Teresa L. Underhill v. James F. Underhill

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
TERESA L. UNDERHILL, FILED
Respondent below, Petitioner, November 9, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
vs.) No. 14-1102 (Kanawha County10-D-96 ) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JAMES F. UNDERHILL,
Petitioner below, Respondent
MEMORANDUM DECISION
Petitioner Teresa Underhill (“Ms. Underhill”), by counsel Tim C. Carrico,
appeals the September 11, 2014, order of the Circuit Court of Kanawha County affirming
an April 29, 2014, final order of the Family Court of Kanawha County that modified the
spousal support award contained in the parties’ final divorce order. In this appeal, Ms.
Underhill argues that the circuit court erred by affirming the family court’s order
modifying the spousal support award. By contrast, Respondent James Underhill (“Mr.
Underhill”), by counsel Mark W. Kelley and David S. Hughart, raises a cross-assignment
of error. He asserts that the family court should have completely terminated, rather than
modified, the spousal support award contained in the final divorce order.
Upon consideration of the standard of review, the record presented, the
parties’ briefs and oral arguments, this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s
order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Mr. and Ms. Underhill divorced in 2011 after approximately thirty years of
marriage. In 2011, Mr. Underhill was an executive with McJunkin Red Man Corporation
and earned a “high six-figure” income.1 Ms. Underhill was a CPA but was not employed
when the parties divorced. As part of the divorce settlement, the parties entered into an
agreement to resolve their financial issues, resulting in each party receiving
approximately $2,300,000.00 after the “net martial estate” was divided. The final order
incorporating this agreement and resolving all outstanding issues in the divorce was
entered by the family court on December 29, 2011.
1
In her brief to this Court, Ms. Underhill states that Mr. Underhill earned
$849,394.00 in 2011.
1
The family court’s final divorce order included a spousal support provision
that required Mr. Underhill to pay Ms. Underhill $10,000.00 a month for a period of
thirty-six months and then $9,750.00 a month until Ms. Underhill reached age sixty-six
and a half or until a specified event occurred. The order states that the first eighteen
months of the spousal support obligation were non-modifiable unless Mr. Underhill lost
his job. Further, after the first eighteen months, the spousal support obligation was
“modifiable by either party upon a proper Motion to the Court.” The spousal support
provision contained in the family court’s final order states:
Petitioner [Mr. Underhill] shall be obligated to pay
spousal support commencing on January 15, 2011, in the
amount of $10,000.00 a month for a period of three (3) years
(intended to be thirty – six (36) months). Except that
Petitioner’s obligation of Ten Thousand Dollars ($10,000.00)
per month is non-modifiable for a period of eighteen (18)
months of the thirty – six (36) unless Petitioner loses his
current employment and is unable to find commensurate
employment within 90 days, at which time Petitioner may file
a motion for a modification, which if granted shall be
effective from the date he lost his employment, and not the
date of the filing of the petition for modification.
Accordingly, if the Court determines a modification is
warranted then Petitioner shall receive a credit and/or refund
for any excess amounts he paid between the date his
employment ended and the date the modified spousal support
payment begins. After the eighteen (18) months this
amount is modifiable by either party upon a proper
Motion to the Court. The Petitioner’s obligation on the
thirty–seventh (37th) month will automatically reduce to
$9,750.00 a month, and will continue until such time as
Respondent attains the age of sixty-six and one-half (66 ½)
years of age at which time Petitioner’s spousal support
obligation shall cease and after that date Respondent shall not
be permitted to seek or receive spousal support. . . . The
obligation terminates in the event of either party’s death or at
Respondent’s remarriage or de facto marriage. For purposes
of determining the amounts of alimony the parties have not
stipulated to either party’s monthly expenses or financial
needs. The parties have stipulated to Petitioner’s income,
from any source, in the taxable year 2010 in a total gross
amount of $750,000.00. In taxable year 2011, Petitioner’s
total gross income from any source is anticipated to be
2
$450,000.00 and the parties have stipulated to this as
Petitioner’s 2011 gross income. The parties also stipulate that
for eighteen (18) months beginning January 2011 Respondent
will have no income. Thereafter commencing in July 2012,
the parties stipulate that Respondent should be able to find
employment with her stipulated income at $40,000.00 gross
per year.
(Emphasis added).
