James A. Matish
Clakrsburg, West Virginia
Attorney for the Appellant
Thomas R. Michael
Michael & Kupec
Clarksburg, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
"In all domestic relations cases where the final order is
entered after 1 February 1979 there shall be no special legal
effect in the divorce decree attached to the words 'merged,'
'ratified,' 'confirmed,' 'approved,' 'incorporated,' etc., and
where the parties and the court wish to do something other than
award judicially decreed periodic payments for alimony or alimony
and child support enforceable by contempt and subject to
modification by the court, the parties must expressly set forth the
different terms to which they agree and the court must expressly
indicate his approval of their agreement." Syllabus Point 5, In re
Estate of Hereford, 162 W. Va. 477, 250 S.E.2d 45 (1978).
Reta Mae Blackhurst (the wife) appeals a final order of
the Circuit Court of Harrison County, dated December 6, 1990,
modifying her alimony award. The primary issue on this appeal is
whether the trial court had the jurisdiction to reduce monthly
alimony payments from $1,927.32 to $50.00 because of the
impecunious status of Arthur Allen Blackhurst (the husband). We
find that the trial court did have jurisdiction to modify the
alimony payments. Accordingly, we affirm the trial court's final
In 1980, the parties were divorced. They executed a
property settlement agreement in which the husband agreed to pay
the wife $1,250 per month in alimony. The agreement also provided
for cost-of-living adjustments based on inflation.See footnote 1 By the time
this dispute arose, the alimony payment had increased to $1,927.32.
In December, 1987, the husband decided to decrease the alimony payment to $700 per month. After April of 1988, he ceased making alimony payments altogether. Consequently, the wife filed a petition for contempt in the Circuit Court of Harrison County. By an order entered April 4, 1989, the circuit court found the
husband approximately $37,000 in arrears and awarded the wife this
amount plus interest.
Meanwhile, the husband filed a petition to modify the
divorce decree because his earning capacity had significantly
decreased.See footnote 2 Hearings were held before a family law master to
determine the husband's financial status. The family law master
found that the husband's financial condition warranted reducing his
alimony payment to $50.00 per month. The family law master's
recommended decision was adopted by the circuit court in an order
dated December 6, 1990, and was applied retroactively to January 1,
The wife's principal argument on appeal is that the trial court erred when it amended the alimony award provided for in the 1980 property settlement agreement. The wife contends that because there is no language in the agreement that permits court modification, and because the agreement specifically states that during years eight through fifteen of the settlement agreement alimony may be terminated only by the death of either party or the
remarriage of the wife, the trial court was without jurisdiction to
modify the alimony award.
The husband relies, as did the circuit court, on In re
Estate of Hereford, 162 W. Va. 477, 250 S.E.2d 45 (1978). In
Hereford, we sought to resolve some of our previous domestic
relations cases where we had drawn some rather fine linguistic
distinctions to decide whether a property settlement agreement is
incorporated into a final divorce decree. The consequences of
these distinctions were substantial. If the agreement was not
"merged" into the decree, it was not subject to the court's
continuing jurisdiction. As a consequence, arrearages in alimony
could not be enforced in contempt proceedings, and the court lacked
jurisdiction to modify the award. Enforcement of any arrearages
could only be obtained in a separate action on the agreement. See
Beard v. Worrell, 158 W. Va. 248, 212 S.E.2d 598 (1974); Corbin v.
Corbin, 157 W. Va. 967, 206 S.E.2d 898 (1974).
In Hereford, we held that when the final decree indicates
that the court approves of a property settlement agreement, the
terms of both alimony and child support awards are subject to
future judicial control. In order to avoid the trial court's
continuing jurisdiction, the agreement must expressly provide
otherwise. Furthermore, as we stated in Syllabus Point 5, the
court must approve the language used:
"In all domestic relations cases where the final order is entered after 1
February 1979 there shall be no special legal
effect in the divorce decree attached to the
words 'merged,' 'ratified,' 'confirmed,'
'approved,' 'incorporated,' etc., and where
the parties and the court wish to do something
other than award judicially decreed periodic
payments for alimony or alimony and child
support enforceable by contempt and subject to
modification by the court, the parties must
expressly set forth the different terms to
which they agree and the court must expressly
indicate his approval of their agreement."
See also W. Va. Code, 48-2-16(a (1984).See footnote 3
Here, the final divorce decree stated that the court ratified, approved, and confirmed the property settlement agreement.See footnote 4 There was no language in either the final divorce
decree or the agreement limiting the court's jurisdiction to modify
the alimony award.See footnote 5 Indeed, the final divorce decree provides for
monthly alimony payments of $1,250 per month "beginning with the
month of January 1, 1981, and continuing . . . thereafter until
. . . the further order of this Court." (Emphasis added).
Consequently, Hereford does apply, and the circuit court had the
authority to modify the alimony award.
In the alternative, the wife contends that the amount of the modification was erroneous. Although the husband had little cash available and a small income, the wife argues that he owned several pieces of real estate in which he had equity of over $450,000. The husband vigorously disputes this factual allegation. The husband contends that he had to file bankruptcy in June, 1989, and that the bankruptcy schedules, which were filed below, prove otherwise. Most of the husband's real estate holdings are encumbered with sizable deeds of trust. The husband argues that the bankruptcy court is in control of this property and has begun to liquidate it. He asserts that his wife is aware of his predicament because she appeared in the bankruptcy proceeding. We
have no need
to resolve this factual issue. However, the wife is not foreclosed
from filing for a modification of alimony because under Hereford
the circuit court has continuing jurisdiction.
Therefore, the judgment of the Circuit Court of Harrison
County is affirmed.
Footnote: 1The husband was also paying his wife's medical insurance premium totaling $83.14 per month.
Footnote: 2At the time of the divorce, the husband was the owner and president of Al Schroath Oldsmobile and was also self-employed as a property owner/developer. His annual income was between $115,000 and $200,000. In 1983, the husband was disabled and was unable to continue working. He now receives $791 per month from Social Security disability. The record does not disclose the wife's income. She has sold the family home, which she received under the property settlement agreement, for a net amount of $130,000 after paying off the deed of trust. She also has bonds worth $30,000, which she had inherited from her father.
Footnote: 3W. Va. Code, 48-2-16(a), provides, in pertinent part:
"Any award of periodic payments of alimony
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 the
contrary set forth in the court approved
separation agreement or the order granting
Footnote: 4Specifically, the final divorce decree stated:
"And it appearing to the Court that Reta Mae Blackhurst and Arthur Allen Blackhurst have entered into a Property Settlement Agreement, in writing, bearing the date the 23rd day of June, 1980, a copy of which was introduced into evidence at the hearing in this matter, and that said Agreement is fair and equitable, it is therefore ADJUDGED, ORDERED and DECREED that said Agreement be, and the same is hereby ratified, approved and confirmed as a
settlement of property rights of the parties
Footnote: 5The language in the agreement relied on by the wife prohibits the trial court from terminating alimony unless either party dies or the wife remarries. There is no clause in the agreement which explicitly prohibited the trial court from modifying the award after seven years of payments had been made.