Harry A. Smith I
Elkins, West Virginia
Counsel for Appellee
Rudolph L. DiTrapano
Lonnie C. Simmons
DiTrapano & Jackson
Charleston, West Virginia
Counsel for Appellant
This Opinion was delivered PER CURIAM.
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." Syllabus, Nichols v. Nichols, 160 W. Va. 514,
236 S.E.2d 36 (1977).' Syllabus, Luff v. Luff,  W. Va. ,
329 S.E.2d 100 (1985)." Syl. Pt. 8, Wyant v. Wyant, 184 W. Va.
434, 400 S.E.2d 869 (1990).
2. "The authority of the circuit courts to modify alimony or
child support awards is prospective only and, absent a showing of
fraud or other judicially cognizable circumstance in procuring the
original award, a circuit court is without authority to modify or
cancel accrued alimony or child support installments." Syl. Pt. 2,
Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987).
This is an appeal by Rosemary Guerra Salcedo from a final
order of the Circuit Court of Randolph County which "amended" a
January 18, 1978, divorce order regarding alimony to be paid to the
appellant by her former husband, appellee Carl Gary Woods. The
appellant contends that the lower court erred by so "amending" and
by inappropriately calculating the credits to which each party is
entitled for the sale of marital property. We agree with the
appellant's contentions regarding the amendment of the alimony
order and reverse the decision of the Circuit Court of Randolph
County to the extent that it "amended" the January 18, 1978,
divorce order. We find no clear error in the calculation of
credits and therefore affirm the lower court's decision in that
Subsequent to their March 21, 1972, marriage, the appellant
and the appellee purchased two tracts of real estate located in
Elkins, West Virginia, including three homes situated upon these
lots. The purchase agreement provided for a $2,000 down payment
with $48,000 to be paid over a period of twenty years at six and
one-half percent interest. The parties separated in October 1976,
and the appellant assumed the payments from November 1976 to the
On January 18, 1978, a divorce was granted. The order provided that Mr. Woods was responsible for several outstanding debts and provided the following with regard to alimony requirements:
It is further ORDERED that the said Carl
Gary Woods shall pay to Rosemary Woods under
the name of Rosemary Guerra, at her home
address which is 201 Eleventh Street, Elkins,
West Virginia, the sum of Five Hundred Dollars
($500.00) per month as alimony until further
Order of the Court, the first payment to be
made on the 1st day of February, 1978.
On May 1, 1978, a hearing was held on the appellant's motion
for contempt for Mr. Woods' failure to pay alimony and various
other debts referenced in the January 18, 1978, order. During this
hearing, the trial court determined that "the five hundred dollars
[$500] a month would continue for a year from the date of entry of
my Order of January, 1978, at which time we'll hold one more
hearing in this matter, and we'll determine the question of
alimony." The trial court further explained that the $500 monthly
"'will continue until January, 1979, at which time I'll entertain
a motion for reduction or elimination of the alimony.'" No written
order was entered reflecting the trial court's ruling. Moreover,
no subsequent order regarding the reduction, elimination, or any
modification of alimony was entered, and Mr. Woods never filed any
motion to reduce or eliminate alimony.
Mr. Woods provided alimony for eleven months, paying a total of $5,500. On February 5, 1981, Mr. Woods filed a complaint
seeking to have the marital property sold, rather than partitioned
in kind. The appellant, who had resided in one of the houses,
answered the complaint and filed a counterclaim seeking alimony,
attorney fees, and other obligations that Mr. Woods had failed to
pay, as required by the January 18, 1978, order.
On May 24, 1982, Mr. Woods moved for an order appointing
special commissioners to sell the real estate, and a sale was
subsequently scheduled for August 21, 1982. The appellant was the
highest bidder at $90,000. The appellant then remarried in March
1984 and refused to pay the $90,000, apparently due to Mr. Woods'
failure to pay the alimony due to the appellant up to the date of
her remarriage. On October 13, 1988, the appellant filed a motion
for decretal judgment for past due alimony, attorney fees, and
expenses. In response, Mr. Woods moved to have the January 18,
1978, order amended and corrected, pursuant to Rule 60(a) of the
West Virginia Rules of Civil Procedure, contending that the trial
court intended the alimony ordered on January 18, 1978, to continue
for only one year.
A hearing on the pending motions was held on January 22, 1990, and the court entered a May 24, 1990, order holding that "the order of January 18, 1978, incorrectly reflects the Court's ruling as to alimony, the Court being satisfied that its ruling was, in fact, that Defendant be awarded $500.00 per month as alimony for a period
of one year, commencing February 1, 1978."See footnote 1 The lower court
further held that the appellant would be entitled to any credits
from November 1976 through August 21, 1982. Mr. Woods would be
entitled to a credit from the sale of an amount equal to the rental
value of the premises occupied by the appellant from January 18,
1978, through August 21, 1982. Counsel for the parties were
ordered to calculate the credit claimed.
