Deborah E. Reed
Reed, Moffatt & Associates Charleston, West Virginia
Charleston, West Virginia Attorney for the Appellee
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
reviewing challenges to findings made by a family law master that also were
adopted by a circuit court, a three-pronged standard of review is applied. Under
these circumstances, a final equitable distribution order is reviewed under
an abuse of discretion standard; the underlying factual findings are reviewed
under a clearly erroneous standard; and questions of law and statutory interpretations
are subject to a de novo review. Syllabus point 1, Burnside
v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995).
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. Syllabus, Nichols v. Nichols, 160 W. Va. 514,
236 S.E.2d 36 (1977).
Karen Joyce Hickman, appellant/defendant below (hereinafter referred to as Ms. Hickman), appeals from an order of the Circuit Court of Kanawha County which modified her divorce decree. The modification order reduced her monthly child support payment, terminated alimony and terminated the payment of health insurance premiums made by Ms. Hickman's former spouse, Edison R. Hickman, II, appellee/plaintiff below (hereinafter referred to as Mr. Hickman). In addition, the order required Ms. Hickman pay to Mr. Hickman approximately $18,131.40 for overpayments made during the pendency of the modification proceedings. Here, Ms. Hickman requests this Court to reinstate the terms of the divorce decree. Alternatively, Ms. Hickman asserts that the trial court abused its discretion by imposing a retroactive judgment of $18,131.40 as overpayments against her. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm, in part, and reverse, in part, the decision of the Circuit Court of Kanawha County, and remand the case for further proceedings.
In October of 1994, Mr. Hickman
filed for divorce. On February 25, 1997, the family law master submitted a recommended
order. The relevant factors of the recommended order were that the parties be
divorced, that Mr. Hickman pay child support,See
footnote 1 1 alimonySee
footnote 2 2 and premiums for Ms. Hickman's medical insurance
coverage.See footnote 3 3
Mr. Hickman filed exceptions to the recommended order. The circuit court denied
the exceptions. By order entered July 22, 1998, the circuit court adopted the
family law master's recommended order.See
footnote 4 4
On August 6, 1998, Mr. Hickman
filed for a modification of the divorce decree based upon a reduction of income due to his retirement on July 30,
1998. During the modification hearings, Mr. Hickman presented evidence from
the treating physician of the parties' daughter. The daughter's physician opined
that the child was developing normally and no longer needed special care from
her mother. The family law master submitted a recommended order requiring the
sale of the parties' residence, a reduction in child support, the termination
of alimony and the termination of premium payments for Ms. Hickman's health
On August 18, 2000, the circuit
court entered an order adopting the family law master's recommendation, except
as to the sale of the parties' residence. The circuit court made its order retroactive
to the date Mr. Hickman filed for modification of the final divorce decree.
Consequently, judgment was rendered against Ms. Hickman for the overpayment
of child support, alimony and insurance premiums. The overpayment
totaled approximately $18,131.40. It is from this order that Ms. Hickman now
When Mr. Hickman filed for
divorce, he was employed and had a monthly net income of approximately $2,460.78.
The divorce decree required Mr. Hickman to pay approximately $1,677.14 a month
as alimony, child support and other expenses. At the time of the modification
hearing, Mr. Hickman was retired and had a monthly net income of $1,573.67.
Based upon Mr. Hickman's monthly retirement income, his obligations under the
divorce decree exceeded his monthly retirement income.
In reducing the child support,
the trial court followed the child support guidelines. Recalculation of the
child support resulting from Mr. Hickman's retirement income necessitated a
reduction in the monthly child support payment. The child support payment was
reduced to $277.33. On the issue of alimony, the trial court correctly determined
that the alimony was based upon the health of the parties' child. That is, alimony
payments were contingent upon the child's requirements for special care that
would not permit Ms. Hickman to obtain employment. During the modification hearing,
there was evidence from the child's physician that the child was developing
normally and no longer needed special care from Ms. Hickman. Thus, Ms. Hickman was not
precluded from working outside the home. As to the health insurance premiums,
evidence was introduced showing that Ms. Hickman had skills to obtain gainful
employment. In fact, the record demonstrated that Ms. Hickman was working part-time
out of her home transcribing medical records.See
footnote 6 6 In view of this evidence, we see no basis for disturbing
the trial court's decision to modify the divorce decree.
B. Applying Modification
Retroactively. Ms. Hickman contends that, should this Court uphold the
modification, this Court should reverse the decision to apply such modification
retroactively. By making the modification retroactive, the circuit court required
Ms. Hickman pay to Mr. Hickman the sum of approximately $18,131.40.
Ms. Hickman asserts that under Rule 29 of the West Virginia Rules of Practice and Procedure for Family Law, the circuit court had discretionary authority to make the modification retroactive. Rule 29 states, in part, that [u]nder appropriate circumstances, modification of an award of alimony or child support may be made retroactive to the date of service of the motion for modification upon opposing party.See footnote 7 7
(Emphasis added). Ms. Hickman contends that the imposition of a judgment of
$18,131.40 is a financial hardship to her. Unfortunately, the trial court's
order is silent as to any findings regarding Ms. Hickman's ability to pay such
Because this Court has an
inadequate record on the issue, we reverse and remand the matter to the circuit
court. On remand, an adequate record must be developed to establish Ms. Hickman's
ability to pay such a judgment and what, if any, financial hardship will result
to Ms. Hickman from said judgment.