Louk v. Louk, 19693

• Decision Date: 29 November 1990
• Docket Number: No. 19693,19693
• Citation: 184 W.Va. 164,399 S.E.2d 875
• Parties: Sally C. LOUK v. Luther J. LOUK.
• Court: West Virginia Supreme Court

Page 875

399 S.E.2d 875

184 W.Va. 164

Sally C. LOUK v. Luther J. LOUK.

No. 19693.

Supreme Court of Appeals of West Virginia.

Nov. 29, 1990.

Syllabus by the Court

"By its terms, W.Va.Code § 48-2-16 [1976] requires a circuit court to consider the financial needs of the parties, their incomes and income earning abilities and their estates and the income produced by their estates in determining the amount of alimony to be awarded in a modification proceeding." Syllabus point 2, Yanero v. Yanero, --- W.Va. ----, 297 S.E.2d 863 (1982).

LaVerne Sweeney, Grafton, for Sally C. Louk.

Carlton K. Rosencrance, Elkins, for Luther J. Louk.

PER CURIAM:

This is an appeal by Sally C. Louk from an order of the Circuit Court of Randolph County which modified a previous divorce decree and which transformed a prior permanent alimony award into a rehabilitative alimony award payable for a maximum of five years. On appeal, the appellant claims that the trial court erred in modifying the permanent alimony award. After reviewing the law and the record, this Court agrees and reverses the decision of the circuit court.

On March 27, 1986, the appellant and Luther J. Louk, who had been married thirty-three years, and who were contemplating a divorce, entered into a written property settlement agreement. The agreement, which was prepared by the appellant's attorney, provided that the appellant's husband would pay the appellant $150 per month on the 5th of every calendar month beginning on the 5th of May, 1986.

The parties were subsequently divorced by a divorce decree entered on April 11, 1986. The decree incorporated the parties' March 27, 1986, agreement and directed the appellant's husband to pay the appellant $150 per month permanent alimony.

On December 30, 1987, Luther J. Louk filed a petition to modify the divorce decree. In his petition, he alleged that he had not consulted with a personal attorney prior to the execution of the property settlement agreement, and that the agreement, as executed, did not reflect the actual agreement of the parties. He stated that the actual agreement was that he was to pay the appellant $150 per month for a maximum period of one year from the date of the divorce. He also claimed that since entry of the divorce decree the circumstances of the parties had changed. He prayed that the agreement be modified to reflect the actual agreement of the parties.

Following the filing of the petition for modification, the matter was referred to a family law master, and extensive hearings were conducted. At the close of the hearings, the family law master suspended all alimony payments, pending resolution of the questions raised.

In a decision issued on May 30, 1989, the family law master found that the agreement entered into by the parties was not ambiguous and clearly provided that the appellant's husband was to pay alimony as set forth in the agreement. He also found that the appellant's husband's contention that alimony payments were to be limited to one year was not supported by the evidence. However, the master further recommended that the alimony award terminate upon the remarriage of the appellant or the death of her husband, whichever should first occur, and that the alimony award be confined to a maximum period of five years unless sooner terminated by the death of one of the parties.

The parties filed objections and exceptions to the family law master's report, and the matter was set for argument before the Circuit Court of Randolph County on or about October 16, 1989. However, before a hearing was conducted, the circuit court, on October 13, 1989, entered an order adopting the findings of the family law master and modifying the divorce decree as recommended by the family law master.

In the present proceeding, the appellant claims that the trial court erred in converting the permanent alimony award into a rehabilitative alimony award. She also claims that the family law master's decision should have been made retroactive to the time that the alimony payments were suspended.

This Court has recognized that, as a general rule, after alimony has been awarded, to justify a modification of the amount awarded, the petitioner must show that there has been a substantial change in the circumstances of the parties. Law v. Law, --- W.Va. ----, 356 S.E.2d 637 (1987); Zirkle v. Zirkle, --- W.Va. ----, 304 S.E.2d 664 (1983). In determining whether there has been a substantial change in the circumstances of the parties, a circuit court is required to consider the factors set forth in syllabus point 2 of Yanero v. Yanero, --- W.Va. ----, 297 S.E.2d 863 (1982). That syllabus point provides:

By its terms, W.Va.Code § 48-2-16 [1976] requires a circuit court to consider the financial needs of the parties, their incomes and income earning abilities and their estates and the income produced by their estates in determining the amount of alimony to be awarded in a modification proceeding.

See Luff v. Luff, --- W.Va. ----, 351 S.E.2d 434 (1986). ¹

In the petition to modify involved in the present proceeding, the appellant's husband alleged that the appellant was gainfully employed on a full time basis at a local clothing factory at a substantial wage and had become able to provide financially for her own personal support, whereas he had been unemployed since the divorce and had only marginally sufficient income from military retirement pay to pay for the necessaries of life. He indicated that, in effect, the circumstances were such that the original alimony award...