After entry of the family court’s order, Mr. Underhill made the $10,000.00
monthly payments to Ms. Underhill for thirty-four consecutive months (January 2011
through October 2013). On August 28, 2013, Mr. Underhill filed a motion to terminate
his spousal support obligation, asserting that three substantial changes in the parties’
circumstances had occurred since the entry of the family court’s final order: (1) he lost
his job,2 (2) Ms. Underhill’s net worth had increased from approximately $2,300,000.00
at the time of the divorce to over $6,000.000.00 by 2013 through an inheritance and
through certain “profit units”3 becoming valuable; and (3) while the parties contemplated
Ms. Underhill finding employment that would pay her $40,000.00 annually, she found a
job that paid her $65,000.00 a year. Ms. Underhill responded by asserting that Mr.
Underhill’s severance package from his former employer would still provide him with a
six-figure income in 2014, and that under the terms of the spousal support obligation
agreement, Mr. Underhill should not be permitted to reduce or terminate his spousal
support payments.
The family court agreed with Mr. Underhill that there had been substantial
changes in the parties’ circumstances and entered an order modifying, but not completely
terminating, the spousal support obligation. In so ruling, the family court cited and relied
2
Mr. Underhill was “involuntarily” retired by his employer in August 2013. He
received a severance package and a contingent consulting agreement, but did not receive
any income for the six-month period following his “retirement.” After six months, his
severance package and consulting agreement were expected to pay him on a monthly
basis from March 2014 through March 2015.
3
At the time of the divorce, the parties’ divided a number of so-called “profit
units” and “common units” that Mr. Underhill had received as part of his employment
with McJunkin Red Man Corporation. The family court described these “profit units” as
follows: “It was understood at the time [of the divorce] that such units would only have
any real value if the company went public and became a publicly traded company. Such
event occurred after the parties’ divorce was finalized and [Ms. Underhill] reaped a
benefit of approximately $1,140,000.00 from that occurrence.”
3
upon W.Va. Code § 48-8-103(b) [2012]. The title of this code section is “[p]ayment of
spousal support.” It states:
(b) At any time after the entry of an order pursuant to
the provisions of this article, the court may, upon motion of
either party, revise or alter the 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 family court ruled that “the loss of [Mr. Underhill’s] employment
constitutes a significant change in circumstances.” It also ruled that because Ms.
Underhill’s net worth had increased from $2,324,362.00 at the time of the divorce to
$6,112,423.72 by October 2013, her “need for spousal support has gone down[.]”
Additionally, the family court noted that Ms. Underhill was earning $65,000.00 per year.
Based on these findings, the family court ruled as follows:
This Court, having considered “the financial needs of
the parties, their incomes and income earning abilities and
their estates and the income produced by their estates in
determining the amount of alimony to be awarded in a
modification proceeding,” syl. pt. 2, Yanero v. Yanero, 171
W.Va. 88, 297 S.E.2d 863 (1982), concludes that [Mr.
Underhill’s] obligation to [Ms. Underhill] should be modified
effective August 30, 2013.
The family court stated that “while [Mr. Underhill] lost his employment, he nonetheless
is still receiving earnings from that employment” via the severance package from his
former employer. Mr. Underhill was scheduled to receive monthly payments from his
severance package from March 2014 through March 2015.
Due to these changed circumstances, the family court ordered that: (1) Mr.
Underhill’s spousal support obligation to Ms. Underhill would be suspended from the
date he lost his job (August 2013) until he began receiving his monthly payments from
the severance package (March 2014);4 (2) for the months of May and June 2014, Mr.
4
While Mr. Underhill lost his job and petitioned the court to terminate his spousal
support obligation in August 2013, he continued making monthly spousal support
payments to Ms. Underhill in September and October 2013 while the family court
considered his motion. The family court suspended his monthly payments from August
2013 through February 2014. It ruled that “for the months of March and April 2014, [Mr.
4
Underhill’s spousal support obligation would be $10,000.00 a month, which would
complete his thirty-six month obligation to pay that amount; (3) for the period of June
2014 through March 2015, Mr. Underhill’s spousal support obligation would be
$9,750.00 a month; (4) Mr. Underhill’s spousal support obligation would terminate as of
April 1, 2015, which is the date when his severance package expired; and (5) the court
would retain jurisdiction to modify the spousal support obligation as the circumstances of
the parties may require until Ms. Underhill reaches the age of sixty-six and a half.
