McVay v. McVay
Annotate this CaseJanuary 1993 Term
___________
No. 19903
___________
ANITA J. McVAY,
Plaintiff Below, Appellant
v.
WILLIAM A. McVAY,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Nicholas County
Honorable James H. Wolverton, Judge
Civil Action No. 87-C-9
REVERSED AND REMANDED
___________________________________________________
Submitted: January 20, 1993
Filed: March 25, 1993
J. Michael Anderson
Rainelle, West Virginia
Attorney for the Appellant
Travers R. Harrington
Fayetteville, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Questions relating to alimony and to the maintenance
and custody of the children 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." Syl., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).
2. "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." Syl. pt. 3, Molnar v. Molnar, 173 W. Va.
200, 314 S.E.2d 73 (1984).
3. "The right to fix the amount of alimony rests in the
sound discretion of the chancellor, and this Court will not disturb
his judgment unless he has grossly abused such discretion." Syl.,
Shannon v. Shannon, 165 W. Va. 662, 270 S.E.2d 785 (1980), citing
syllabus point 2, Henrie v. Henrie, 71 W. Va. 131, 76 S.E. 837
(1912).
Per Curiam:
This action is before this Court upon an appeal from the
January 9, 1990 order of the Circuit Court of Nicholas County, West
Virginia. The circuit court granted the parties a divorce based
upon the grounds of irreconcilable differences. The appellant was
awarded $867.06 per month in alimony, but this amount was
subsequently reduced to $1 per year. On appeal, the appellant asks
that the initial alimony award of $867.06 be reinstated. This
Court has before it the petition for appeal, all matters of record
and the briefs of counsel. For the reasons stated below, the
judgment of the circuit court is reversed and remanded.
I
The parties were married on August 9, 1975, in
Indianapolis, Marion County, Illinois, and they last cohabited as
husband and wife in Summersville, Nicholas County, West Virginia.
One child was born of the marriage, Christina Kathleen McVay, on
November 11, 1980.
The appellant sought a divorce from the appellee based
upon the grounds of irreconcilable differences, and the appellant
admitted that irreconcilable differences exist between the parties.
Subsequently, hearings were held and on March 8, 1988, the family
law master issued a recommended decision. In relevant part, the
family law master recommended, and the trial judge agreed, that the
appellant be awarded $632.94 per month in child support and $867.06
per month in alimony for a period of six years for a total of
$1,500.00 per month.See footnote 1 On April 1, 1994, the alimony award is to
be reduced to $275.00 per month for a period of 24 months and shall
be reduced thereafter by an additional $275.00.See footnote 2
On April 20, 1989, the appellee filed a petition to
modify the child support award and eliminate the alimony award on the basis that the appellant was employed and living with another
man. A hearing on the petition to modify was held on July 8, 1989,
before the family law master. The parties agreed that the child
support award should remain unchanged. The evidence revealed that
the appellant is employed as a secretary at a veterinary hospital
earning $400.00 per week. Further, the evidence revealed that the
appellant was living with a man who earns approximately $1,000.00
per month, but contributes very little to the household expenses. The family law master stated that initially the alimony
was predicated upon the appellant's prior testimony that she was
not suited for any employment except for "fast food" due to her
training, education and experience. The family law master went on
to conclude that it is apparent that the appellant has progressed
rapidly by way of training, experience, and education, and thus,
the original need for alimony has disappeared. The family law
master recommended that the appellant's alimony award be reduced to
$1 per year, effective July 28, 1989. The recommendation was
approved by the circuit court on January 9, 1990.
It is from the order of January 9, 1990, that the
appellant appeals to this Court. See footnote 3
II
The primary issue in this case is the appellant's
contention that she is entitled to the initial alimony award of
$876.06. In support of the appellant's contention, she cites three
points of error committed by the circuit court in reducing the
alimony award.
It is well recognized that "[q]uestions relating to
alimony and to the maintenance and custody of the children 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." Syl.,
Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). In this
case, the circuit court has clearly abused its discretion by
reducing the appellant's alimony award from $867.06 per month to $1
per year.
