Woods v. Guerra, 20724

Decision Date16 July 1992
Docket NumberNo. 20724,20724
Citation187 W.Va. 487,419 S.E.2d 900
CourtWest Virginia Supreme Court
PartiesCarl Gary WOODS, Plaintiff Below, Appellee, v. Rosemary GUERRA, Appellant Below, Defendant.

Syllabus by the Court

1. " ' "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." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).' Syllabus, Luff v. Luff, W.Va. , 329 S.E.2d 100 (1985)." Syl.Pt. 8, Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990).

2. "The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments." Syl.Pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

Harry A. Smith, I, Elkins, for appellee.

Rudolph L. DiTrapano, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for appellant.

PER CURIAM:

This is an appeal by Rosemary Guerra Salcedo from a final order of the Circuit Court of Randolph County which "amended" a January 18, 1978, divorce order regarding alimony to be paid to the appellant by her former husband, appellee Carl Gary Woods. The appellant contends that the lower court erred by so "amending" and by inappropriately calculating the credits to which each party is entitled for the sale of marital property. We agree with the appellant's contentions regarding the amendment of the alimony order and reverse the decision of the Circuit Court of Randolph County to the extent that it "amended" the January 18, 1978, divorce order. We find no clear error in the calculation of credits and therefore affirm the lower court's decision in that regard.

I.

Subsequent to their March 21, 1972, marriage, the appellant and the appellee purchased two tracts of real estate located in Elkins, West Virginia, including three homes situated upon these lots. The purchase agreement provided for a $2,000 down payment with $48,000 to be paid over a period of twenty years at six and one-half percent interest. The parties separated in October 1976, and the appellant assumed the payments from November 1976 to the present.

On January 18, 1978, a divorce was granted. The order provided that Mr. Woods was responsible for several outstanding debts and provided the following with regard to alimony requirements:

It is further ORDERED that the said Carl Gary Woods shall pay to Rosemary Woods under the name of Rosemary Guerra, at her home address which is 201 Eleventh Street, Elkins, West Virginia, the sum of Five Hundred Dollars ($500.00) per month as alimony until further Order of the Court, the first payment to be made on the 1st day of February, 1978.

On May 1, 1978, a hearing was held on the appellant's motion for contempt for Mr. Woods' failure to pay alimony and various other debts referenced in the January 18, 1978, order. During this hearing, the trial court determined that "the five hundred dollars [$500] a month would continue for a year from the date of entry of my Order of January, 1978, at which time we'll hold one more hearing in this matter, and we'll determine the question of alimony." The trial court further explained that the $500 monthly " 'will continue until January, 1979, at which time I'll entertain a motion for reduction or elimination of the alimony.' " No written order was entered reflecting the trial court's ruling. Moreover, no subsequent order regarding the reduction, elimination, or any modification of alimony was entered, and Mr. Woods never filed any motion to reduce or eliminate alimony.

Mr. Woods provided alimony for eleven months, paying a total of $5,500. On February 5, 1981, Mr. Woods filed a complaint seeking to have the marital property sold, rather than partitioned in kind. The appellant, who had resided in one of the houses, answered the complaint and filed a counterclaim seeking alimony, attorney fees, and other obligations that Mr. Woods had failed to pay, as required by the January 18, 1978, order.

On May 24, 1982, Mr. Woods moved for an order appointing special commissioners to sell the real estate, and a sale was subsequently scheduled for August 21, 1982. The appellant was the highest bidder at $90,000. The appellant then remarried in March 1984 and refused to pay the $90,000, apparently due to Mr. Woods' failure to pay the alimony due to the appellant up to the date of her remarriage. On October 13, 1988, the appellant filed a motion for decretal judgment for past due alimony, attorney fees, and expenses. In response, Mr. Woods moved to have the January 18, 1978, order amended and corrected, pursuant to Rule 60(a) of the West Virginia Rules of Civil Procedure, contending that the trial court intended the alimony ordered on January 18, 1978, to continue for only one year.

A hearing on the pending motions was held on January 22, 1990, and the court entered a May 24, 1990, order holding that "the order of January 18, 1978, incorrectly reflects the Court's ruling as to alimony, the Court being satisfied that its ruling was, in fact, that Defendant be awarded $500.00 per month as alimony for a period of one year, commencing February 1, 1978." 1 The lower court further held that the appellant would be entitled to any credits from November 1976 through August 21, 1982. Mr. Woods would be entitled to a credit from the sale of an amount equal to the rental value of the premises occupied by the appellant from January 18, 1978, through August 21, 1982. Counsel for the parties were ordered to calculate the credit claimed.

By order of June 17, 1991, the lower court held that Mr. Woods was entitled to a credit against the sale price of $13,750, and the appellant was entitled to a credit of $7,485.43. The appellant now appeals both the issue of past due alimony and the calculation of the credits.

II.

The appellant contends that the lower court erred in employing Rule 60(a) of the West Virginia Rules of Civil Procedure to eliminate six years of accumulated alimony and in denying her motion for decretal judgment on the accrued alimony. The appellant further contends that because the original January 18, 1978, order imposed a $500 per month requirement of alimony for an indefinite period, she is entitled to alimony for the seventy-four months between February 1978 and March 1984, the month of her remarriage. 2 With a reduction of $5,500 already paid by Mr. Woods during that interval, the past due alimony claimed by the appellant totals $31,500.

Rule 60(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, as follows:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

In addressing the application of Rule 60(a), the following is explained in 11 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2854 at 149 (1973):

Subdivision (a) deals solely with the correction of errors that properly may be described as clerical or as arising from...

To continue reading

Request your trial
4 cases
  • Carter v. Carter, 23253
    • United States
    • Supreme Court of West Virginia
    • November 18, 1996
    ...or child support installments.' Syl. pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). See syl. pt. 2, Woods v. Guerra, 187 W.Va. 487, 419 S.E.2d 900 (1992); syl. pt. 3, Lauderback, supra; syl. pt. 5, Moss v. Bonnell, 186 W.Va. 301, 412 S.E.2d 495 (1991); syl. pt. 2, Hudson, supra;......
  • Johnson v. Nedeff, 22236
    • United States
    • Supreme Court of West Virginia
    • November 18, 1994
    ...Appellant's attempt to apply this rule to the facts of this case is beyond the language and scope of the rule. In Woods v. Guerra, 187 W.Va. 487, 419 S.E.2d 900 (1992), we In addressing the application of Rule 60(a), the following is explained in 11 Charles A. Wright and Arthur R. Miller, F......
  • Savage v. Booth, 22876
    • United States
    • Supreme Court of West Virginia
    • February 14, 1996
    ...' "are to be corrected by a motion under Rules 59(e) or 60(b)." ' " 192 W.Va. at 265, 452 S.E.2d at 68, quoting Woods v. Guerra, 187 W.Va. 487, 489, 419 S.E.2d 900, 902 (1992), quoting Charles A. Wright and Arthur R. Miller, In Johnson, 192 W.Va. at 265, 452 S.E.2d at 68, we also quoted Ste......
  • Corcoran v. Corcoran, 24488.
    • United States
    • Supreme Court of West Virginia
    • May 8, 1998
    ...v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). In accord, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993); Woods v. Guerra, 187 W.Va. 487, 419 S.E.2d 900 (1992); Lauderback v. Wadsworth, 187 W.Va. 104, 416 S.E.2d 62 (1992). This, of course, is subject to the provisions of Rule 29......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT