Wharton v. Wharton

• Decision Date: 10 December 1992
• Docket Number: No. 20732,20732
• Citation: 424 S.E.2d 744,188 W.Va. 399
• Court: West Virginia Supreme Court
• Parties: Robert Lewis WHARTON, Plaintiff Below, Appellee, v. Barbara Jean WHARTON, Defendant Below, Appellant.

Page 744

424 S.E.2d 744

188 W.Va. 399

Robert Lewis WHARTON, Plaintiff Below, Appellee, v. Barbara Jean WHARTON, Defendant Below, Appellant.

No. 20732.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 23, 1992.

Decided Dec. 10, 1992.

Syllabus by the Court

1. " 'In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.' Syllabus Point 1, Marcum v. Browning, W.Va. , 297 S.E.2d 204 [ (1982) ]; Syllabus, Waller v. Waller, 166 W.Va. 142, 272 S.E.2d 671 (1981); Syllabus Point 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1966); Syllabus Point 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945). Syllabus, Fizer v. Fizer, W.Va. , 310 S.E.2d 465 (1983)." Syllabus Point 3, Shank v. Shank, 182 W.Va. 271, 387 S.E.2d 325 (1989).

2. " 'While as a general rule alimony does not survive the death of the payor former spouse, where there are compelling equitable considerations which militate in favor of making alimony a charge against a deceased former spouse's estate, the circuit court has the power to make such an award pursuant to the same authority which entitled a court of equity to modify any alimony award to reflect changed circumstances.' Syl. pt. 2, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978)." Syllabus Point 1, Matter of Estate of Weller, 179 W.Va. 804, 374 S.E.2d 712, 79 A.L.R.4th 1 (1988).

3. " 'The purpose of W.Va.Code, 48-2-13(a)(4) (1986), is to enable a spouse who does not have financial resources to obtain reimbursement for costs and attorney's fees [incurred] [sic] during the course of the litigation.' Syllabus Point 14, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990)." Syllabus Point 6, Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991).

W. Dale Greene, Charleston, for appellee.

Donald K. Bischoff, Summersville, for appellant.

PER CURIAM:

Barbara Jean Wharton appeals the decision of the Circuit Court of Nicholas County that denied her an increase in alimony, refused to require her alimony to be a charge against the estate of Robert Lewis Wharton (her former husband) and denied her attorney's fees. On appeal, Mrs. Wharton contends that the circuit court abused his discretion in these matters. Because we find that the circuit court erred, we reverse the decision of the circuit court.

After eighteen years of marriage, Mr. and Mrs. Wharton were divorced on April 29, 1971. Mrs. Wharton was awarded custody of the four children, then ages 17, 13, 10 and 2 and Mr. Wharton, whose income was then $48,000, was required to pay $150 per child per month in child support and $650 per month in alimony and to provide a college education for each child. ¹ The divorce order did not distribute stock in a supply company that was begun in 1961 by Mr. Wharton and others. Mr. Wharton continues to own one-half of the stock and to be employed by the company. In 1988 the supply company had gross sales in excess of $5,000,000, total assets in excess of $1,000,000 and retained unappropriated earnings of about $500,000. In the divorce, Mrs. Wharton retained a 1970 Oldsmobile and the marital house was deeded to the parties' four children.

Mrs. Wharton did not remarry and her 1986 annual income of $8,336 was derived from alimony ($7,800), stock dividends ($509) and interest ($27). Although Mrs. Wharton, a high school graduate with some office skills, has been unemployed for five years, she worked as a receptionist and a clerk and was the proprietor of a used furniture store. Throughout their formative years Mrs. Wharton cared for the parties' four children ² and currently, she is caring for her seventy-nine-year-old mother who is suffering from Alzheimer's disease. ³ Mrs. Wharton's financial need is about $11,600 per year and, because of a lack of money, she has deferred medical treatment, dental work and new glasses. Mrs. Wharton also owns a 1976 Chevrolet, some AT & T stock, one-half interest in the former marital house ⁴ and a $10,000 certificate of deposit, all of which were gifts from her family.

