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Heather R. Hussell, Esq.
| Michael A. Woelfel, Esq.
Huntington, West Virginia
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
This case is before us on
appeal of a final order of the Circuit Court of Cabell County, entered on March
29, 1999. The order of the circuit court made findings of fact and conclusions
of law that were contrary to the findings of fact and conclusions of law recommended
by the family law master. The appellant, Carlis Adkins (appellant),
contends that the circuit court erred in rejecting the family law master's recommended
order, and that the circuit court erred in holding that the appellant was required
to continue making alimony payments. Following our review of the record and
applicable law, we find that the circuit court erred. We therefore reverse the
order of the circuit court and remand this case for entry of an order in conformity
with this opinion.
(e) After the entry of an
order pursuant to the provisions of this section, the court may revise the order
concerning the maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
We have stated 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). We have placed the burden of showing a substantial change of circumstances on the party petitioning for modification of the alimony award. Syllabus Point 3, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). To determine if there has been a substantial change of circumstances, the circuit court must 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 alimony to be awarded in a modification proceeding. Syllabus Point 2, in part, Yanero v. Yanero, 171 W.Va. 88, 297 S.E.2d 863 (1982).
In reviewing the present case, this Court finds that the family law master correctly held that there had been a substantial change of circumstances. The record reveals that, following his retirement, the appellant's monthly income went from $2,083.00 to $810.00, from which the appellant was expected to pay $518.00 ($300.00 alimony and $218.00 mortgage) a month to the appellee, leaving the appellant with $292.87 a month. Conversely, after the appellant's retirement, the appellee's monthly income went from $518.00 to $1,093.00. Following Yanero, supra, and Goff, supra, it is clear that the appellant's retirement created a substantial change of circumstances. Having determined that there was a substantial change of circumstances, we must now examine whether the alimony granted in the 1986 divorce order was subject to modification. The family law master determined that the alimony awarded to the appellee was subject to modification; however, the circuit court judge found that the original alimony award was contractual and so not subject to modification.
We note that the parties in this action entered into a separation agreement that was later incorporated into the 1986 divorce order. W.Va. Code, 48-2-16(a) See footnote 4 provides, in pertinent part, that:
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 the divorce.
In interpreting this statute, this Court has held that:
In all domestic relations cases where the final order is entered after 1 February 1979 wherever the court provides for a periodic payment (alimony) to a party either by reference to a property settlement agreement in the divorce decree itself or by incorporation of the property settlement agreement into the decree, regardless of whether the words ratified, approved, confirmed, or merged are used, it shall be presumed that such award of periodic payments is judicially decreed alimony or alimony and child support, and unless there are specific words in the property settlement agreement or divorce decree to the contrary, any award of periodic payment shall be governed by the law of alimony and child support and not by contract law.
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 Points 3 and 5, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978).
The alimony granted the appellee in the 1986 divorce order was for periodic payments, and we find no express language in the separation agreement or in the divorce order indicating that the periodic alimony is not subject to modification. Furthermore, as set forth in Syllabus Point 3 of Hereford, supra, unless there are specific words in the property settlement agreement or divorce decree to the contrary, any award of periodic payment shall be governed by the law of alimony and child support and not by contract law. Neither the separation agreement nor the divorce decree provides that the awarded alimony would be governed by contract law; consequently, the alimony award is governed by the law of alimony. Because we can find no expressed language in either the separation agreement or the divorce decree indicating that the periodic payments of alimony were to be construed under contract law or any expressed language indicating that the alimony was not subject to modification, we find that the alimony provided for in the 1986 divorce decree was subject to modification.
Consequently, we find that
the family law master had substantial evidence to support his recommendation
that the alimony awarded to the appellee was subject to modification and, due
to the substantial change in circumstances experienced by the parties, it was
appropriate to stop the $300.00 per month alimony payment. We find that the
circuit court erred in substituting its judgment for that of the family law
master regarding the alimony. Accordingly, on remand, the circuit court should
reinstate the family law master's recommendation to cease the payment of $300.00
per month alimony.
We next examine the appellant's other assignment of error, that the circuit court erred in requiring the appellant to pay $1,500.00 for the appellee's attorney's fees after the family law master had recommended that each party be responsible for their own attorney fees.
As a general rule, a trial court has discretion to award attorney fees in a proceeding to modify alimony. Goff v. Goff, 177 W.Va. 742, 747, 356 S.E.2d 496, 501 (1987). We have stated that the principal inquiry in determining whether to compel a party to pay the attorney fees for the other party is whether the financial circumstances of the parties dictate that the award of attorney's fees is necessary. In Langevin v. Langevin, 187 W.Va. 585, 590, 420 S.E.2d 576, 581 (1992) we stated that the decision regarding payment of attorney's fees is to be made on the basis of a party's financial resources and ability to pay. Additionally, we have held that [t]he touchstone of the award is that one spouse has a significant higher income than the other. Smith v. Smith, 187 W.Va. 645, 650, 420 S.E.2d 916, 921 (1992) (per curiam).
In the case before us, the record indicates that under the family law master's recommendation, the appellant would retain $592.00 per month after paying the appellee's mortgage of $218.00, whereas the appellee would receive $575.00 per month as her share in the appellant's pension and receive $218.00 for her mortgage payment. Under this scheme, we do not find there is a wide discrepancy in income between the appellant and appellee. Consequently, the decision of the family law master not to award attorney fees was not clearly erroneous, and the circuit court's decision to reverse the recommendation of the family law master was in error.