Corcoran v. Corcoran

• Decision Date: 08 May 1998
• Docket Number: No. 24488.,24488.
• Citation: 202 W.Va. 76,501 S.E.2d 793
• Court: West Virginia Supreme Court
• Parties: Mary Ellen CORCORAN, now Pearson, Plaintiff below, Appellant, v. Rick Earl CORCORAN, Defendant below, Appellee.

501 S.E.2d 793

202 W.Va. 76

Mary Ellen CORCORAN, now Pearson, Plaintiff below, Appellant, v. Rick Earl CORCORAN, Defendant below, Appellee.

No. 24488.

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1998.

Decided May 8, 1998.

W. Dean DeLaMater, DeLaMater & Hagg, Weirton, for Appellant.

James T. Cooper, Lovett, Cooper & Glass, Charleston, for Appellee.

PER CURIAM:¹

The appellant Mary Pearson (formerly Corcoran), plaintiff below, seeks reversal of the April 1, 1997 order of the Tucker County Circuit Court that adopted the findings and recommendations of the Family Law Master regarding child support. Appellant argues that the circuit court erred: (1) in applying a child support reduction retroactively to the date of the filing of the petition for change in custody of one of the four children; (2) in averaging her former husband's income over a period of 3 years; and (3) in computing the amount of child support.² We affirm in part, reverse in part and remand.

I.

On July 28, 1986 the appellant and the appellee, Rick Corcoran, were divorced. The order incorporated a separation agreement which covered the division of property, child custody, and support.

The appellee had no set level of income due to sporadic overtime. On May 21, 1991 the family law master entered an order that allowed the appellant to petition for a yearly examination of the appellee's actual income to determine future and retroactive child support. The recommendations of the family law master were adopted by the circuit court.³

On April 29, 1996 the appellant filed her "annual petition" seeking a modification of child support for the previous year based on appellee's actual earnings. In her petition, the appellant also requested judgment on the difference between the amount she had been paid under the previous order and the amount due based on the adjusted order. The appellee responded to appellant's petition, and filed a petition of his own.

The appellee also, on August 6, 1996, filed a petition for custody of one of the parties' minor children. In October 1996, the circuit court by an "Ex Parte Order" transferred custody of the child to the appellee, citing in the court's order that the matter was not scheduled to be heard by the family law master until November 13, 1996. The child proceeded thereafter to live with the appellee.

On November 13, 1996 the family law master heard the parties on all three petitions.

In determining child support, the law master calculated the appellant's income by attributing a minimum wage income to the appellant, and then adding to that amount the money the appellant received from the federal government as an earned income credit. In examining the appellee's income, the law master considered appellee's gross income for the year, and subtracted from his gross income taxes paid, business expenses, and medical costs borne by him in the care of the children. The law master next averaged the current year's income with the previous two years' income. Based on the calculations, the law master determined that the appellant had been overpaid; therefore, the child support was retroactively reduced⁴ from January of 1995 through July of 1996. The law master also reduced the amount of child support beginning in August of 1996, the month in which the appellee petitioned for a change in custody of one of the children.

As a result of the November 13, 1996 hearing, the family law master further recommended that the prior arrangement for modifying the child support annually be suspended, and that future modifications were to be retroactive only to the time of service of a petition to modify upon the other party.

Both sides petitioned the circuit court for a review of the order. The circuit court adopted the family law master's recommended order. This appeal followed.

II.

The standard of review for this case is a three-pronged analysis set forth in Syllabus Point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

We begin our examination of this case by affirming our previous decisions holding that retroactive modifications of child support obligations are contrary to well-established law. We have stated previously that courts and family law masters may only modify child support awards prospectively, and that "absent 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." Syllabus Point 2, in part, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). In accord, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993)

; Woods v. Guerra, 187 W.Va. 487, 419 S.E.2d 900 (1992); Lauderback v. Wadsworth, 187 W.Va. 104, 416 S.E.2d 62 (1992). This, of course, is subject to the provisions of Rule 29 of the Rules of Practice and Procedure for Family Law [1994] which permits retroactive modification of child support to the date a petition seeking modification is served.

The first issued raised by the appellant is whether the circuit court erred in using the month that a petition was filed as the month to change the child support formula when the custody of one of the children was transferred from one parent to the other, as opposed to the month the custodial change actually occurred.

Rule 29 of the Rules of Practice and Procedure for Family Law [1994] states that "[u]nder appropriate circumstances, modification of an award of alimony or child support may be retroactive to the date of service of the motion for modification upon the opposing party." Because the rule is permissive we find that the circuit court did not abuse its discretion in applying the child support modification retroactive to the date appellee served his petition to change custody.⁵ We affirm on this issue.

The second issue is whether the circuit court erred in averaging the appellee's income over a period of 3 years. In Ball v. Wills, 190 W.Va. 517, 522, 438 S.E.2d 860, 865 (1993), we stated that "where a support obligor's income is not a fixed amount, but tends to fluctuate ... sole reliance on the support obligor's year-to-date income is insufficient for the purposes of determining child support, either initially or in the context of a modification."

In 1997 our domestic relations statutes were amended to include a change that expanded the section defining gross income for the purpose of determining child support. The statute states that gross income includes:

Income from seasonal employment or other sporadic sources: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from seasonal employment or other sporadic sources received during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such compensation, whichever period is shorter[.]

W.Va.Code, 48A-1A-19(b)(8) [1997].

Based on Ball v. Wills, supra,

and W. Va.Code, 48A-1A-19(b)(8), we cannot find that the circuit court abused its discretion in averaging the appellee's salary over a period of 3 years.

Accordingly, once the obligor's income is determined by averaging his income over a period of time, that amount is to be used prospectively only and not retrospectively. We affirm the averaging over a 3-year period of time, but reverse the retroactive application of the child support award.

Finally, the appellant argues that the circuit court...