Evans v. Evans

Decision Date14 November 2006
Docket NumberNo. 33045.,33045.
Citation639 S.E.2d 828
CourtWest Virginia Supreme Court
PartiesJames Robert EVANS, Jr., Petitioner Below, Appellant v. Sharon Rose EVANS, Respondent Below, Appellee.

Syllabus by the Court

1. "In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "In the construction of a legislative enactment, the intention of the legislature is to be determined, not from any single part, provision, section, sentence, phrase or word, but rather from a general consideration of the act or statute in its entirety." Syllabus Point 1, Parkins v. Londeree, 146 W.Va. 1051, 124 S.E.2d 471 (1962).

3. "It is well established that the word `shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

4. Except in cases involving an obligation for rehabilitative spousal support or spousal support in gross, W.Va.Code, 48-6-203 [2001] mandates that if neither a separation agreement nor a court order imposing a spousal support obligation upon a payor makes any provision regarding the effect of the remarriage of the payee upon the obligation, then a court, upon motion of a party, must terminate the obligation on the remarriage of the payee.

5. To give full meaning to W.Va.Code, 48-6-202 [2001] and W.Va.Code, 48-6-203 [2001], when a family court is asked to ratify a separation agreement that includes provisions pertaining to spousal support, or whenever spousal support is awarded in the absence of such an agreement, the family court is required to state whether the spousal support obligation continues or ceases upon the death of the payor or payee, and whether the spousal support obligation continues or ceases upon the remarriage of the payee.

M. Timothy Koontz, Esq., Williamson, for Appellant.

Rose Esposito Rupe, Esq., Esposito & Esposito, Logan, for Appellee.

STARCHER, J.:

In this appeal from the Circuit Court of Logan County, we are asked to review a circuit court's decision that reversed on appeal an order by the Family Court of Logan County. The family court order terminated a "permanent" spousal support obligation imposed in a prior family court divorce order, because the recipient of the spousal support had remarried. The circuit court's decision re-imposed the spousal support obligation.

After careful review of the record and the arguments of the parties, we reverse the circuit court's decision.

I. Facts & Background

Appellant James Robert Evans, Jr., and appellee Sharon Rose Evans separated after twenty-one years of marriage in October 2001, and the appellant filed for divorce. The parties — of whom, only the appellee was represented by counsel — entered into an oral separation agreement to resolve issues of spousal support and the distribution of the marital estate. As part of the agreement, the appellant agreed to pay the appellee $1,800.00 per month in spousal support until the death of either party.

No mention was apparently made in the parties' negotiations concerning the effect of the remarriage of the appellee upon the appellant's spousal support obligation. Furthermore, no mention was made of the potential effect of the appellee's remarriage at the final divorce hearing before the family court judge, or in the family court's final divorce order.

The final divorce hearing was held on November 21, 2002. The parties were questioned by the appellee's attorney about the terms of their oral agreement on the record. The questioning establishes the parties' understanding that the appellant's support obligation would terminate upon the death of either party. For instance, the following colloquy occurred between the appellee's attorney and the appellant:

Q. Is it also true that beginning with the month of January 1st of 2003 to let us get the paperwork done, beginning with January 1, 2003 you will pay her the sum of eighteen hundred dollars ($1800.00) alimony, permanent alimony to her. Is that correct?

A. Yes.

Q. And that eighteen hundred dollars ($1800.00) will be paid to her every month beginning with January of 2003 and continuing until her death or your death. Is that correct? In other words, if you should die you will be no longer obligated to pay it and if she would die of course she doesn't get it. Is that correct?

A. Yes.

However, again, there was no mention of the effect of the appellee's remarriage upon that obligation.

On January 7, 2003, the family court entered a final order granting the parties a divorce. The family court found the parties' agreement concerning spousal support to be fair, just and equitable, and ratified the agreement. The family court's order went on to state:

The [appellant], James Robert Evans, Jr., shall pay the sum of One Thousand Eight Hundred Dollars ($1,800.00) per month to the [appellee], Sharon Rose Evans, for her support and maintenance commencing January 1, 2003, and continuing each succeeding month thereafter until the death of either party.

The order is silent about the effect the appellee's remarriage might have upon the appellant's spousal support obligation.

Thereafter, on July 14, 2004, the appellant filed a petition for modification with the family court seeking to terminate his spousal support obligation. As the basis for the petition, the appellant stated that the appellee "has remarried and no longer needs the income."

In a brief order dated January 26, 2005, the family court granted the appellant's petition, and terminated the appellant's spousal support obligation effective January 1, 2005. The appellee then appealed the case to the circuit court.

The circuit court, examining the statute pertaining to family court treatment of spousal support issues (a statute which we discuss in greater detail below), found that the family court had a statutory duty to assess the parties' oral agreement in January 2003 and definitively ascertain whether or not the appellant's spousal support obligation was to continue beyond the remarriage of the appellee, or to cease. See W.Va. Code, 48-6-203 [2001]. The circuit court concluded that the family court had properly assessed the parties' agreement in its January 2003 order, and concluded that the family court had found that the appellant's spousal support obligation terminated only upon one condition: the death of either party. The circuit court based its conclusion upon the silence of the family court: by making no mention of the effect of the appellee's remarriage, the circuit court found that the family court had essentially ordered that the appellant's spousal support obligation was to continue beyond the remarriage of the appellee.

In an order dated July 12, 2005, the circuit court reversed the family court's order, and reinstated the appellant's spousal support obligation. The appellant now appeals the circuit court's order.

II. Standard of Review

Our standard of review was set forth in the Syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004):

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

See also, Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.").

III. Discussion

The parties' arguments revolve around different readings of the same statute pertaining to spousal support. The appellee's argument relies upon the first two sentences of the statute, while the appellant's argument relies solely upon the third sentence.

The statute, W.Va.Code, 48-6-203 [2001] states, in part:

When a separation agreement is the basis for an award of spousal support, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for spousal support to continue beyond the remarriage of the payee or to cease in such event. When spousal support is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of spousal support is to continue beyond the remarriage of the payee or is to cease, or when the parties have not entered into a separation agreement and spousal support is awarded, the court shall have the discretion to determine, as a part of its order, whether such payments of spousal support are to be continued beyond the remarriage of the payee. In the event neither an agreement nor an order makes provision for the remarriage of the payee, spousal support other than rehabilitative spousal support or spousal support in gross shall cease on the remarriage of the payee.1

The appellant argues that the family court correctly terminated the appellant's spousal support obligation upon the appellee's remarriage, and argues that the circuit court erred in finding that the parties had agreed otherwise. The appellant relies upon the third sentence of W.Va. Code, 48-6-203, which provides if neither a separation agreement nor a family court divorce order makes any provision concerning the effect of one spouse's remarriage upon the other spouse's obligation to pay spousal support, then a court must...

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