Mr. Underhill appealed the family court’s order to the circuit court, arguing
that the family court erred by failing to completely terminate his spousal support
obligation. Ms. Underhill filed a cross-appeal to the circuit court, arguing that the family
court erred by modifying the terms of the spousal support obligation contained in the
final divorce order.
The circuit court entered a detailed order affirming the family court’s order.
The circuit court’s order provides that “[t]he family court entered a thorough order
modifying the spousal support obligation, which was within its discretion. See W.Va.
Code § 48-8-103(b).” After noting that W.Va. Code § 48-8-103(b) provided the family
court with the authority to modify a spousal support obligation due to the altered
circumstances or needs of the parties, the circuit court’s order concludes:
After carefully reviewing the family court’s
application of the facts of this case to pertinent law, the Court
cannot find that the family court abused its discretion in
modifying [Mr. Underhill’s] spousal support obligation to
[Ms. Underhill] but not completely terminating said spousal
support. In addition, the Court cannot find that the family
court abused its discretion in suspending [Mr. Underhill’s]
monthly spousal support obligation for six months. These
rulings were within the sound discretion of the family court.
After entry of the circuit court’s order, Ms. Underhill filed the present
appeal, asserting that the circuit court erred by affirming the family court’s order
modifying the spousal support obligation. Mr. Underhill filed a response to Ms.
Underhill’s appeal and also filed a cross-assignment of error with this Court, arguing that
the circuit court erred by affirming the family court’s order that modified, rather than
completely terminated, his spousal support obligation.
Our standard of review was set forth in the Syllabus of Carr v. Hancock,
216 W.Va. 474, 607 S.E.2d 803 (2004). It states:
Underhill] is entitled to credit for the payments he made [$10,000.00 a month] in
September and October 2013.”
5
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.
The issue on appeal is whether the circuit court erred when it affirmed the
family court’s order modifying the spousal support obligation. The three main errors
asserted by Ms. Underhill are: (1) the changes in the parties’ circumstances were
“contemplated” at the time of the divorce and therefore should not have been considered
by the family court; (2) the family court erred by considering Ms. Underhill’s increased
net worth despite the parties’ agreement that her financial needs and monthly expenses
would not be considered in a modification proceeding; and (3) the family court erred by
not considering Mr. Underhill’s gross income from sources other than his former
employer. In his cross-assignment of error, Mr. Underhill asserts that the family court
erred by failing to completely terminate his spousal support obligation.
Before addressing the parties’ specific assignments of errors, we begin our
analysis with a review of the general standards regarding the modification of a spousal
support award. This Court has held that “[q]uestions relating to [spousal support] . . . are
within the sound discretion of the court and its action with respect to such matters will
not be disturbed on appeal unless it clearly appears that such discretion has been abused.”
Syllabus, in part, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977). Along with
W.Va. Code § 48-8-103(b), which was relied on by the family court, W.Va. Code § 48-5­
701 [2001] provides statutory authority for a court to alter a spousal support award. It
states, “After the entry of a final divorce order, the court may revise the order concerning
spousal support or the maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.” (Emphasis added). This Court
addressed the purpose of a spousal support award in Syllabus Point 6 of Lucas v. Lucas,
215 W.Va. 1, 592 S.E.2d 646 (2003), holding: “‘The sole purpose of an award of
[spousal support] is to provide for the support of a former spouse.’ Syl. Pt. 3, in part, Clay
v. Clay, 182 W.Va. 414, 388 S.E.2d 288 (1989).” Moreover, as we held in Syllabus Point
3 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987), “The party petitioning for a
modification of the support provisions of a divorce decree bears the burden of showing a
substantial change of circumstances.” With this background in mind, we turn to the
parties’ arguments.
Ms. Underhill’s first assignment of error is that the changes in the parties’
circumstances were “contemplated” at the time of the final divorce order and therefore
should not have been considered by the family court in the modification proceeding. Ms.
6
Underhill also argues that while the changes in the parties’ circumstances were generally
contemplated at the time of the divorce, “Mr. Underhill failed to prove a change in
circumstances sufficient to warrant termination of his spousal support obligation.”
Because Ms. Underhill simultaneously asserts that (1) the parties contemplated the
changes in circumstances at the time of the divorce, and that (2) Mr. Underhill failed to
prove there was a substantial change in the parties’ circumstances, we must make two
inquiries. First, were there substantial changes in the parties’ circumstances, and, if so,
were these changes contemplated by the parties at the time of the divorce.
