John M. v. Sharon M., 21-0377

CourtSupreme Court of West Virginia
PartiesJohn M., Respondent Below, Petitioner v. Sharon M., Petitioner Below, Respondent
Docket Number21-0377
Decision Date21 September 2022

John M., Respondent Below, Petitioner

Sharon M., Petitioner Below, Respondent

No. 21-0377

Supreme Court of Appeals of West Virginia

September 21, 2022

Marion County No. CC-24-2020-D-AP-2


Petitioner John M., by counsel Stephen A. Wickland, appeals the June 2, 2021, order of the Circuit Court of Marion County that denied his motion to eliminate the requirement that he pay spousal support to respondent Sharon M., his ex-wife. Respondent, by counsel Kristine A. Burdette, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties married in 1972, separated in 1998, and were divorced by order entered on September 7, 1999. In their divorce order, the family court found that petitioner-husband was at fault for the breakup of the marriage due to his physical and emotional abuse of respondent-wife; and that wife had stayed at home to raise the parties' three children during part of the marriage and, as a result, sacrificed ten years of work history. At the time of their divorce, husband's yearly gross income was $60,996 and wife's yearly gross income was $24,468. The family court found that "[w]ife's income [was] far smaller than [h]usband's and she needs [spousal support] to maintain a reasonable standard of living." Accordingly, the family court ordered husband to pay wife $300 per month in spousal support beginning on June 1, 1999, and continuing until further order of the court, the death of either party, or the wife's remarriage. The family court allowed the parties to retain their IRAs as separate property, but the family court granted wife a 44.5% share of husband's pension benefits. Wife has not remarried and she retired in 2017. Husband later remarried, retired in 2019, and is sharing monthly expenses with his current wife.


On May 30, 2019, husband filed a "Motion to Eliminate Spousal Support" claiming that the parties' divorce decree did not allow spousal support to be taken from husband's separate property, and that wife's portion of his pension is more than wife's spousal support payment. Husband claimed that on May 30, 2019, he had $333,650 in total assets which included his home ($144,000), his cars ($19,650), stocks ($47,000), an IRA ($107,000), and bank accounts ($20,000). Husband further claimed that, on that date, wife had $470,000 in total assets which included her home ($125,000), her car ($20,000), a savings account ($45,000), and an IRA ($280,000). Wife filed an answer in which she argued that "there has not been a substantial change in circumstances since the entry of the last order." The family court held a hearing on husband's motion on October 31, 2019.

By order entered November 1, 2019, the family court denied the motion to eliminate husband's spousal support obligation. The family court found wife's monthly expenses to be $1,926.50 per month, leaving her with a monthly overage of $84.39; and husband's monthly expenses to be $1,779.50 per month, leaving him with a monthly overage of $3,528.43. The family court further found that wife's gross income was $2,010.89 per month, which included her social security benefits, her proceeds from husband's pension, and her spousal support payment from husband. The family court determined that, in 2019, wife was earning $337.32 less per year than she was earning at the time the final divorce order was entered in 1999. The family court also found wife's share of husband's pension was actually a result of the family court's property distribution order, and to include this amount in wife's income would wrongfully take away her equitable distribution share of the parties' marital property.

Moreover, the family court determined that wife was still in need of spousal support. Specifically, the family court found that:

8. If [wife's] pension payment is ignored, she has a gross monthly income of $1,589.50 less her monthly expenses of $1,926.50, which leaves her at a loss of $337.00 per month
9.If one-half of [husband's] pension is ignored, he has a gross monthly income of $2,377.81 less his adjusted monthly expenses of $1,7779.50, which leaves him $589.31 per month
10. Under both scenarios, [wife] is still in need of spousal support and [husband] has more than enough resources from his income to pay spousal support
11. [Husband] argues that [his] earnings after marriage are separate property. While his earnings are his separate property, [husband] misses the mark that his income from retirement is still earnings. Further, [husband] argues that [wife] is "double dipping" in [his] pension if she continues to receive [spousal support]. Quite to the contrary, to require [wife] to use her portion of the pension penalizes her and provides a windfall to [husband].

Husband appealed the family court's order to the circuit court and wife filed a response. Following oral argument, the circuit court remanded the case to the family court for a


determination regarding whether a substantial change of circumstances had occurred that would justify...

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