Lambert v. Miller

• Citation: 178 W.Va. 224,358 S.E.2d 785
• Decision Date: 22 May 1987
• Docket Number: No. 17159,17159
• Parties: Danetta Day Miller LAMBERT v. Vincent W. MILLER, Jr.
• Court: Supreme Court of West Virginia

Page 785

358 S.E.2d 785

178 W.Va. 224

Danetta Day Miller LAMBERT v. Vincent W. MILLER, Jr.

No. 17159.

Supreme Court of Appeals of

West Virginia.

May 22, 1987.

Syllabus by the Court

1. 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].

2. "Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

3. Remarriage of a divorced parent, standing alone, is not sufficient to justify modification of a child support order. It is, however, a circumstance that may be considered in weighing the equities of the situation, where other factors are present which may warrant the trial court, in its sound discretion, to modify the order.

Steven M. Askin, David P. Greenberg, Askin, Pill, Scales & Burke, Martinsburg, for appellant.

Charles F. Printz, Jr., Rice, Douglas & Shingleton, Martinsburg, for appellee.

McHugh, Justice:

This case is before this Court upon the appeal of Danetta Day Miller Lambert from an order entered August 27, 1985, by the Circuit Court of Berkeley County. Pursuant to that order, the court modified its earlier order by terminating the appellee's obligation to pay for the support and maintenance of the parties' infant child. This Court has before it the petition for appeal, all matters of record and briefs.

I

The appellant, Danetta Day Miller Lambert, and the appellee, Vincent Miller, Jr., obtained a divorce. Custody of the parties' two children, Vincent III and Megan, was awarded to the appellant. The appellee was directed to pay the appellant $50 per week for the support of the children.

Approximately one year later, the appellee filed a petition in the Circuit Court of Berkeley County requesting custody of the parties' son, Vincent III. He further requested that his child support obligation be correspondingly reduced. Shortly thereafter, the appellee remarried. ¹ The parties then entered into an agreement wherein the appellee obtained custody of Vincent III and agreed to continue the weekly payment of $50 to the appellant for the support and maintenance of their other child, Megan, who was to remain in the appellant's custody. The trial court entered an order incorporating the parties' written agreement on August 27, 1984.

Eight months later, the appellee filed a petition requesting that his obligation to pay support for the remaining child be terminated. The appellee contended that his remaining support obligation should be terminated because there had been a substantial change in circumstances since the entry of the previous order. A hearing was held regarding the appellee's petition for termination of his child support obligation.

Evidence at that hearing demonstrated that the appellant was employed by General Motors Corporation, and her annual gross income was approximately $30,000. The appellee was employed as a school teacher by the Berkeley County Board of Education and earned approximately $22,000 annually. The appellee's second wife was also employed by the Board of Education and was expecting a child within a few months. ² From the testimony elicited at the hearing and from the financial disclosure statements of the parties, the court concluded that both parties contributed an almost equivalent percentage of their respective income to the support of the child in his or her custody.

Ultimately, the court modified its previous order. In terminating the appellee's child support obligation, the court concluded that the appellee's expenditures for the support of his son since the order awarding him custody constituted a sufficient change in circumstances.

II

The issue before us is whether there has been a substantial change in circumstances which was not within contemplation of the parties at the time the child support order was entered, thereby warranting a modification of the order.

The appellant argues that the trial court erred in terminating the appellee's obligation to pay child support because there had been no substantial change in circumstances since the previous order had been entered. Conversely, the appellee stresses that the subsequent increase in his monthly expenditures, after receiving custody of his son, constitutes a substantial change in circumstances.

In West Virginia, the authority to award or modify child support in a divorce proceeding is found in W.Va.Code, 48-2-15 [1986]. ³ Pursuant to this section, a court may modify its original order as to child support, as the substantially changed circumstances of the parties and the needs of the children may require. Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 664, 671 (1983); Douglas v. Douglas, 171 W.Va. 162, 163-64, 298 S.E.2d 135, 136-37 (1982); State ex rel. Ravitz v. Fox, 166 W.Va. 194, 200, 273 S.E.2d 370, 372 (1980); see syl. pt. 6, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978).

This Court has recognized that the issue of whether there has been a substantial change in circumstances is essentially a factual determination. See, e.g., Douglas v. Douglas, supra at 137; Nichols v. Nichols, 160 W.Va. 514, 517, 236 S.E.2d 36, 38 (1977). Therefore, what constitutes "a substantial change in circumstances" is often incapable of precise definition.

A trial court may consider various factors to determine if a substantial change in circumstances has occurred. Among some of the factors or circumstances considered 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. See 24 Am.Jur.2d Divorce and Separation §§ 1082-1088 (1983); see generally annotation,Changes in Financial Condition or Needs of Parents or Children as Ground for Modification of Decree for Child Support Payments 89 A.L.R.2d 7 (1963).

In Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977), this Court considered whether an increase in the ex-husband's income constituted a substantial change in circumstances, thereby warranting modification of the child support order. In Nichols, the trial court's order awarding an increase in child support and alimony payments was reversed. In that case, the divorce decree ratified and confirmed a written property settlement agreement wherein the parties agreed to a sum certain that the ex-husband would pay for monthly child support and alimony. Fourteen months later, the ex-wife sought an increase in support contending that the ex-husband's salary increased since the divorce order which constituted a substantial change in circumstances. This Court determined that, other than the inflationary spiral, "there was no change of circumstances not contemplated at the time of the original agreement." 160 W.Va. at 517, 236 S.E.2d at 38. (emphasis added). The Court, therefore, found no justification for an increase in child support at that time. Id.

Recently, in Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987), this Court concluded that the economic conditions of the parties in that case had not changed in so substantial a fashion to justify modification of the ex-husband's support obligations. In syllabus point 4 of Goff, we held that "[i]n order to satisfy the requirement of a substantial change in circumstances necessary to grant a modification in [alimony and child] support obligations, the change must be one which would not reasonably have been expected at the time of the divorce decree."

Several jurisdictions considering this issue have similarly reasoned that child support orders may be modified only upon an uncontemplated change of circumstances occurring since the entry of the previous order. Floyd v. Floyd, 393 So.2d 22, 23 (Fla.Dist.Ct.App.1981); Cooper v. Cooper, 219 Neb. 64, 66, 361 N.W.2d 202, 204 (1985); In re Marriage of Zander, 39 Wash.App. 787, 790-91, 695 P.2d 1007, 1009 (1985); annotation, Change in Financial Condition or Needs of Parents or Children as Ground for Modification of Decree for Child Support Payments 89 A.L.R.2d 7, § 5 (1963); see also Schwartz v. Schwartz, 90 A.D.2d 498, 499, 454 N.Y.S.2d 747, 749 (1982); Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn.Ct.App.1978). Thus, a party seeking modification of a child support order must show not only a substantial change in the circumstances since the entry of the order, but also that such change was not within the contemplation of the parties at the time the order was entered. Graber v. Graber, 220 Neb. 816, 819, 374 N.W.2d 8, 10 (1985); see also Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

In In re Marriage of Zander, 39 Wash.App. 787, 695 P.2d 1007 (1985), the court denied the appellant's requested modification of his child support payments, holding that support orders can be modified only upon an uncontemplated change of circumstances. There, the ex-husband appealed the trial court's modification order extending child support obligations beyond the age of eighteen. Both of the parties were aware that the children would graduate from high school at least one year behind normal progression when the initial order was entered. In holding that these facts did not rise to a substantial change of circumstances to justify modification of the original order, the court reasoned:

The determinative issue is: could 'the facts now relied upon as establishing a change in the circumstances have been presented to the court in a previous hearing?' (...