This Court has consistently maintained that “the primary standard to
determine whether or not a trial court should modify an order awarding alimony is a
substantial change of circumstances.” Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d
664, 671 (1983); see also Adkins v. Adkins, 208 W.Va. 364, 540 S.E.2d 581 (2000); Luff
v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985). We have recognized the difficulty in
precisely defining the phrase “substantial change in circumstances” but have stated that it
“most often refers to circumstances which have substantially impacted upon the financial
resources and economic needs of the parties subsequent to their divorce.” Clay v. Clay,
182 W.Va. 414, 422, 388 S.E.2d 288, 296 (1989) (emphasis added).
In the present case, Ms. Underhill’s net worth at the time of the divorce was
approximately $2,300,000.00. When Mr. Underhill petitioned the family court for
termination of his spousal support obligation in 2013, Ms. Underhill’s net worth had
increased to approximately $6,000,000.00. Further, Ms. Underhill was earning
$65,000.00 a year in 2013, whereas at the time of the divorce, the parties stipulated that
she was expected to find employment that would pay her $40,000.00 annually. By 2013,
Ms. Underhill’s net worth was greater than Mr. Underhill’s net worth.5 Based on these
facts, it is clear that when Mr. Underhill filed his modification petition in 2013, there had
been substantial changes in the parties’ circumstances that significantly “impacted upon
the financial resources and economic needs of the parties.”
Our second inquiry is whether the parties contemplated these changes at the
time of their divorce. This Court has held that “[i]n order to satisfy the requirement of a
substantial change in circumstances necessary to grant a modification in support
obligations, the change must be one which would not reasonably have been expected at
the time of the divorce decree.” Syllabus Point 4, Goff v. Goff, supra. The three
substantial changes in circumstances raised by Mr. Underhill are (1) that he lost his job,
(2) that Ms. Underhill’s net worth greatly increased due to the inheritance she received
and to the “profit units” becoming valuable, and (3) that Ms. Underhill is earning
$25,000.00 more per year than was anticipated at the time of the divorce.
5
Ms. Underhill’s brief to this Court notes that Mr. Underhill’s net worth in 2015 is
“in excess of $5,000,000.00.” Ms. Underhill does not dispute that her net worth is
approximately $6,000,000.00.
7
Mr. Underhill lost his job in 2013. The parties contemplated this possibility
at the time of their divorce. However, the final divorce order states that if Mr. Underhill
were to lose his job, he could seek a modification of the spousal support obligation during
the period when his obligation was otherwise non-modifiable (the first eighteen months
after the divorce). Therefore, although contemplated by the parties, this change in
circumstance weighs in favor of permitting a modification of the spousal support
obligation because the final divorce order expressly permits such a modification:
“Petitioner’s obligation . . . is non-modifiable for a period of eighteen (18) months of the
thirty–six (36) unless Petitioner loses his current employment and is unable to find
commensurate employment within 90 days, at which time Petitioner may file a motion
for a modification[.]”
The second change in the parties’ circumstances raised by Mr. Underhill is
that Ms. Underhill’s net worth increased from $2,300,000.00 to approximately
$6,000,000.00 through an inheritance and through the “profit units” becoming valuable.
At the time the final divorce order was entered, both parties anticipated receiving an
inheritance at some future date. While a potential inheritance was generally
contemplated, the spousal support provision contained in the final divorce order does not
address either party receiving an inheritance, nor does it exclude a potential inheritance
from being considered during a future modification proceeding. Similarly, neither party
knew whether the “profit units” received by Ms. Underhill at the time of the divorce
would produce value. The value of the “profit units” was contingent on whether Mr.
Underhill’s private employer would go public. When the parties divorced in 2011, it was
unknown if or when this event would occur.
Finally, it is undisputed that the spousal support provision contemplated
that Ms. Underhill would find employment that was expected to pay her $40,000.00
annually. By 2013, Ms. Underhill was earning substantially more than was anticipated at
the time of the divorce—she was earning $65,000.00 a year.
Based on the foregoing, we conclude that there were substantial changes in
the parties’ circumstances and that these changes were not reasonably expected by the
parties at the time of their divorce. These changed circumstances were highly relevant to
the family court’s analysis of the parties’ financial resources. We therefore find that the
family court did not abuse its discretion by considering the changes in circumstances
raised by Mr. Underhill.
