismantled on April 7, , after all available coal was extracted from the area. Work began in May on a major track realignment because of the Tygart Valley River flood diversion project, which necessitated the construction of a levee and diversion channel west of Elkins.
The s and s saw much labor unrest in the coal mining industry, which led to sharp reductions in coal transported during certain months which caused considerable losses for the railroad.
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