Lucas v. Lucas

• Decision Date: 05 December 2003
• Docket Number: No. 31341.,31341.
• Court: West Virginia Supreme Court
• Parties: Rodney D. LUCAS, Plaintiff Below, Appellant v. Brenda K. LUCAS, Defendant Below, Appellee

592 S.E.2d 646

215 W.Va. 1

Rodney D. LUCAS, Plaintiff Below, Appellant v. Brenda K. LUCAS, Defendant Below, Appellee

No. 31341.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 2003.

Decided December 5, 2003.

George B. Vieweg, Shawn D. Bayless, Lester, Vieweg & Bayless, Charleston, West Virginia, Attorney for the Appellant.

Charles R. Webb, Giatras & Webb, Charleston, West Virginia, Attorney for the Appellee. ALBRIGHT, Justice:

This is an appeal by Rodney D. Lucas (hereinafter "Appellant") from an order of the Circuit Court of Kanawha County affirming a decision by the family court reducing an award of spousal support from $850.00 to $700.00 per month. The Appellant contends that the family court and lower court erred in failing to terminate the Appellant's support obligation completely based upon findings that a de facto marriage exists between the Appellant's ex-wife, Brenda K. Lucas (hereinafter "Appellee") and a third-party, Mr. David Davis. Upon thorough review of the record, briefs, and arguments of counsel, we affirm the determination of the lower court in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Factual and Procedural History

On March 27, 1997, a divorce was granted to the Appellant and the Appellee. The Appellant was ordered to pay $850.00 monthly in spousal support. On May 10, 2000, the Appellant filed a petition for termination of spousal support alleging that since October 1999, a de facto marriage had existed between the Appellee and a third-party, Mr. David Davis. Family law master Robert M. Montgomery conducted hearings, during which the Appellee admitted that she had resided with Mr. Davis in Huntington, West Virginia, for a period of over two years; maintained a conjugal relationship with him; used his residence as her mailing address; shared household duties; and jointly owned several vehicles with Mr. Davis. The Appellee further indicated that she paid Mr. Davis $300.00 monthly toward shared household expenses. Testimony was also received concerning alterations in the annual income of both parties since the divorce. The Appellant and the Appellee each filed financial disclosures. At the time of separation in 1995, the financial evidence indicated that the Appellant's gross income was $128,320.00. By 1999, the Appellant's gross income had decreased to $116,779.00. The Appellee's income in 1999 was $31,000.00.

By order dated October 10, 2001, the family law master found that a de facto marriage, as defined in West Virginia Code § 48-5-707 (2001), existed between the Appellee and Mr. Davis and that the evidence justified a reduction of support from $850.00 monthly to $700.00 monthly, representing a seventeen and one-half percent reduction. The family law master reasoned that the de facto marriage "has provided certain financial advantages for the [Appellee] such as relieving her from the payment of rent and utilities, except telephone, as well as reducing her costs for groceries and food expenses as well as the shared vacations and other conviences [sic]." The family law master further found that "[t]here still exists a significant disparity in income from the time the parties hereto separated in November 1995 until the present but the [Appellant's] income has decreased and the [Appellee's] income has increased." Regarding commingling of assets, the family law master found that the Appellee and Mr. Davis "have maintained the majority of their assets separately and in their respective separate names." The family law master also referenced the Appellee's stress, thyroid, and stomach ailments.

Family Court Judge D. Mark Snyder¹ reviewed the Appellant's petition for termination of support, and by order dated June 25, 2002, adopted the family law master's recommended findings that the Appellant's support obligation should be reduced to $700.00 monthly. The Appellant appealed the family court determination to the lower court, and by order dated October 22, 2002, the lower court denied the petition without a hearing. The Appellant now appeals to this Court, contending that the lower tribunals erred by failing to completely terminate the Appellant's support obligation where a de facto marriage existed between Appellee and a third party; failing to make the reduction retroactive to the date when the Appellee was served with the petition for termination of support; and failing to award attorney fees to the Appellant.

II. Standard of Review

In syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), this Court explained as follows:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

In view of the changes to the family law master system, we also hold that in reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review. Similarly, in the syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977), this Court explained that "[q]uestions 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." Based upon this standard of review, we address the Appellant's allegations of error in this matter.

III. Discussion

A. Discretionary Determination Regarding Support Reduction or Termination

West Virginia Code § 48-5-707(a)(1) provides, in part, as follows: "In the discretion of the court, an award of spousal support may be reduced or terminated upon specific written findings by the court that since the granting of a divorce and the award of spousal support a de facto marriage has existed between the spousal support payee and another person."² The Appellant contends that the family court erred in failing to completely terminate the Appellant's support obligation based upon the finding that a de facto marriage exists between the Appellee and a third party. The Appellant's argument is premised upon the assertion that the legislature intended this statute to prevent a payee ex-spouse from continuing to obtain assets from a payor ex-spouse after entering into a de facto marriage.

1. Cohabitation and Modification Prior to Enactment of West Virginia Code § 48-5-707

Prior to the enactment of West Virginia Code § 48-5-707, this Court had addressed the question of support reduction based upon the recipient's cohabitation and had formulated express principles controlling the issue. In Wight v. Wight, 168 W.Va. 334, 284 S.E.2d 625 (1981), for instance, the appellant argued that the appellee's cohabitation should relieve the appellant from the obligation of continuing to pay support. This Court examined the governing statute at that time, West Virginia Code § 48-2-15 (1980), and concluded that the statute "makes no reference to the conduct of the parties after the granting of a divorce. Rather it makes their financial circumstances and needs and the requirements of justice the factors to be considered in determining whether an alimony award should be modified." 168 W.Va. at 337, 284 S.E.2d at 626-27. Such rationale was reiterated in Judith R. v. Hey, 185 W.Va. 117, 405 S.E.2d 447 (1990), in which this Court concluded that "an ex-wife's cohabitation with an adult male not her husband does not constitute grounds for termination or reduction of alimony award absent showing of change in financial condition of ex-wife by reason of contribution by the person with whom she cohabits." 185 W.Va. at 121, 405 S.E.2d at 451; see also McVay v. McVay, 189 W.Va. 197, 429 S.E.2d 239 (1993).

In syllabus point four of Dalton v. Dalton, 207 W.Va. 551, 534 S.E.2d 747 (2000), this Court explained: "The payment of alimony mandated in a divorce order does not automatically terminate upon the mere cohabitation of the parties to the divorce order, but remains in full force and effect, and the alimony obligation continues as defined in the divorce order." Syllabus point five continued:

The post-divorce cohabitation of former spouses is one factor to be considered in determining whether an obligor former spouse has fulfilled his or her support obligations as required by the parties' divorce decree. The inquiry is whether and to what extent the obligor former spouse contributed financially to the support of the obligee former spouse and/or the parties' child(ren) during the parties' cohabitation. Any monetary contribution made by the obligor former spouse to the obligee former spouse for the support of the obligee former spouse and/or the parties' child(ren) constitutes a credit toward the fulfillment of the obligor former spouse's court-ordered support obligations.

Among this Court's general standards regarding modification of spousal support obligations, we have consistently maintained that "the primary standard to determine whether or not a trial court should modify an order awarding alimony is a substantial change of circumstances." Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 664, 671 (1983); see also Adkins v. Adkins, 208 W.Va. 364, 540 S.E.2d 581 (2000); Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985). This Court has previously noted the difficulty in precisely defining the phrase ...