Woods v. Guerra, No. 20724

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 187 W.Va. 487,419 S.E.2d 900
• Parties: Carl Gary WOODS, Plaintiff Below, Appellee, v. Rosemary GUERRA, Appellant Below, Defendant.
• Docket Number: No. 20724
• Decision Date: 16 July 1992

Page 900

419 S.E.2d 900 187 W.Va. 487 Carl Gary WOODS, Plaintiff Below, Appellee,
v.
Rosemary GUERRA, Appellant Below, Defendant. No. 20724. Supreme Court of Appeals of
West Virginia. Submitted May 5, 1992.
Decided July 16, 1992. 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

Page 901

[187 W.Va. 488] 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...