The appellant's first argument concerns the appellant's
right to alimony from her former husband in light of her
cohabitation with another man. More specifically, the appellant
argues that her alimony award should not be reduced because she was
living with another man and not her husband. The appellant asserts
that it is obvious that cohabitation was a primary influence on the
trial court's decision because of the drastic reduction in the
amount of the award, $867.06 a month to $1 per year. It should be
noted that the record is unclear as to whether the couple's
cohabitation was the primary reason behind the trial court's
decision to reduce the appellant's alimony award. Nevertheless, we
agree with the appellant, as it is evident from the transcripts of
the modification hearings, that the family law master's primary
focus was on the appellant's cohabitation with another man rather
than the changed circumstances that evolved as a result of the
appellant finding employment.
The court's authority to modify an alimony award is set
forth in W. Va. Code, 48-2-15(e) [1992]:
At any time after the entry of an order
pursuant to the provisions of this section,
the court may, . . ., revise or alter such
order concerning the maintenance of the
parties, or either of them, and make a new
order concerning the same, . . ., as the
altered circumstances or needs of the parties
may render necessary to meet the ends of
justice.
In Wight v. Wight, 168 W. Va. 334, 284 S.E.2d 625 (1981),
the appellant argued that the appellee's cohabitation with another
man should relieve the appellant from the obligation of paying
alimony. We concluded in Wight that W. Va. Code, 48-2-15 [1992]
"makes no reference to the conduct of the parties after the
granting of a divorce. Rather it makes their financial
circumstances and needs and the requirements of justice the factors
to be considered in determining whether an alimony award should be
modified." Id. at 337, 284 S.E.2d at 626-27. This point was
reiterated in Judith R. v. Hey, 185 W. Va. 117, 121, 405 S.E.2d 447, 451 (1990), where we held that "an ex-wife's cohabitation with
an adult male not her husband does not constitute grounds for
termination or reduction of alimony award absent showing of change
in financial condition of ex-wife by reason of contribution by the
person with whom she cohabits."
In applying the analysis set forth in Judith R. v. Hey,
to the facts in this case, the record fails to reflect a change in
the appellant's financial condition due to contributions made by
the man with whom the appellant cohabits. Any sort of change in
the appellant's financial status can be attributed to the
appellant's individual efforts to improve her life, as well as her
daughter's life. Furthermore, justice would not require such a
drastic reduction in alimony in light of the fact that the
appellant has incurred additional expenses to obtain the education
and training she needs to become self-supporting. Rehabilitative
alimony was designed for this very purpose. See syl. pt. 1, Molnar
v. Molnar, 173 W. Va. 200, 314 S.E.2d 73 (1984).
Next, the appellant argues that, when reducing her
alimony award, the circuit court should have considered the
additional living expenses she has incurred in comparison to her
weekly income.
As the case law mandates, "[o]ur 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 and child support, as the changed
circumstances of the parties may . . . require." Douglas v.
Douglas, 171 W. Va. 162, 163, 298 S.E.2d 135, 136-37 (1982). To
determine if a change in circumstances has occurred, in order to
justify a reduction in alimony, "by its terms W. Va. Code, 48-2-16
[1984] requires a circuit court to consider the financial needs of
the parties, their incomes and income earning abilities . . . 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).
Since the entry of the divorce order, the appellant is no
longer unemployed and, at the time of the modification hearing, she
was earning $400 per week as a secretary at a veterinary hospital.
The appellee's employment status has remained unchanged. Further,
the appellant has incurred additional expenses, such as rent,
utilities, tuition, and child care, as well as loan and car
payments. It would appear that the appellant's change in lifestyle
has created a "change in circumstances" per Douglas, supra.
This change may justify a reduction in the alimony award
but it does not call for a virtual elimination of alimony. We,
therefore, remand to the circuit court for reconsideration of the
award in accordance with the principles enunciated herein.
We have recognized the pertinent areas of inquiry in
determining if rehabilitative alimony is appropriate as outlined in
syllabus point 3 of Molnar, supra:
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.
The appellant contends that she is entitled to reinstatement of the
initial alimony award based upon her ability to satisfy the
aforementioned requirements. In reference to the first factor, the
appellant has dedicated eleven years of her life to the parties'
marriage, she is now in her mid-forties and in relatively good
health; however, she lacks a formal education. During the
marriage, the appellant was a homemaker, but since the dissolution
of the parties' marriage, the appellant has enrolled and
participated in undergraduate college courses. In regard to the
second factor of the Molnar checklist, the appellee obviously has
the ability to pay alimony. The appellee is the chief financial
officer of Bright of America, and he earns $65,000.00 annually,
plus discretional annual bonuses of $5,000.00. Finally, the third
factor, the continuing jurisdiction of the court to modify a
rehabilitative alimony award, is ordinarily left to the sound
discretion of the trial court. Thus, irrespective of the fact that
the appellant fulfilled the Molnar requirements, the circuit court,
nonetheless, reduced the alimony award to $1 per year.
