Wight v. Wight, 14831

Citation168 W.Va. 334,284 S.E.2d 625
Decision Date02 December 1981
Docket NumberNo. 14831,14831
CourtSupreme Court of West Virginia
PartiesLucille Faye WIGHT v. Cecil Norton WIGHT.

Syllabus by the Court

"The right to fix the amount of alimony rests in the sound discretion of the chancellor, and this Court will not disturb his judgment unless he has grossly abused such discretion." Syllabus, Shannon v. Shannon, W.Va., 270 S.E.2d 785 (1980), quoting, Syllabus Point 2, Henrie v. Henrie, 71 W.Va. 131, 76 S.E. 837 (1912).

William L. Jacobs, Parkersburg, for appellant.

David R. Karr, Ravenswood, for appellee.

PER CURIAM:

This is an appeal by Cecil Norton Wight from a final order of the Circuit Court of Jackson County dismissing his petition for modification of a divorce decree. The appellant's principal assertion is that the trial court erred in holding that his ex-wife's unlawful cohabitation with another man did not constitute cause for modifying the previous alimony award. We do not agree, and for the reasons set forth below, we affirm the judgment of the circuit court.

By decree dated October 15, 1976, the Circuit Court of Jackson County granted Lucille Faye Wight, the appellee, a divorce from the appellant on the ground of cruel and inhuman treatment. The decree ratified, approved, and confirmed a written separation agreement entered into by the parties on September 15, 1976. The agreement provided that the appellee was to have custody of the couple's infant child, that she was to have exclusive possession and use of the couple's jointly-owned home, and that the appellant was to pay her child support and $325.00 per month alimony. 1 It also provided that the appellee would allow no person other than the couple's child and her parents to reside in the home without the appellant's prior written consent.

On April 25, 1979, the appellant filed a second petition for modification of the divorce decree. The petition alleged that the appellee "has become unfit to have the custody of said infant child in that she is openly living in a state of adultery with another male in the presence of the child ...." The appellant prayed that he be awarded custody of the infant child, or in the alternative, that he be relieved from all alimony requirements and that the appellee be required to remove the adult male living in the home.

A hearing was held on the petition to modify on June 4, 1979. At the hearing the appellee admitted that one Joe Franklin had lived in her house for approximately six months. She, however, denied having sexual intercourse with him. She indicated that since her divorce she had experienced difficulty in paying her bills and that a large portion of her income had gone toward the treatment of brain damage which had resulted from the appellant's prior beatings of her. She testified that she often passed out and that she received assistance from Mr. Franklin. No evidence was introduced showing the comparative incomes of the parties at the time of the filing of the petition. In addition, there was no evidence introduced showing a change in the appellant's income which would entitle him to a modification of the alimony. Nor was there substantial evidence showing that Mr. Franklin contributed to the expenses of the appellee's household. The only testimony in this area was that Franklin periodically purchased groceries and put gasoline in the car for recreational outings.

By order entered February 21, 1980, the court held that "the alimony of the Plaintiff should not be reduced or terminated by reason of the improper conduct of Plaintiff, it being the opinion of the Court that since the parties are divorced, the Plaintiff has no obligation of chastity to the Defendant...." The court proceeded to order that: "... the Court being of the opinion that while the Plaintiff's cohabitation with the Defendant over a period of several months prior to and up to the date of the hearing before the Court, was and is in violation of West Virginia Code, § 61-8-4, such conduct does not constitute grounds for the termination or reduction of an alimony award absent showing of a change in the financial condition of the Plaintiff by reason of a contribution by the adult male with whom she cohabits to the living expenses of the Plaintiff."

As previously noted, in this proceeding the appellant contends that the court erred in holding that the admitted unlawful cohabitation between the appellee and another man for a period of several months did not constitute grounds for the termination or reduction of her alimony. 2

The circuit court's authority to modify the divorce decree is from W.Va.Code, 48-2-15 [1980] which provides, in part:

"Upon ordering a divorce, the court may make such further order as it shall deem expedient, concerning the maintenance of the parties, or either of them ... and the court may, from time to time afterward, on the verified petition of either of the parties, revise or alter such order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice ...."

This 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. See, Shannon v. Shannon, W.Va., 270 S.E.2d 785 (1980); Nichols v. Nichols, W.Va., 236 S.E.2d 36 (1977); Sutherland v. Sutherland, 120 W.Va. 359, 198 S.E. 140 (1938); Miller v. Miller, 114 W.Va. 600, 172 S.E. 893 (1934).

In the syllabus of Shannon v. Shannon, supra, citing Syllabus Point 2 of Henrie v. Henrie, 71 W.Va. 131, 76 S.E. 837 (1912), we said:

"The right to fix the amount of alimony rests in the sound discretion of the chancellor, and this Court will not disturb his judgment unless he has grossly abused such discretion."

The appellant argues in his brief that appellee's sexual misconduct is a factor impinging on the justice of continuing the alimony obligation. In support of...

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7 cases
  • Gottsegen v. Gottsegen
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 22, 1986
    ...659, 556 P.2d 345 (1976); Myhre v. Myhre, 296 N.W.2d 905, 908 (S.D.1980); Stahl v. Stahl, 136 Vt. 90, 385 A.2d 1091 (1978); Wight v. Wight, 284 S.E.2d 625 (W.Va.1981); Van Gorder v. Van Gorder, 110 Wis.2d 188, 327 N.W.2d 674 (1983). See also Marriage of Lieb, 80 Cal.App.3d 629, 145 Cal. Rpt......
  • Hammonds v. Hammonds, 92-CA-01313
    • United States
    • Mississippi Supreme Court
    • August 18, 1994
    ...was cohabiting with another man would have to demonstrate to court substantially decreased need of the wife); accord Wight v. Wight, 168 W.Va. 334, 284 S.E.2d 625 (1981); Bentzoni v. Bentzoni, 442 So.2d 235 (Fla.App. 5 Dist.1983); Richardson v. Richardson, 598 S.W.2d 791 (Tenn.App.1980); Pa......
  • Judith R. v. Hey
    • United States
    • West Virginia Supreme Court
    • July 26, 1990
    ...changed, "as the altered circumstances or needs of the parties may render necessary to meet the ends of justice." Id. In Wight v. Wight, 168 W.Va. 334, 284 S.E.2d 625 (1981) appellant made the argument that the appellee's cohabitation with another man should relieve the appellant from the o......
  • Dalton v. Dalton
    • United States
    • West Virginia Supreme Court
    • July 11, 2000
    ...of justice the factors to be considered in determining whether an alimony award should be modified." Wight v. Wight, 168 W.Va. 334, 337, 284 S.E.2d 625, 626-27 (1981) (citations omitted). We find no reason to distinguish between cohabitation with a third person and cohabitation with the obl......
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