By order of June 17, 1991, the lower court held that Mr. Woods
was entitled to a credit against the sale price of $13,750, and the
appellant was entitled to a credit of $7,485.43. The appellant now
appeals both the issue of past due alimony and the calculation of
The appellant contends that the lower court erred in employing Rule 60(a) of the West Virginia Rules of Civil Procedure to
eliminate six years of accumulated alimony and in denying her
motion for decretal judgment on the accrued alimony. The appellant
further contends that because the original January 18, 1978, order
imposed a $500 per month requirement of alimony for an indefinite
period, she is entitled to alimony for the seventy-four months
between February 1978 and March 1984, the month of her remarriage.See footnote 2
With a reduction of $5,500 already paid by Mr. Woods during that
interval, the past due alimony claimed by the appellant totals
Rule 60(a) of the West Virginia Rules of Civil Procedure
provides, in relevant part, as follows:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein
arising from oversight or omission may be
corrected by the court at any time of its own
initiative or on the motion of any party and
after such notice, if any, as the court
In addressing the application of Rule 60(a), the following is
explained in 11 Charles A. Wright and Arthur R. Miller, Federal
Practice and Procedure § 2854 at 149 (1973):
Subdivision (a) deals solely with the correction of errors that properly may be described as clerical or as arising from oversight or omission. Errors of a more
substantial nature are to be corrected by a
motion under Rules 59(e) or 60(b). Thus a
motion under Rule 60(a) can only be used to
make the judgment or record speak the truth
and cannot be used to make it say something
other than what originally was pronounced.
We addressed the issue of correction under West Virginia Rule
of Civil Procedure 60(a) in Abbot v. Bonsall, 164 W. Va. 17, 263
S.E.2d 78 (1979), and determined that the rule could be employed to
correct a clearly mathematical error and to adjust an order to
reflect the actual agreement regarding child support and alimony.
In Abbot, a misreading of a prior agreement between counsel had
caused the miscalculation, and we considered such miscalculation a
clerical error. 263 S.E.2d at 78-79. We specifically stated that
we deemed the error "purely clerical" in nature. Id. at 78.
The lower court in the present case clearly altered the
substance of the January 18, 1978, order by amending it to provide
for only one year of alimony. The alleged error could have been
brought to the attention of the trial court at the time of the
original order. Yet the order was signed by counsel for Mr. Woods.
No motion for reduction or elimination of alimony was ever filed by
Mr. Woods. Unlike the situation in Abbot, the problem in the
present case was not "purely clerical." The substance of the
original order was changed by the "amendment."
Furthermore, Mr. Woods' responsibility to pay the alimony in question had accrued prior to the "amendment" by the lower court.
We have 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." Syllabus, Nichols v. Nichols, 160 W.
Va. 514, 236 S.E.2d 36 (1977).' Syllabus, Luff v. Luff,  W.
Va. , 324 S.E.2d 100 (1985)." Syl. Pt. 8. Wyant v. Wyant, 184
W. Va. 434, 400 S.E.2d 869 (1990). Yet we have also consistently
maintained that "[t]he authority of the circuit courts to modify
alimony or child support awards is prospective only and, absent a
showing of fraud or other judicially cognizable circumstance in
procuring the original award, a circuit court is without authority
to modify or cancel accrued alimony or child support installments."
Syl. Pt. 2, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987).
While Mr. Woods attempts to draw the technical distinction between
the retroactive modification of an alimony award and simple
correction of clerical errors to be accomplished through West
Virginia Rule of Civil Procedure 60(a), we believe that the lower
court's action in this case amounts to retroactive modification
without any justification and is thus not permitted.
The lower court has attempted to inappropriately use West Virginia Rule of Civil Procedure 60(a) to "correct" an order of January 18, 1978, and has further attempted to effect a retroactive modification in alimony. We believe the lower court clearly abused its discretion by employing West Virginia Rule of Civil Procedure
60(a) to limit alimony to one year. We consequently reverse the
decision of the lower court and remand this matter for a
reinstatement of an alimony judgment for $500 per month from
February 1978 through March 1984, with interest added.
We have also examined the appellant's contentions with regard
to error in the calculation of the credits due to the appellant in
connection with the sale of marital property. We find no clear
error by the lower court in that calculation. We do, however,
reverse the decision of the Circuit Court of Randolph County as it
relates to the obligation of alimony and remand this matter for
reinstatement of an alimony judgment for $500 per month from
February 1978 through March 1984, without interest added.
Footnote: 1Specifically, the lower court ordered:
That, pursuant to Rule 60(a) West Virginia Rules of Civil Procedure, said Order dated January 18, 1978, is amended and corrected to read, in Paragraph '9' thereof, as follows: 'It is further ORDERED that the said Carl Gary Woods pay to Rosemary Woods under the name of Rosemary Guerra, at her home address which is 201 11th Street, Elkins, West Virginia, the sum of Five Hundred Dollars ($500) per month as alimony for [a] period of twelve (12) months, the first payment to be made on the 1st day of February, 1978.'
Footnote: 2The parties submitted separate proposed orders which contained language regarding the court's determination that alimony should be awarded for only one year. The final order entered, however, is the one on which we must rely in our analysis of the procedural history of this case. It did not contain the limit of alimony to one year.