Nichols v. Nichols

• Decision Date: 05 July 1977
• Docket Number: No. 13733,13733
• Citation: 236 S.E.2d 36,160 W.Va. 514
• Court: West Virginia Supreme Court
• Parties: Mary Louise NICHOLS v. Duane Guy NICHOLS.

Page 36

236 S.E.2d 36

160 W.Va. 514

Mary Louise NICHOLS v.Duane Guy NICHOLS.

No. 13733.

Supreme Court of Appeals of West Virginia.

July 5, 1977.

Syllabus by the Court

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.

Wilson, Frame & Rowe, Richard E. Rowe, Morgantown, for appellant.

Edgar F. Heiskell, III, Morgantown, for appellee.

CAPLAN, Chief Justice:

Mary Louise Nichols was granted a divorce from Duane Guy Nichols by a decree of the Circuit Court of Monongalia County dated August 26, 1974.The decree ratified and confirmed a property settlement agreement previously entered into between the parties.Pursuant to the agreement, and as set forth in the final decree, Duane Guy Nichols agreed and was ordered to pay to Mary Louise Nichols the sum of Three Hundred Ten Dollars per month as support and maintenance for each of two children and he further agreed and was ordered to pay to Mary Louise Nichols the sum of One Hundred Ninety Dollars per month as alimony.

The decree provided that the alimony was to cease after four years or when she obtained her Master's Degree, whichever occurred first.In addition, Duane Nichols agreed to carry health insurance on the children and to be responsible for their major medical and dental bills; to pay one-half the cost of the children's musical instruction and tutoring expenses, if necessary; pay for their college education; maintain insurance on his life with the children as beneficiaries; and to certain other obligations.The exclusive possession of the marital residence was retained by Mary Louise Nichols and she assumed the obligation of paying the monthly payment on the property which amounted to $312.00 per month.

Approximately fifteen months later, in November, 1975, Duane Nichols was notified that his deposition would be taken for the purpose of discovering his true and real financial standing and status.Subsequent to the taking of this deposition, Mary Louise Nichols filed a petition seeking a modification of the August 26, 1974 order, asking for an increase in the support and alimony payments.In this petition, Mary Louise Nichols alleged that there had been a change in circumstances since the August 26, 1974 order, which would merit consideration for an increase in the payments to her.She alleged that Duane Nichols had received a substantial increase in income; that he had additional income from sources other than his salary at the University; and that both the childrens' and her expenses had increased which necessitated a need for an increase in the monthly payments to her.

Duane Nichols moved to dismiss the petition, charging that: (1) insufficient facts were alleged to show a change of circumstances to either of the parties; (2)he received an increase of seven to ten percent in salary and income over the preceding year which had been anticipated by the parties at the time of the 1974 agreement; and, (3) it had been "only one year and four months since the entry of this final order (August 26, 1974) and that in that one year and four months there has been no change of circumstances to either of the parties that was not contemplated at the time of the entry of the final order."

The evidence of record reveals that Duane Guy Nichols has Ph. D. in Chemical Engineering and is an associate...