H. B. 2104
(By Delegate Browning (By Request)
[Introduced February 12, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fifteen, article two, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to divorce,
annulment and separate maintenance; and requiring the court
to order a spouse awarded custody of a minor child or
children to give periodic accountings of expenditures made
from child support payments to the noncustodial parent
making such payments.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, to read as follows:
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony inthe form of periodic installments, or a lump sum, or both, for
the maintenance of the other party. Payments of alimony and
child support are to be ordinarily made from a party's employment
income and other recurring earnings, but in cases where the
employment income and other recurring earnings are not sufficient
to adequately provide for payments of alimony and child support,
the court may, upon specific findings set forth in the order,
order the party required to make such payments to make the same
from the corpus of his or her separate estate. An award of such
relief shall not be disproportionate to a party's ability to pay
as disclosed by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce
or granting of decree of separate maintenance, the court may
further order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances.
(2) The court may require either party to pay child support
in the form of periodic installments for the maintenance of the
minor children of the parties. The court shall order a party
awarded custody of a minor child or children to give periodic
accountings of expenditures made from child support payments to
the noncustodial parent making such payments.
(3) As an incident to requiring the payment of alimony orchild support, the court may order either party to continue in
effect existing policies of insurance covering the costs of
health care and hospitalization of the other party and the minor
children of the parties:
Provided,
That if the other party is no
longer eligible to be covered by such insurance because of the
granting of an annulment or divorce, the court may require a
party to substitute such insurance with a new policy to cover the
other party, or may consider the prospective cost of such
insurance in awarding alimony to be paid in periodic
installments. If there is no such existing policy or policies,
the court shall order such health care insurance coverage to be
paid for by the noncustodial parent, if the court determines that
such health care insurance coverage is available to the
noncustodial parent at a reasonable cost. Payments made to an
insurer pursuant to this subdivision, either directly or by a
deduction from wages, shall be deemed to be alimony, child
support or installment payments for the distribution of marital
property, in such proportion as the court shall direct:
Provided, however,
That if the court does not set forth in the
order that a portion of such payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony:
Provided further,
That the designation of insurance coverage as alimony under the
provisions of this subdivision shall not, in and of itself, give
rise to a subsequent modification of the order to provide foralimony other than insurance for covering the costs of health
care and hospitalization.
(4) As an incident to requiring the payment of alimony or
child support, the court may grant the exclusive use and
occupancy of the marital home to one of the parties, together
with all or a portion of the household goods, furniture and
furnishings reasonably necessary for such use and occupancy.
Such use and occupancy shall be for a definite period, ending at
a specific time set forth in the order, subject to modification
upon the petition of either party. Except in extraordinary cases
supported by specific findings set forth in the order granting
relief, a grant of the exclusive use and occupancy of the marital
home shall be limited to those situations where such use and
occupancy is reasonably necessary to accommodate the rearing of
minor children of the parties. The court may require payments to
third parties in the form of home loan installments, land
contract payments, rent, payments for utility services, property
taxes, insurance coverage, or other expenses or charges
reasonably necessary for the use and occupancy of the marital
domicile. Payments made to a third party pursuant to this
subdivision for the benefit of the other party shall be deemed to
be alimony, child support or installment payments for the
distribution of marital property, in such proportion as the court
shall direct:
Provided,
That if the court does not set forth in
the order that a portion of such payments is to be deemed child
support or installment payments for the distribution of maritalproperty, then all such payments made pursuant to this
subdivision shall be deemed to be alimony. Nothing contained in
this subdivision shall abrogate an existing contract between
either of the parties and a third party, or affect the rights and
liabilities of either party or a third party under the terms of
such contract.
(5) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision
for the benefit of the other party shall be deemed to be alimony
or installment payments for the distribution of marital property,
as the court may direct. Nothing contained in this subdivision
shall abrogate an existing contract between either of the parties
and a third party, or affect the rights and liabilities of either
party or a third party under the terms of such contract.
(6) Where the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein.
(7) Unless a contrary disposition be found appropriate and
ordered pursuant to other provisions of this section, then uponthe motion of either party, the court may compel the other party
to deliver to the movant party any of his or her separate estate
which may be in the possession or control of the respondent
party, and may make such further order as is necessary to prevent
either party from interfering with the separate estate of the
other.
