Gardner v. Gardner, 19616

• Decision Date: 06 December 1990
• Docket Number: No. 19616,19616
• Citation: 400 S.E.2d 268,184 W.Va. 260
• Court: West Virginia Supreme Court
• Parties: Antonia Jeane GARDNER v. Wayne B. GARDNER.

Page 268

400 S.E.2d 268

184 W.Va. 260

Antonia Jeane GARDNER v. Wayne B. GARDNER.

No. 19616.

Supreme Court of Appeals of

West Virginia.

Dec. 6, 1990.

Syllabus by the Court

1. For cases arising before July 1, 1990, a party seeking a modification of a child support order must show that the welfare of the child or children requires the modification and that a substantial change of circumstances occurred after the entry of the existing order that was not adequately dealt with in that order. For cases arising after July 1, 1990, a party seeking a modification of a child support order must either meet the criteria outlined above or show that the support award is not within 15% of the child support guidelines adopted pursuant to W.Va.Code, 48A-2-8 [1989].

2. In addition to the factors or circumstances listed for consideration in Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785, 787 (1987), the family law master or circuit court may determine that a substantial change in circumstances has occurred because of a change in the cost of living caused by inflation or increases in the children's needs because they are older, or unexpected changes affecting basic needs such as housing or transportation.

3. Once a family law master or circuit court finds that a party has shown a change of circumstances justifying modification of child support, the amount of child support shall be in accordance with the child support guidelines established pursuant to W.Va.Code, 48A-2-8(a) [1989], unless the family law master or the court shall determine, in a written finding or a specific finding on the record, that the application of the guidelines would be either unjust, inappropriate, waived by the parties pursuant to the safeguards outlined in W.Va.Code, 48A-2-8(a)(1) [1989], or contrary to the best interests of the children or the parties.

Roger D. Curry, McLaughlin and Curry, Fairmont, for Antonia Jeane Gardner.

Robert C. Gorey, Jr., Clagett & Gorey, Fairmont, for Wayne B. Gardner.

WORKMAN, Justice:

Antonia Jeane Gardner appeals from an order of the Circuit Court of Marion County modifying an earlier divorce order by requiring Wayne B. Gardner, the appellant's former husband, to pay one-half of the non-insured health-related expenses for their children, but failing to require Mr. Gardner to pay the amount required by the child support guidelines established pursuant to W.Va.Code, 48A-2-8 [1989]. ¹ On appeal, Mrs. Gardner alleges that the circuit court should have required Mr. Gardner to pay the amount required by the child support guidelines. We agree and, therefore, reverse and remand this case.

On January 18, 1984, Mr. and Mrs. Gardner obtained a divorce because of irreconcilable differences. Mrs. Gardner was awarded custody of the parties' children, Melanie, then age nine and Scarlett, then age five. Mr. Gardner was directed to pay $200 per month for the support of the children.

On September 15, 1987, Mrs. Gardner sought a modification of the support provisions for two reasons: (1) her recently built house cost substantially more than anticipated and required payments of about $700 per month rather than the $370 originally anticipated; and (2) the children required additional support because they were older.

Mrs. Gardner, with the knowledge and approval of Mr. Gardner, decided to build a new house. Unfortunately, the actual building costs greatly exceeded the anticipated costs. Neither Mr. nor Mrs. Gardner realized the extent of the additional costs until it was too late. As a result of the unanticipated construction costs, Mrs. Gardner's house payment increased from approximately $370 per month to $700 per month.

In addition, the needs of the children had increased during the three and one-half years since the divorce decree. In particular, Melanie required orthodontic treatment, the cost of which was in excess of $2,400. Mr. Gardner made some voluntary payments, totalling about $330, but in May 1987 he stopped contributing.

At the time of the modification petition, Mr. and Mrs. Gardner submitted verified financial statements. Mr. Gardner, who remarried, was employed by the U.S. Postal Service and his gross income was approximately $2,000 per month. Mrs. Gardner was employed by the City of Fairmont and her gross income was $1,200 per month. Both parties had considerable expenses.

