Price v. Price

• Decision Date: 12 July 1999
• Docket Number: No. 25361.,25361.
• Court: West Virginia Supreme Court
• Parties: Marguerite L. PRICE, Appellant, v. Robert Lynn PRICE, Appellee.

517 S.E.2d 485

205 W.Va. 252

Marguerite L. PRICE, Appellant, v. Robert Lynn PRICE, Appellee.

No. 25361.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1999.

Decided July 12, 1999.

Andrew S. Nason, Esq., Pepper, Nason & Hayes, Charleston, West Virginia, Attorney for Appellant.

Charles W. Covert, Esq., St. Albans, West Virginia, Attorney for Appellee. WORKMAN, Justice:

This is an appeal by Marguerite L. Price (hereinafter "Ms. Price" or "Appellant"), from a final order of the Circuit Court of Kanawha County overruling Appellant's exceptions to the Family Law Master's recommended order. Appellant filed a petition with the Family Law Master seeking to modify the final divorce order to receive additional child support from Robert Lynn Price (hereinafter "Mr. Price" or "Appellee"), her former husband. The Family Law Master recommended only a $50.00 increase in the child support, which was originally set by an agreed order incorporated into the final divorce order in 1988. Appellant filed exceptions to the Family Law Master's recommended order and such exceptions were overruled by the circuit court. Appellant contends that the Family Law Master erred in refusing to include the cost of after-school child care when calculating child support; that the Family Law Master erred by using the wrong child support amount to determine whether the new calculation resulted in a 15% deviation; that the Family Law Master erred in determining that setting the full amount of child support would invalidate a previous agreement between the parties regarding payment for college; and that the circuit court abdicated its duty to review the Family Law Master's ruling when it did not review a record or hold oral arguments. We agree with Appellant's contentions, and reverse the circuit court's order.

I. Background Facts

Appellant and Appellee were married on April 30, 1983, and had one child, John, born on March 24, 1986. The parties separated in April 1987, and John remained with his mother. Appellant filed for divorce in 1987. On December 15, 1987, the parties entered into an agreement with regard to the divorce, custody, division of property and child support. This separation agreement was incorporated into the final divorce order, entered May 18, 1988. Under the agreement, Appellant was given custody of John and was awarded child support in the amount of $325.00 per month. The parties agree that the child support guidelines in effect at that time¹ would have required Appellee to pay $425.00 per month in child support. Nevertheless, the parties agreed, in writing, to the $100.00 reduction in child support in consideration that they would both be responsible financially to support their child if he chose to attend college or otherwise furthered his education after high school. In such event, Appellee agreed to pay the cost of tuition and books and Appellant agreed to contribute generally to the cost of the child's education.

In 1996, Appellant filed a petition for modification seeking to increase the Appellee's child support obligation. On October 7, 1997, a hearing on the petition was held by the Family Law Master. No transcript, tape recording or other record was made of that hearing.² At that time, John was eleven and a half years old and in the sixth grade. He was enrolled at a day care center for purposes of after school child care, on holidays and during summer vacation. The cost of that day care was $2,582.00 annually, or $215.16 per month. At the time of the petition for modification, Appellant was making $46,500 per year gross income, and Appellee was making $49,000 per year gross income.

On November 16, 1997, the Family Law Master issued its findings and recommended decision, concerning Appellant's modification petition. The Family Law Master found, among other things, that the parties had agreed to a monthly $100.00 reduction in child support and that part of the consideration for the reduction was Appellee's obligation to pay for college tuition and books. The Family Law Master, without taking any evidence on the issue, found that day care was not required for a child of eleven and a half years. Consequently, the Family Law Master did not include the day care costs in calculating child support. Using the statutorily-approved child support formula,³ the Family Law Master computed the child support required by the formula to be $486.00 per month. Additionally, despite the previously agreed and court-approved child support amount of $325.00, the Family Law Master found the child support figure for modification purposes to be $425.00 per month. This was the amount to which Appellant would have been entitled as calculated under the applicable child support formula at the time of the divorce in 1988, had the parties not agreed to the reduced amount of $325.00. Using $425.00 per month as the base figure, the Family Law Master found that $486.00 per month was less than the 15% deviation necessary to trigger a modification of child support. The Family Law Master further found that if the child support were modified to the full amount ($486.00), the modification would invalidate the parties' agreement regarding Appellee's payment of college tuition and books. The Family Law Master, however, did raise child support to $375.00 per month to reflect the increased costs of raising a child, effective December 1, 1996.

Appellant filed exceptions and amended exceptions to the Family Law Master's ruling.⁴ Without conducting a hearing, the circuit court overruled those exceptions, as reflected by an opinion letter dated April 1, 1998.⁵ It is from the April 7, 1998, order that Appellant now appeals.

II. Standard of Review

As this Court has often observed, a recommended order of a family law master is reviewable by a circuit court pursuant to statute. See W.Va.Code §§ 48A-4-16 and -20 (1998). However, because the circuit court adopted the recommendations of the Family Law Master, we apply the standard of review expressed in syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):

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.

"This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

III. Discussion

The main issue before us is whether a modification of the child support order to comply with the recommended statutory guidelines is warranted, and if so, in what amount. Appellant breaks this main issue into several assignments of error, which will be discussed in turn. However, a brief discussion of the law regarding the modification of child support is warranted.

West Virginia Code § 48-2-15(e) (1998)⁶ provides, in pertinent part, that:

The court may also from time to time afterward, upon the motion of either of the parties or other proper person having actual or legal custody of the minor child or children of the parties, revise or alter the order concerning the custody and support of the children, and make a new order concerning the same, issuing it forthwith, as the circumstances of the parents or other proper person or persons and the benefit of the children may require: Provided, That all orders modifying child support shall be in conformance with the requirements of support guidelines promulgated pursuant to article one-b, chapter forty-eight-a of this code: Provided, however, That an order providing for child support payments may be revised or altered for the reason, inter alia, that the existing order provides for child support payments in an amount that is less than eighty-five percent or more than one hundred fifteen percent of the amount that would be required to be paid under the child support guidelines promulgated pursuant to the provisions of said section....

We have extensively discussed when it is appropriate for a circuit court or a family law master to modify a child support order. In syllabus point one of Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268, we explained that:

For cases arising before July 1, 1990, a party seeking a modification of a child support order must show that the welfare of the child or children requires the modification and that a substantial change of circumstances occurred after the entry of the existing order that was not adequately dealt with in that order. For cases arising after July 1, 1990, a party seeking a modification of a child support order must either meet the criteria outlined above or show that the support award is not within 15% of the child support guidelines adopted pursuant to W.Va.Code, 48A-2-8 [1989].

We further explained in Gardner that:

In addition to the factors or circumstances listed for consideration in Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785, 787 (1987),⁷ the family law master or circuit court may determine that a substantial change in circumstances has occurred because of a change in the cost of living caused by inflation or increases in the children's needs because they are older, or unexpected changes affecting basic needs such as housing or transportation.

Gardner, 184 W.Va. at 261, 400 S.E.2d at 269 (footnote added).

Further, West Virginia Code § 48A-1B-11 (1998) provides additional guidance: "The provisions of a child support order may be modified if there is a substantial change of circumstances. If application of the guideline would result in a new order that is more than...