The second error raised by Ms. Underhill is that the family court erred by
considering her increased net worth during the modification proceeding. Ms. Underhill
asserts that the spousal support provision contained in the final divorce order precludes
consideration of her financial needs and monthly expenses in a modification proceeding.
Ms. Underhill argues that because her financial needs should not have been considered,
8
the family court erred by finding that her increased net worth ($2,300,000.00 at the time
of the divorce to $6,000.000.00 in 2013) constituted a substantial change in circumstance.
The spousal support provision contains one sentence addressing the parties’
monthly expenses and financial needs. It states, “For purposes of determining the
amounts of alimony the parties have not stipulated to either party’s monthly expenses or
financial needs.” Ms. Underhill argues that this sentence precludes her increased net
worth from being considered in a subsequent modification proceeding. We disagree.
Neither this sentence, nor any other part of the spousal support provision, contains any
language limiting consideration of Ms. Underhill’s financial resources during a
subsequent modification proceeding. The spousal support provision provides only one
restriction on modification—it states that the first eighteen months of the agreement were
non-modifiable unless Mr. Underhill lost his job during that period. The spousal support
provision does not restrict either party from raising the financial resources of the other
party in a subsequent modification proceeding. Rather, the spousal support provision
contains the broad, general statement that the obligation was modifiable by either party
after eighteen months: “After the eighteen (18) months this amount is modifiable by
either party upon a proper Motion to the Court.” We therefore find that the family court
did not abuse its discretion by considering Ms. Underhill’s increased net worth.
Ms. Underhill also argues that the family court erred by not considering Mr.
Underhill’s gross income from sources other than his former employer. We agree with
Ms. Underhill that the family court should have considered Mr. Underhill’s income from
sources other than his former employer. In Syllabus Point 2 of Yanero v. Yanero, 171
W.Va. 88, 297 S.E.2d 863 (1982), this Court explained that a court in a spousal support
modification proceeding should “consider the financial needs of the parties, their incomes
and income earning abilities and their estates and the income produced by their estates in
determining the amount of [spousal support] to be awarded in a modification
proceeding.” However, because we determined that the family court did not err by
considering Ms. Underhill’s increased net worth, we find that, under the facts of the
instant case, the family court’s failure to consider Mr. Underhill’s income from sources
other than his former employer was harmless error. Ms. Underhill asserts that when
considering those other sources of income, Mr. Underhill’s net worth is approximately
$5,000,000.00. By comparison, Ms. Underhill’s net worth is approximately
$6,000,000.00. Therefore, even if the family court had considered Mr. Underhill’s gross
income from sources other than his former employer, its ultimate determination would
not have changed because its ruling was largely predicated on Ms. Underhill’s need for
spousal support having decreased due to her increased net worth. “‘The sole purpose of
an award of [spousal support] is to provide for the support of a former spouse.’ Syl. Pt. 3,
in part, Clay v. Clay, 182 W.Va. 414, 388 S.E.2d 288 (1989).” Syllabus Point 6, Lucas v.
Lucas, supra.9
The final issue we address is Mr. Underhill’s cross-assignment of error in
which he asserts that the family court erred by failing to completely terminate his spousal
support obligation. The family court explained its ruling to modify the spousal support
obligation as follows: “The court further finds that while [Mr. Underhill] lost his
employment, he, nonetheless, is still receiving earnings from that employment[.]” The
circuit court’s order affirming the family court’s ruling states, “the Court cannot find that
the family court abused its discretion in modifying [Mr. Underhill’s] spousal support
obligation to [Ms. Underhill] but not completely terminating said spousal support.”
Our standard of review for this issue is the same one applied by the circuit
court—abuse of discretion. In discussing the application of the abuse of discretion
standard, this Court has consistently stated that under such standard, “we will not disturb
a . . . court’s decision unless the . . . court makes a clear error of judgment or exceeds the
bound of permissible choices in the circumstances.” Wells v. Key Commc’ns, L.L.C., 226
W.Va. 547, 551, 703 S.E.2d 518, 522 (2010) (citation omitted). This Court has
invariably stated that “[u]nder abuse of discretion review, we do not substitute our
judgment for the [lower] court’s.” State v. Taylor, 215 W.Va. 74, 83, 593 S.E.2d 645, 654
(2004) (Davis, J., dissenting) (citing Burdette v. Maust Coal & Coke Corp., 159 W.Va.