On November 15, 1987, the family law master recommended that with the limited exception of the orthodontic treatment, Mrs. Gardner's change of circumstances were anticipated by the parties at the time of the divorce. The family law master limited his recommendations to requiring the parties to share equally all costs for the children's non-insured health-related expenses. The family law master failed to apply the guidelines for child support established pursuant to W.Va.Code, 48A-2-8 [1989], which indicate a support payment for the children of about $350 to $400 per month. ² By order entered June 12, 1989, the circuit court adopted the recommendations of the family law master. Mrs. Gardner appeals to this Court alleging that the circuit court should have used the guidelines to increase her monthly child support in addition to ordering equal contribution for the children's non-insured health-related expenses.

I

The issue before us is whether a modification of the child support order to comply with the recommended guidelines is warranted. The authority to award or modify child support in a divorce proceeding is found in W.Va.Code, 48-2-15 [1990], which states in pertinent part:

(b) Upon ordering the annulment of a marriage or a divorce or granting of [a] decree of separate maintenance, the court may further order all or any part of the following relief: ...

(e) At any time after the entry of an order pursuant to the provisions of this section, ... the court may also from time to time afterward, on the verified petition of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter such order concerning the custody and maintenance of the children ... ³

Until the 1990 amendment, W.Va.Code, 48-2-15(e)'s only guidance on when a court should modify a previous support order was that "the court may ... make a new order concerning the same, as the circumstances of the parents or other proper person or persons and the benefit of the children may require." ⁴ In keeping with this authority, in Syllabus Point 1 of Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785 (1987), we outlined the following criteria for modification of a child support order:

A child support order may be modified only upon a substantial change of circumstances which was uncontemplated by either of the parties at the time the order was entered and upon a showing that the benefit of the child requires such modification. W.Va.Code, 48-2-15(e) [1986].

Our holding in Lambert was based on our previous cases and our acknowledgement that W.Va.Code, 48-2-15(e) [1986] provided "one condition precedent to the modification of child support orders ... that [is when] the needs of the child or children require such modification." Id., 178 W.Va. at 228, 358 S.E.2d at 789. Thus the pole star for determining when a modification of a child support order is necessary is the welfare of the child. ⁵

In Lambert, we outlined several factors or circumstances that a family law master or circuit court may consider to determine when a change in circumstances justifying modification has occurred. ⁶ These factors may include ... a change in the financial resources or ability to pay on part of the parent obligated to pay support, needs of the child or children for whom support is paid, a good or bad faith motive of the obligated parent in sustaining a reduction of income, and the duration of the change, namely, whether the change is temporary or permanent. (Citations omitted).

Id., 178 W.Va. at 226, 358 S.E.2d at 787.

Lambert's requirement that a party show a change justifying modification is consistent with our previous holdings. In Lambert, supra, the father sought to terminate his child support to the mother because one of their two children was living with him. Because at the time of the original support agreement, the father knew that his son would be living with him, we required him to continue to pay child support because the change in the son's residence was considered when the original agreement was entered a mere 8 months earlier. In Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987), we noted that the parties knew that after the divorce the husband would have a separate residence and reasonably should have known that the wife would return to part-time work. Because at the time of the original order, the parties knew of these circumstances, we refused to consider them to be changes requiring modification. Goff, supra, 177 W.Va. at 747, 356 S.E.2d at 501.

In Nichols v. Nichols, 160 W.Va. 514, 517, 236 S.E.2d 36, 37-38 (1977), we refused to consider an expected salary increase as a change requiring modification because the parties, at the time of the divorce decree, "were fully aware of the fact that Duane Nichols would in all probability receive a 7-10% salary increase annually." In Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989), the need to change housing because of the "disrepair" of the marital home, was considered "a material, uncontemplated change of circumstances justifying a modification of child support." Id. 178 W.Va. at 227, 382 S.E.2d at 591. ⁷ In Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898, 903 (1974), we recognized that inflation or a change in the cost of living can be a substantial change requiring modification. ⁸

In Lambert, supra, we also attempted to determine if the change was "contemplated at the time of the original agreement" and, therefore, already a part of the support order. Lambert, supra, at ----, 358 S.E.2d at 788. The factual determination of what the parties knew or...