Background
Donald Elam II and Patti Jo Elam divorced, and the Family Court of Boone County entered an April 25, 2024, order awarding Patti Jo Elam permanent spousal support of $600 per month. Donald appealed to the Intermediate Court of Appeals of West Virginia (ICA), which affirmed the family court’s ruling in a 2-1 memorandum decision issued December 23, 2024. A dissenting ICA judge characterized the award as “inequitable, clearly wrong, and an abuse of the family court’s discretion.”
Donald then petitioned the Supreme Court of Appeals of West Virginia, arguing the ICA erred in affirming the permanent spousal support award. The sole issue before the high court was whether the family court abused its discretion in ordering $600 per month in permanent support, including by factoring Donald’s overtime pay into his income for purposes of the calculation.
The Court’s Holding
The Supreme Court of Appeals affirmed in a 4-1 memorandum decision. The majority found that the family court had thoroughly considered all statutory factors under West Virginia Code § 48-6-301(b) and had properly included Donald’s overtime pay when calculating his income. The court cited the longstanding rule from Rexroad v. Rexroad, 186 W. Va. 696 (1992), which permits courts to consider not only regular wages but also overtime pay ordinarily received when determining alimony.
Applying a clear-error standard to factual findings and an abuse-of-discretion standard to the application of law to facts, the majority discerned no reversible error and summarily affirmed under West Virginia Rule of Appellate Procedure 21(c). Justice William R. Wooton dissented, adopting the reasoning of the ICA’s dissenting judge that the permanent award was inequitable and an abuse of discretion on the particular facts of the case.
Key Takeaways
- West Virginia courts may include a spouse’s overtime pay — not just base wages — when calculating income for spousal support purposes, consistent with Rexroad v. Rexroad and W. Va. Code § 48-6-301(b)(3).
- Family courts must consider all statutory factors under § 48-6-301(b) when setting spousal support; the record here supported the award and showed no abuse of discretion.
- The decision drew a dissent from Justice Wooton, who agreed with the ICA’s dissenting judge that the permanent nature and amount of the award were inequitable given the specific circumstances of the parties.
Why It Matters
This decision reinforces West Virginia’s well-established rule that overtime earnings regularly received by a paying spouse are fair game when a court sets the amount of alimony or spousal support. Practitioners representing either side in dissolution proceedings should document overtime pay history carefully, as courts will look beyond base salary to recurring earnings from any source under the statute.
The 4-1 split — with a dissent endorsing the view that the award was “inequitable” and “clearly wrong” — signals that permanent spousal support awards remain a contested area where fact-specific arguments about the parties’ circumstances can move judges even at the appellate level, even if they did not carry the day here.