Loren B. Howley, Esq. Charles Phalen, Jr., Esq.
Grantsville, West Virginia Hunt & Serreno
Attorney for Appellee Charleston, West Virginia
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
Generally, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. The sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law. Syllabus Point 1, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).
In this case we affirm in part and reverse in part a decision by the Circuit Court of Clay County. The circuit court ordered a continuation of spousal support payments, and we affirm this ruling. The circuit court additionally ordered the establishment and funding of a trust; we reverse this portion of the court's ruling. We remand other issues for the lower court's consideration.
This agreement was not reflected in the parties' original divorce decree, but it
is reflected in an agreed order, entered by the circuit court on October 4, 1991, requiring the
appellant to pay the appellee $2,000.00 a month in spousal support for the remainder of [the
appellee's] life or until the monies in a trust fund set aside for her benefit has been exhausted,
and shall continue even in the event of the remarriage of [the appellee]. The petition
accompanying this order recites that the appellant had made such a promise in connection
with the parties' original divorce.
(See footnote 1)
The appellant paid the appellee $2,000.00 a month thereafter for approximately eight years. He also established a trust fund that was under his sole control. The trust fund was entirely revocable by the appellant; and the appellant appears to have removed a substantial amount of money from the fund in transactions unrelated to paying support to the appellee - in other words, the monthly payments that the appellant made to the appellee did not necessarily come from the trust fund.
The appellant stopped paying the appellee $2,000.00 monthly in spousal support in 1999. The appellee then filed a contempt petition, and also therewith sought an increase of the monthly support amount to $2,750.00 per month. On May 3, 2000, the appellant paid the appellee $11,000.00 to resolve the contempt petition. He never made another support payment. Meanwhile, in December of 1999, the appellant filed a petition to modify the 1991 agreement; this petition was heard before a family law master, whose ruling was appealed to the circuit court.
The appellant contended principally in his petition that the trust fund was exhausted, and that therefore he was relieved of any duty of spousal support. He also contended that the 1991 order was void ab initio, because the circuit court had no jurisdiction to modify the 1989 order by adding a provision regarding spousal support. (See footnote 2)
The appellee responded to the petition by opposing its requested relief, and by reiterating a request for increased monthly support payments. The appellee contended that the appellant had deliberately taken money out of the trust fund account, which had approximately $233,000.00 in it prior to 1999, in order to make the exhaustion claim. The appellee also argued to the lower court that the trust fund established by the appellant was a revocable trust fund for the appellant's benefit, whereas the October 1991 order required that the appellant establish a trust fund for the appellee's benefit. The appellee argued that the appellant's failure to establish such a fund was a breach of his fiduciary duty, and the appellee asked that the appellant be required to fund a proper trust fund for her benefit.
The family law master
(See footnote 3)
who heard the matter agreed with the appellant's
exhaustion argument, and ordered that the appellant be excused from further spousal support
payments. Upon review by the circuit court, the court disagreed with the family law master's
ruling. The circuit court ruled that the appellant had agreed to pay spousal support to the
appellee for her lifetime, and that the trust fund had been improperly exhausted. The
circuit court required the appellant to place $233,000.00 in a trust fund for the appellee's
benefit, to be paid out at $2,000.00 a month. The circuit court denied the appellee's request
for attorney fees and costs, and did not address the appellee's request for an increase in
support, or the issues of support arrearages and interest.
On the issue of the lower court's jurisdiction in 1991 to enter an order regarding spousal support, the appellant cites us to Savage v. Savage, 157 W.Va. 537, 203 S.E.2d 151 (1974). In Savage, which was overruled by Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996), we ruled that a circuit court did not have jurisdiction to re-open a divorce proceeding on the motion of one party to order spousal support (called alimony in that opinion), if such support had not been addressed in the original divorce decree.
When we overruled Savage in Banker, we did so prospectively only _ in order not to disturb the settled expectations of those who had relied upon the finality of divorce decrees issued prior to our decision in Banker. However, nothing in Savage or Banker operated to prohibit a party from voluntarily assuming the legally enforceable obligation of paying spousal support, by agreeing to modify a prior divorce decree that was silent as to spousal support.