This Court believes the facts of this case show that the
trial judge, in making the modification ruling, failed to
adequately consider the factors enumerated in Molnar. This Court
also believes that a consideration of those factors supports a
finding that the trial judge abused its discretion in reducing
alimony to $1 per year.
The appellee's final argument is that the divorce order
specified when the alimony award was subject to modification, and
thus, the trial court erred in reducing the alimony award prior to
the time designated in the final divorce order.
The trial judge has the authority to fix and/or modify an
alimony award. W. Va. Code, 48-2-15(a) & (e) [1992]. In applying
the aforementioned provisions, this Court has held that "the right
to fix the amount of alimony rests in the sound discretion of the
chancellor, and this Court will not disturb his judgment unless he
has grossly abused such discretion." Syl., Shannon v. Shannon, 165
W. Va. 662, 270 S.E.2d 785 (1980), citing syllabus point 2, Henrie
v. Henrie, 71 W. Va. 131, 76 S.E. 837 (1912).
The trial judge obviously has the authority to order and
modify an alimony award, and with this authority comes
responsibility. The appellant's rehabilitative alimony award
should not have been drastically reduced in the midst of her
rehabilitation.
Based upon the foregoing, we find that the circuit court
abused its discretion in reducing the appellant's rehabilitative
alimony award from $867.06 per month to $1 per year. It is unclear
as to whether cohabitation was the primary reason behind the trial
court's decision to reduce the appellant's alimony award. Yet, the
hearing transcript demonstrates the fact that cohabitation was
definitely a consideration of the family law master in arriving at
a final decision. Nevertheless, the record fails to reflect a
change in the appellant's financial condition due to contributions
made by the man with whom the appellant cohabits. However, the
trial judge was correct, when modifying the alimony award, to
consider the change in the appellant's employment status and change
in the appellant's lifestyle as a result of her employment. In
determining whether an alimony award should be modified, the trial
court's primary focus should be on the changed circumstances of the
parties. We, therefore, remand the case to the Circuit Court of
Nicholas County for reconsideration of the award in accordance with
the principles enunciated herein.
Reversed and remanded.
Footnote: 1 More specifically, in the family law master's
recommended order of March 8, 1988, and the trial judge agreed,
that:
[T]he plaintiff is entitled to alimony and the defendant shall pay unto the plaintiff the sum of six hundred thirty dollars ($630.00) per month by way of alimony and in addition thereto the defendant shall make the plaintiff's car payment in the amount of two hundred forty-one dollars ($241.00) per month until said vehicle is paid-off, beginning June 15, 1988; it is the intention of the court for a combined alimony and child support income of no less than one thousand five hundred dollars ($1,500.00) per month for a period of six years, subsequent to the entry of this order in connection herewith; therefore, in the event the defendant shall pay off the 1985 Chrysler automobile, which said payment shall be considered as part of the alimony award, prior to the expiration of six (6) years, then the alimony awarded herein shall increase accordingly to eight hundred and sixty-seven dollars and 06/100 ($869.06) per month[.] Footnote: 2 The language of the recommended order does not track the language of the order entered by the trial court regarding the reduction in the alimony award beginning April 1, 1994. The family law master's recommended order states, "on April 1, 1994, the alimony to be paid by the defendant shall be reduced by $275.00 per month for a period of 24 months, and shall be reduced thereafter by an additional $275.00." (emphasis added). The trial court's final order states, in relevant part, that "beginning April 1, 1994, the alimony paid by the defendant unto the plaintiff shall be reduced to two hundred seventy-five dollars per month for a period of twenty-four months and shall be reduced thereafter by an additional two hundred seventy-five dollars ($275.00)." (emphasis added). This explanation is for clarification purposes only and does not affect the trial court's modification of the alimony award or this Court's decision in this case. Footnote: 3 The delay in the processing of the appeal was caused by the failure of the appellant to pay the costs of reproducing the record. The appellant's motion for leave to move to reverse was granted on October 21, 1991, and the case proceeded on the original record.
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