Mr. Wharton remarried once but is not currently married. Mr. Wharton's gross income was $133,742 in 1985, $66,932 in 1986, $81,690 in 1987 and $104,638 in 1988. Mr. Wharton owns certain assets that produce about $3,000 per year in tax exempt interest and a tax shelter-real estate investment that generates a "paper" tax loss of approximately $4,000 per year. Mr. Wharton also owns a motor home (purchased for $62,300), two Model-A Fords, a Lincoln Continental, an IRA valued at $17,500, a pension valued at $126,500, stocks and bonds valued at $80,000 (most of which produce tax free income), a residence with an estimated value of $70,000, a condominium with an estimated value of $40,000 and a bank account of at least $6,000. Because of his employment, Mr. Wharton receives the following benefits: health insurance, life insurance, contributions to his pension plan, a company car and maintenance of the company car. Mr. Wharton's monthly financial need is $4,690.

The parties were referred to the family law master who, after hearing the evidence, said that "Mrs. Wharton lives on the edge of poverty, while Mr. Wharton enjoys a very substantial income and lifestyle [sic]." The master recommended that Mrs. Wharton's alimony be raised from $650 to $1,300 per month effective May 1, 1990.

Both parties petitioned the circuit court for review; Mr. Wharton objected to the alimony increase and Mrs. Wharton objected because the master did not recommend that the alimony be charged against her former husband's estate and did not award her attorney's fees. After hearing arguments on the petitions, the circuit court refused to increase Mrs. Wharton's alimony from $650 per month, refused to make Mrs. Wharton's alimony a charge against Mr. Wharton's estate and denied Mrs. Wharton's motion for attorney's fees and costs. Alleging that the circuit court had abused his discretion in these matters, Mrs. Wharton appealed to this Court.

I

W.Va.Code, 48-2-16(a) [1984] states that the award of alimony is "subject to subsequent modification unless there is some explicit, well expressed, clear, plain and unambiguous provision to the contrary set forth in the ... order granting the divorce." The party seeking the modification has the burden of showing that an unexpected substantial change of circumstances occurred. In Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987) we said that "[t]he party petitioning for a modification of the support provisions of a divorce decree bears the burden of showing a substantial change of circumstances" (Syllabus Point 3) and that "the change must be one which would not reasonably have been expected at the time of the divorce decree." (Syllabus Point 4, in part.)

An unexpected substantial change of circumstances can be shown by various factors. In Lambert v. Miller, 178 W.Va. 224, 226, 358 S.E.2d 785, 787 (1987) (considering modification of a child support order), we listed several factors that may be considered, including: "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, ... and the duration of the change...." In Syllabus Point 2, Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990) we expanded upon those factors that may be considered to show a substantial change in circumstances by holding that "a change in the cost of living caused by inflation or increases in the children's needs ... or unexpected changes affecting basic needs such as housing or transportation" can be a substantial change in circumstances.

The evidence in this case shows that both parties had substantial changes in circumstances. Mrs. Wharton, who was 40 years old in 1971 when she was divorced, has held only low paying jobs and since 1984 she has been unemployed. In addition, Mrs. Wharton is providing substantial care for her infirmed mother. Mr. Wharton's company is a financial success and his income increased from about $48,000 at the time of the divorce to about $104,000 in 1988. Based on the evidence of record, we find that Mrs. Wharton has shown uncontemplated substantial changes of circumstances.

Based on the unequal financial resources and potential earnings of the parties, the family law master recommended that Mrs. Wharton's alimony be doubled to $1,300 per month. See West Virginia Code, 48-2-16(b) [1984], which includes among the factors to be considered in determining the amount of alimony, "[t]he present employment income ... of each party ...; [t]he income-earning abilities of each of the parties ...; [and t]he financial need of each party...." ⁵

In his petition to the circuit court, Mr. Wharton successfully argued that consideration should be given to the income of Mrs. Wharton's mother because Mrs. Wharton controls the income through a power of attorney and provides her mother with substantial care. The monthly income of Mrs. Wharton's mother includes $460 from social security, $102 from a pension and about $200 from interest on certificates of deposit. However, the record contains no information on the living expenses for Mrs. Wharton's mother, except Mrs. Wharton's testimony that her mother's income is used to provide round-the-clock care, some of which occurs in the former home of Mrs. Wharton's mother. In Conner v. Conner, 175 W.Va. 512, 514, 334 S.E.2d 650, 652 (1985), we allowed a contribution similar "to rent" paid by a mother living with a party to be considered by the trial court, "particularly since the wife does not urge that the amount of alimony and child support awarded is inadequate." In the present case there is no evidence to justify considering Mrs. Wharton's mother's income to be a contribution similar "to rent."

Mr. Wharton also argues that the rental value of Mrs. Wharton's mother home should be added to...