335, 342, 222 S.E.2d 293, 297 (1976)). Thus, the family court’s ruling is entitled to
significant deference. Absent an abuse of discretion, this Court must refrain from
substituting its judgment for that of the family court, even if this Court might have
decided a case differently.
In the present case, we do not find that the family court abused its
discretion by modifying, rather than completely terminating, Mr. Underhill’s spousal
support obligation. The family court set forth a detailed order explaining the changed
circumstances of the parties and explaining its reasons for modifying the spousal support
obligation. Under W.Va. Code § 48-5-701, the family court was authorized to modify the
spousal support obligation “as the circumstances of the parties may require.” The family
court noted that while Mr. Underhill lost his job in 2013, he was going to receive
substantial income from his former employer until March 2015.6 Because Mr. Underhill
would continue to receive this substantial compensation from his former employer until
March 2015, the family court determined that he should continue to make spousal support
payments until that date. After review, we find no abuse of discretion in the family
court’s ruling. We consequently affirm the decision of the family court, as adopted by
the lower court.
For the foregoing reasons, we affirm the circuit court’s September 11,
2014, order.
6
The family court stated that between March 1, 2014, and March 31, 2015, Mr.
Underhill “will receive a total of $838,628.00” from his former employer.
10
Affirmed.
ISSUED: November 9, 2015
CONCURRED IN BY:
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
CONCURRING AND WRITING SEPARATELY:
Justice Robin Jean Davis, joined by Chief Justice Workman:
In this case, the majority has affirmed the circuit court’s modification of
alimony. I agree with the majority’s conclusions under the current factual circumstances
presented. I write separately to highlight the fact that, while the alimony, also commonly
referred to as spousal support, in this case has been suspended as of April 1, 2015, the
family court retains continuing jurisdiction over this matter until Mrs. Underhill reaches
the age of sixty-six and one half. In other words, either party can, at some point in the
future before Mrs. Underhill attains the requisite age, petition the family court for
modification of spousal support in the event that the circumstances of the parties so
require. See W. Va. Code § 48-5-701 (2001) (Repl. Vol. 2014) (“After the entry of a
final divorce order, the court may revise the order concerning spousal support . . . and
enter a new order concerning the same, as the circumstances of the parties may require.”).
See also Douglas v. Douglas, 171 W. Va. 162, 163, 298 S.E.2d 135, 136-37 (1982) (per
curiam) (“Our general rule is that the circuit court which grants a divorce is vested by
statute with continuing subject-matter jurisdiction to modify or alter its original order as
to alimony . . . as the changed circumstances of the parties . . . may require.” (citations
omitted)).
Contrary to the argument of Mrs. Underhill, that no modification could be
had unless Mr. Underhill’s annual income from any source fell below $450,000.00, and
Mr. Underhill’s argument, that his spousal support obligation should be completely
terminated (which would necessarily foreclose modification), there is nothing in this case
to preclude a future modification under the appropriate circumstances. In this regard, the
Legislature has expressly declared that
[a]ny award of periodic payments of spousal support shall be deemed to be
judicially decreed and subject to subsequent modification unless there is
some explicit, well expressed, clear, plain and unambiguous provision to
11
the contrary set forth in the court-approved separation agreement or the
order granting the divorce. . . .
W. Va. Code § 48-6-201(b) (2001) (Repl. Vol. 2014). The final order granting spousal
support in this case contained such an “explicit, well expressed, clear, plain and
unambiguous provision” restricting modification. W. Va. Code § 48-6-201(b). However,
that provision applied only during the first eighteen months during which spousal support
was paid:
Petitioner’s obligation of Ten Thousand Dollars ($10,000.00) per month is
non-modifiable for a period of eighteen (18) months . . . unless Petitioner
loses his current employment and is unable to find commensurate
employment within 90 days, at which time Petitioner may file a motion for
modification . . . . After the eighteen (18) months[,] this amount is
modifiable by either party upon a proper Motion to the Court.
(Emphasis added). The foregoing language is clear in stating that, after the expiration of
eighteen months, either party could seek modification by proper motion.
