Carol Elaine Warren v. Todd E. Garland

No. 14-0429, Warren v. Garland
FILED
April 10, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Workman, Chief Justice, concurring:
I concur with the result reached by the majority regarding the amount and
duration of spousal support to Ms. Warren. Without a doubt, the circuit court misapplied
our holding in Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012), when it reversed
the order of the family court. In Mayle, this Court did not create a rigid prohibition
against any prospective increases of spousal support. Rather, Mayle required only that
there be sufficient evidence in support of such a change. In this case, the family court
articulated fact-based reasons to justify the increase in spousal support that were tailored
to the needs and circumstances of the parties: in three years, Mr. Garland would
substantially reduce the marital credit card indebtedness and abolish his attorney fee
obligations. This finding was in no way speculative. In fact, had we affirmed the circuit
court’s order, Ms. Warren would be unjustly penalized for taking less in spousal support
temporarily so that Mr. Garland could pay off this marital debt.
I write separately to spotlight the fallacy of any suggestion that Ms. Warren
should just wait three years to file a motion for modification of spousal support pursuant
to West Virginia Code § 48-6-201(b) (2014), when the financial situation of the parties is
further disparate. In Zirkle v. Zirkle, 172 W.Va. 211, 304 S.E.2d 664 (1983), we
recognized that to justify a modification of a spousal support award already established,
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the party seeking modification must show that there has been a substantial change in the
circumstances of the parties. See also Louk v. Louk, 184 W.Va. 164, 166, 399 SE.2d 875,
877 (1990) (finding no substantial change in parties’ circumstances to justify husband’s
petition for modification of original spousal support award after wife found gainful
employment considering husband’s obligation was not an inordinate sum, given his
income). We have placed the burden of showing a substantial change of circumstances on
the party petitioning for modification of the spousal support award. Syl. Pt. 3, Goff v.
Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).
Typically, changes in circumstances within the contemplation of the parties
at the time of the final hearing cannot provide a basis for modifying a spousal support
award. See Syl. Pt. 4, Goff, 177 W.Va. 742, 356 S.E.2d 496 (“In 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.”). See generally, Calvert v. Calvert, 336
S.E.2d 884, 889 (S.C. Ct. App. 1985) (refusing to adjust spousal support where alleged
substantial change was known and contemplated by parties at time of decree).
In the instant case, the family court’s spousal support award to Ms. Warren
was based on Mr. Garland’s increased ability to pay a higher amount in three years when
his attorney fee obligation was paid in full and his marital credit card payment was
reduced or paid off. Because these financial circumstances were known, and easily
quantifiable, at the time of the final hearing, I do not believe that any subsequent petition
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for modification would be successful. For that reason, the family court acted judiciously
when it addressed these foreseeable changes and provided for the future increase in the
amount of the spousal support to Ms. Warren.
For the foregoing reasons, I respectfully concur.
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