Addressing this issue, the circuit court observed in the instant case that while the parties may have engaged in some procedurally unconventional conduct in this case, they clearly made and acted upon certain agreements, and they were estopped from denying those agreements' legal effectiveness. We agree with the circuit court, and conclude that the 1991 court order modifying the divorce decree and providing for lifetime spousal support for the appellee is not subject to a jurisdictional challenge under Savage, based upon the silence of the 1989 decree on the question of spousal support.
We also agree with the circuit court's conclusion that the appellant has a continuing duty to pay spousal support under the 1991 order, despite the apparent recent exhaustion of the trust fund account that the appellant established. However, we reverse the circuit court's order insofar as it requires the appellant to establish a new trust fund for the appellee's benefit.
Our reasoning on this issue is as follows: What can be most certainly deduced and gained from the 1991 order is that the parties had reached a definite, certain, and bargained-for agreement that the appellant would pay spousal support _ then-established in the amount of $2,000.00 per month _ to the appellee, whether or not she remarried, for the remainder of her life.
The reference to a trust in the agreed order was made in connection with the assumption of that duty of support by the appellant. But because the order uses only vague and cursory language in referencing the trust, the nature, terms, amount, and all other aspects of the trust are entirely uncertain and speculative.
The inadequacy of the language in the order regarding a trust can be seen by considering a hypothetical two-part scenario: first, the appellant sets up a trust fund in the amount of $4,000.00; pays $2,000 monthly spousal support from the fund for two months; then second, the appellant claims to be excused from any further support obligation because the trust is exhausted. Such a claim would be ludicrous, in light of the appellant's promise of lifetime spousal support; but because the order's language relating to a trust is cursory and vague, the argument could be colorably made under that language.
Additionally, one cannot go outside the vague and cursory language of the order to find facts or conduct that would make the terms of the trust more definite and concrete. The amount of money in the trust varied substantially over time. Substantial sums of money from the trust were apparently used over the years for matters unrelated to spousal support; and support payments were apparently made from funds other than those in the trust. The appellee apparently never knew anything specifically about a trust _ she simply received her monthly support payments.
Under these circumstances, we think that the circuit court erred in requiring the creation of a trust, when neither the parties' agreement nor their conduct gives meaningful guidance as to what the specific terms of such a trust should be. We conclude that the better and less inherently speculative approach is to view the trust language in the 1991 agreed order as surplusage, that was tangential to the core purpose of the agreement _ the agreed- upon payment of lifetime spousal support by the appellant for the appellee _ and that was effectively made a nullity by the conduct of the parties. We therefore reverse that portion of the circuit court's order that requires the appellant to set up a trust for the appellee's benefit.
The appellee argues on cross-appeal that the circuit court erred in failing to consider her request to modify and increase the appellant's spousal support obligation, when the evidence showed (the appellee contends) that the appellant could afford, and that the appellee needs, increased support. We believe that the circuit court understandably declined to address this issue, in light of the other complex predicate issues before the court. The appellee may re-present this issue to the lower court upon remand.
The appellee also argues that the circuit court erred in not requiring the appellant to pay spousal support arrears from May 2000 forward, with interest. W.Va. Code, 48-1-244(1)  states that interest accrues on unpaid spousal support at 10% per year. Insofar as the circuit court's ruling does not clearly award arrears or interest, we conclude that it should be modified to do so.
The appellee also contends that she should not have to pay her own costs, including attorney fees, when the evidence showed that: (1) the appellee's costs were incurred as a direct result of the appellant's inequitable conduct; (2) the appellant can afford to pay; and (3) the appellee cannot afford to pay.
On this issue, the appellee further argues that these proceedings began as a result of the appellant's deliberately draining the trust fund and refusing to pay spousal support; that the appellant failed to make full and accurate financial disclosures and gave misleading and evasive testimony (e.g., the appellee says that the appellant testified in May 2000 that he earned $102,350.00 in 1999, but his tax returns, produced in August 2000, showed gross income of $305,748.00; he testified that his business earned $125,000.00, but his business tax return showed $287,532.00 was earned); and that the appellant unreasonably attempted to deny the legal validity of an agreed order that the parties had complied with and relied upon for eight years.
We are not prepared, on the record before us, to directly reverse the circuit court and require the appellant to pay the appellee's fees and costs. However, our resolution of the arguments made by the parties in the instant case weighs in favor of an award of fees and costs to the appellee, and we conclude that the circuit court should reconsider the issue in light of all of the facts and factors before the court.