Goff v. Goff

Decision Date15 April 1987
Docket NumberNo. 17141,17141
Citation177 W.Va. 742,356 S.E.2d 496
CourtWest Virginia Supreme Court
PartiesRoger W. GOFF v. Cheryl A. GOFF.

Syllabus by the Court

1. Matured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as "decretal judgments" against the party charged with the payments.

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.

3. The party petitioning for a modification of the support provisions of a divorce decree bears the burden of showing a substantial change of circumstances.

4. In order to satisfy the requirement of a substantial change in circumstances necessary to grant a modification in support obligations, the change must be one which would not reasonably have been expected at the time of the divorce decree.

5. Mature alimony and child support installments are judgments for money which accrue statutory interest from the date the payments are due.

Charles A. Riffee, II, Thomas & Riffee, St. Albans, for appellant.

James A. Matish, Clarksburg, for appellee.

McGRAW, Chief Justice:

This is an appeal from an order by the Circuit Court of Harrison County entered on September 30, 1985 modifying the child support and alimony obligations of the appellee, Roger Goff. The appellant, Cheryl Goff, makes four assignments of error. Since we agree that the circuit court erred in allowing the appellee various credits against his accrued support arrearages, in terminating the monthly alimony payments, and in not allowing interest on the arrearages, we reverse the decision of the circuit court and remand the case for further proceedings consistent with this opinion.

The appellee filed a complaint for divorce in October 1980. The parties have since been before the circuit court on numerous occasions. The appellant was granted temporary relief on December 15, 1980, including custody of the couple's two children, possession of the marital home, and maintenance and support payments in the amount of $850 monthly. However, the court entered a modified agreed order on January 29, 1981, granting the appellee custody of the children and use and possession of the marital home. The appellant was granted support in the amount of $400 a month. The parties entered into a property settlement agreement in April 1981 in which the parties agreed to sell the marital home and equally divide the proceeds. This property agreement was incorporated into the divorce decree entered on December 8, 1981. That decree restated the terms of the previous order and also required the appellee to maintain in effect medical or hospital insurance for the appellant. On April 20, 1982 the parties once again sought and obtained an order from the circuit court modifying the child custody and support provisions of the divorce decree. The appellant was granted custody of the children and the appellee was ordered to pay $100 each per month for their support. The parties' last appearance in circuit court came in August 1985, when they each sought relief from that court.

It is appropriate to summarize the evidence before the circuit court. From the time of the December 1980 order granting the appellant temporary relief through December 1981, when the divorce decree was entered, the appellee made all of the required maintenance and support payments. Soon afterwards, however, he decided to quit his job, which required extensive travel, and take another job in the Charleston area. He then, for all intents and purposes, ceased making either alimony or child support payments.

There was detailed testimony given regarding the appellee's gross and net income for the past several years, which need not be recounted here. It is sufficient to say that the evidence is consistent with the assertion in the appellee's petition for modification that he earned approximately $1700 per month net at the time of the divorce and was earning approximately $1500 net monthly at the time of the modification hearing. From the appellant's pay stubs submitted into evidence, it is apparent that her monthly net income from her part-time job as a beautician is approximately $240. The appellant has from time to time qualified for and received welfare payments and food stamps.

When the appellee left Harrison County to begin his new job, the marital home was rented to a third party for a period of one year. When the house became vacant, the appellee agreed that the appellant and the children should move back in. The appellant paid no rent and the appellee continued to make the mortgage payments, as required by the property agreement. Also as provided for in that agreement, the house was placed on the market and remained so during this entire period, although it did not sell.