(8) The court shall, when allegations of abuse have been
proven, enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other, or interfering with the custodial
or visitation rights of the other. Such order may permanently
enjoin the offending party from entering the school, business or
place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place.
(9) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(10) The court may, pursuant to the provisions of article
two-b of this chapter, grant visitation rights to any grandparent
of the minor children.
(c) In any case where an annulment or divorce is denied, the
court shall retain jurisdiction of the case and may order all or
any portion of the relief provided for in subsections (a) and (b)
of this section which has been demanded or prayed for in the
pleadings.
(d) In any case where a divorce or annulment is granted in
this state upon constructive service of process, and personal
jurisdiction is thereafter obtained of the defendant in such
case, the court may order all or any portion of the relief
provided for in subsections (a) and (b) of this section which has
been demanded or prayed for in the pleadings.
(e) At any time after the entry of an order pursuant to the
provisions of this section, the court may, upon the verified
petition of either of the parties, revise or alter such order
concerning the maintenance of the parties, or either of them, and
make a new order concerning the same, issuing it forthwith, as
the altered circumstances or needs of the parties may render
necessary to meet the ends of justice. The court may also from
time to time afterward, on the verified petition of either of the
parties, revise or alter such order to grant relief pursuant to
subdivision (8), subsection (b) of this section, and make a new
order concerning the same, issuing it forthwith, as the
circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, on the
verified petition of either of the parties or other proper person
having actual or legal custody of the minor child or children ofthe parties, revise or alter such order concerning the custody
and support of the children, and make a new order concerning the
same, issuing it forthwith, as the circumstances of the parents
or other proper person or persons and the benefit of the children
may require:
Provided,
That an order providing for child support
payments may be revised or altered for the reason, inter alia,
that the existing order provides for child support payments in an
amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to
be paid under the child support guidelines promulgated pursuant
to the provisions of section eight, article two, chapter forty-
eight-a of this code. In granting relief under this subsection,
the court may, where other means are not conveniently available,
alter any prior order of the court with respect to the
distribution of marital property, if such property is still held
by the parties, and if necessary to give effect to a modification
of alimony, child support or child custody or 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.
(f) In every case where a separation agreement is the basis
for an award of alimony, the court, in approving the agreement,
shall examine the agreement to ascertain whether it clearly
provides for alimony to continue beyond the death of the payor
party or to cease in such event. Where alimony is to be paid
pursuant to the terms of a separation agreement which does notstate whether the payment of alimony is to continue beyond the
death of the payor party or is to cease, or where the parties
have not entered into a separation agreement and alimony is to be
awarded, the court shall specifically state as a part of its
order whether such payments of alimony are to be continued beyond
the death of the payor party or cease.
(g) In every case where a separation agreement is the basis
for an award of alimony, the court, in approving the agreement,
shall examine the agreement to ascertain whether it clearly
provides for alimony to continue beyond the remarriage of the
payee party or to cease in such event. Where alimony is to be
paid pursuant to the terms of a separation agreement which does
not state whether the payment of alimony is to continue beyond
the remarriage of the payee party or is to cease, or where the
parties have not entered into a separation agreement and alimony
is to be awarded, the court shall specifically state as a part of
its order whether such payments of alimony are to be continued
beyond the remarriage of the payee party or cease.
(h) In addition to the statement provided for in subsection
(d), section thirteen of this article and in addition or in lieu
of the disclosure requirements set forth in section thirty-three
of this article, the court may order accounts to be taken as to
all or any part of marital property or the separate estates of
the parties, and may direct that the accounts be taken as of the
date of the marriage, the date upon which the parties separated,
or any other time deemed to be appropriate in assisting the courtin the determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and
compare the fault or misconduct of either or both of the parties
and the effect of such fault or misconduct as a contributing
factor to the deterioration of the marital relationship.
However, alimony shall not be awarded in any case where both
parties prove grounds for divorce and are denied a divorce, nor
shall an award of alimony under the provisions of this section be
ordered which directs the payment of alimony to a party
determined to be at fault, when, as a grounds granting the
divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof
to be paid out of "disposable retired or retainer pay" as that
term is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the courtshall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
NOTE: The purpose of this bill is to require a spouse who
is awarded child custody to give periodic accountings of
expenditures made from child support payments to the noncustodial
parent making such payments.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.