Mrs. Underhill also is mistaken in her belief that, in considering any
petition for modification, the family court is precluded from considering either party’s
monthly expenses or financial needs. In this regard, the final order awarding spousal
support simply acknowledged that, “[f]or purposes of determining the amounts of
alimony[,] the parties have not stipulated to either party’s monthly expenses or financial
needs.” The parties’ failure to stipulate their monthly expenses or financial needs simply
does not prohibit consideration of such factors in connection with a petition for
modification. Indeed, the fact that a petition for modification is proper only upon a
substantial change of circumstances necessitates a consideration of those changed
circumstances in evaluating whether and to what extent a modification is warranted. See
Metz v. Metz, 217 W. Va. 468, 473, 618 S.E.2d 477, 482 (2005) (per curiam) (“This
Court has also consistently held that the party seeking the modification has the burden of
showing that a substantial change of circumstances occurred.” (citations omitted));
Hickman v. Hickman, 210 W. Va. 608, 610, 558 S.E.2d 607, 609 (2001) (per curiam)
(“Our cases have held that a trial court may modify a divorce decree when there has been
a substantial change of circumstances which warranted a modification.” (citations
omitted)); Goff v. Goff, 177 W. Va. 742, 745, 356 S.E.2d 496, 499 (1987) (“The general
rule is that, upon a showing of substantially changed circumstances, it is within the sound
discretion of the trial court to award or modify the amount of child support or alimony
payments.” (citations omitted)). See also W. Va. Code § 48-5-701 (“After the entry of a
final divorce order, the court may revise the order concerning spousal support or the
maintenance of the parties and enter a new order concerning the same, as the
circumstances of the parties may require.”).
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Finally, the need to consider the particular circumstances of the parties in
considering modification of an award of spousal support was recognized when this Court
observed that,
[i]n fixing the amount of spousal support, if any, to be ordered where
modification is requested . . . the courts must also be guided by the specific
list of factors set forth by the West Virginia Legislature for determining
spousal support in the original instance, pursuant to West Virginia Code §
48-6-301 (2001) [(Repl. Vol. 2014)].
Lucas v. Lucas, 215 W. Va. 1, 8, 592 S.E.2d 646, 653 (2003) (footnote omitted).1 Thus,
for the forgoing reasons, I respectfully concur. I am authorized to state that Chief Justice
Workman joins me in this concurring opinion.
1
The statutory list of factors referred to in Lucas v. Lucas, 215 W. Va. 1, 8, 592
S.E.2d 646, 653 (2003), states, as follows:
The court shall consider the following factors in determining the amount of
spousal support, child support or separate maintenance, if any, to be
ordered under the provisions of parts 5 [§§ 48-5-501 et seq.] and 6 [§§ 48­
5-601 et seq.], article five of this chapter, as a supplement to or in lieu of
the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived
together as husband and wife;
(3) The present employment income and other recurring earnings of each
party from any source;
(4) The income-earning abilities of each of the parties, based upon such
factors as educational background, training, employment skills, work
experience, length of absence from the job market and custodial
responsibilities for children;
(5) The distribution of marital property to be made under the terms of a
separation agreement or by the court under the provisions of article seven
of this chapter, insofar as the distribution affects or will affect the earnings
of the parties and their ability to pay or their need to receive spousal
support, child support or separate maintenance: Provided, That for the
purposes of determining a spouse’s ability to pay spousal support, the court
may not consider the income generated by property allocated to the payor
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spouse in connection with the division of marital property unless the court
makes specific findings that a failure to consider income from the allocated
property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each
party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic, education or
employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support, child support or
separate maintenance can substantially increase his or her income-earning
abilities within a reasonable time by acquiring additional education or
training;
(11) Any financial or other contribution made by either party to the
education, training, vocational skills, career or earning capacity of the other
party;
(12) The anticipated expense of obtaining the education and training
described in subdivision (10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the parties and their
minor children;
(15) The tax consequences to each party;
(16) The extent to which it would be inappropriate for a party, because said
party will be the custodian of a minor child or children, to seek employment
outside the home;
(17) The financial need of each party;
(18) The legal obligations of each party to support himself or herself and to
support any other person;
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(19) Costs and care associated with a minor or adult child’s physical or
mental disabilities; and
(20) Such other factors as the court deems necessary or appropriate to
consider in order to arrive at a fair and equitable grant of spousal support,
child support or separate maintenance.
W. Va. Code § 48-6-301(b) (2001) (Repl. Vol. 2014).
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