It is apparently undisputed that, as of the date of the hearing, the appellee should have paid $22,900 in alimony and child support installments, but had actually paid only $5,155.98. 1 The circuit court allowed in testimony from the appellee in which he contended that he and the appellant had reached an oral agreement when he changed jobs that he would not make the monthly alimony payments, but would settle up his obligation to her from his share of the equity when the house was sold. The appellee did not advance any explanation for not staying current on the child support obligation other than his reduced income and increased expenses. On February 20, 1985, the appellant filed a suggestee execution pursuant to West Virginia Code §§ 38-5A-1 to -13 (1985 Replacement Vol.) and began receiving payments from the appellee's employer through a wage attachment (see note 1, supra ). On April 12, 1985, the appellee filed his petition for modification which is involved in this appeal.

I.

The circuit court granted the appellee $10,450 in credits toward his accrued child support and alimony obligations other than the $5,155.98 actually paid. While we question the reasoning behind the trial court's determination of these credits, we must reverse on more basic grounds.

"[M]atured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as 'decretal judgments' against the party charged with the payments." Sauls v. Howell, --- W.Va. ---, ---, 309 S.E.2d 26, 28 (1983); accord Hopkins v. Yarbrough, 168 W.Va. 480, 284 S.E.2d 907 (1981); Syl. Pt. 1, Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947); Syl. Pt. 1, Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889 (1940); Harman v. Harman, 120 W.Va. 199, 196 S.E. 361 (1938); see also W.Va.Code § 48-2-16(a) (1986 Replacement Vol.). The general rule is that, upon a showing of substantially changed circumstances, it is within the sound discretion of the trial court to award or modify the amount of child support or alimony payments. Luff v. Luff, --- W.Va. ---, 329 S.E.2d 100 (1985); Zirkle v. Zirkle, --- W.Va. ---, 304 S.E.2d 664 (1983); Shannon v. Shannon, 165 W.Va. 662, 270 S.E.2d 785 (1980). 2 Nevertheless, 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. Zirkle, --- W.Va. ---, 304 S.E.2d 664; Hopkins, 168 W.Va. 480, 284 S.E.2d 907; Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); Holcomb, 122 W.Va. 293, 8 S.E.2d 889; Harman, 120 W.Va. 199, 196 S.E. 361; Biggs v. Biggs, 117 W.Va. 471, 185 S.E. 857 (1936).

In the instant case, it is undisputed that $22,900 in alimony and child support installments had accrued, and only $5,155.98 had been paid toward that obligation. Since there was no showing of fraud by the appellant in obtaining the alimony and child support awards, the circuit court was without jurisdiction to enter an order modifying the appellee's obligation to pay the $17,744.02 still owed on accrued installments.

II.

The appellant contends that the circuit court erred in concluding that there had been a material change in the parties' circumstances and in ordering the suspension of all future alimony payments to the appellant. We agree.

We must first admonish the circuit court to comply with the requirement to specially and separately state its findings of fact and conclusions of law on the record. Jones v. Jones, --- W.Va. ---, 345 S.E.2d 313 (1986); Kemp v. Kemp, --- W.Va. ---, 331 S.E.2d 867 (1985). The mere conclusion by the court below that there existed a material change in the parties' circumstances, without specific factual findings, deprives this Court of the benefit of the trial court's reasoning in deciding to cancel the alimony award.

We have throughly reviewed the record and find it sufficient to rule that the circuit court abused its discretion in relieving the appellee of any future obligation to pay alimony. See Prete v. Merchants Property Insurance Co., 159 W.Va. 508, 223 S.E.2d 441 (1976). In so ruling, we are mindful of the fact that the party petitioning for a modification of the support provisions of a divorce decree bears the burden of showing a substantial change of circumstances. Luff, --- W.Va. ---, 329 S.E.2d 100, accord Vines v. Vines, 409 So.2d 839 (Ala.Civ.App.1981); Early v. Early, 659 S.W.2d 321 (Mo.Ct.App.1983); Dale v. Dale, 13 N.J.Super. 59, 80 A.2d 234 (1951); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974).

We are not convinced that the relative economic conditions of the parties have changed in so substantial a fashion to justify a modification of the appellee's support...

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