Zirkle v. Zirkle

• Decision Date: 22 June 1983
• Docket Number: No. 15610,15610
• Citation: 172 W.Va. 211,304 S.E.2d 664
• Parties: Thomas I. ZIRKLE v. Janice P. ZIRKLE.
• Court: West Virginia Supreme Court

Page 664

304 S.E.2d 664

172 W.Va. 211

Thomas I. ZIRKLE v. Janice P. ZIRKLE.

No. 15610.

Supreme Court of Appeals of West Virginia.

June 22, 1983.

Syllabus by the Court

1. Absent a court order, augmented black lung benefits received by an ex-spouse pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq., and 20 C.F.R. §§ 725 et seq., after an alimony award has been ordered by a court, which court did not consider such benefits, may not be deducted from an alimony obligation by the ex-spouse ordered to pay such alimony.

2. Arrearages of alimony, per se, is not a sufficient ground for a court to refuse to consider a petition for modification of alimony unless the court determines that the ex-spouse had the ability to comply with the order awarding alimony and the failure to pay the arrearages was contumacious, or willful or intentional or otherwise in contempt of court.

Jay Montgomery Brown, Fairmont, for appellant.

Dennis H. Curry, Fairmont, for appellee.

McHUGH, Justice:

This action is before this Court upon the appeal of Thomas I. Zirkle, appellant and plaintiff below, from an order of the Circuit Court of Marion County wherein appellant was ordered to pay to Janice P. Zirkle, appellee and defendant below, alimony in the amount of $150.00 per month and arrearages in the amount of $2,664.70. In addition, appellant appeals from a subsequent order of the Circuit Court of Marion County denying his petition for modification of the alimony award. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

On March 18, 1980, appellant and appellee were granted a divorce by the Circuit Court of Marion County upon the ground of irreconcilable differences. ¹ In the same order, appellant was ordered to pay appellee alimony in the amount of $150.00 per month.

In March, 1980, after the alimony order was entered, appellant successfully prosecuted a claim with the United States Department of Labor for black lung benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq. ² On June 13, 1980, the appellee contacted the United States Department of Labor and applied for augmented black lung benefits based upon her dependency on appellant, such benefits to be received in a monthly check separate from the benefits of appellant. ³ Appellee's application was granted and on September 8, 1980, the parties began receiving their respective checks, the appellant receiving monthly benefits in the amount of $254.00 and appellee receiving a monthly check in the amount of $127.00. The parties also received checks for accrued benefits equal to ten times their monthly entitlement.

The record indicates that on July 24, 1980, appellant was contacted by a representative of the United States Department of Labor and was informed that appellee had applied for augmented benefits and asked whether he would agree to the payment of the benefits in a separate check. On a Department of Labor form, the notation of the caller indicates that the appellant agreed to such an arrangement but only if he could deduct the amount appellee would receive from his monthly alimony payment. A note also appears that appellant was told by the representative of the Department of Labor that he could, in fact, deduct the benefits received by his ex-wife from his monthly alimony obligation and that he would only be required to pay appellee the difference between the benefits and the alimony payment which amounted to $23.00 per month.

In September, 1980, there was an exchange of correspondence between counsel for the parties wherein appellee requested appellant to continue to pay the full amount of alimony in addition to the augmented black lung benefits she was receiving. Appellant declined the request and continued to pay appellee only the difference between the augmented black lung benefits and the alimony payment.

Approximately one year later, on September 14, 1981, a hearing was held in the Circuit Court of Marion County upon the motion of appellee seeking modification of the original alimony award and to compel appellant to bring all arrears up to date. In a letter to the parties dated March 4, 1982, the trial court maintained the amount of the alimony award but ordered appellant to pay all arrearages because appellant could not "satisfy his support and maintenance obligations through Black Lung payments to his ex-wife."

After the receipt of the letter, appellant petitioned the Circuit Court of Marion County for modification of the alimony award claiming that appellee's receipt of augmented black lung benefits constituted a sufficient change of circumstances. In an order entered June 11, 1982, the trial court ordered appellant to continue the payment of $150.00 per month as alimony and to pay arrearages in the amount of $2,664.70. In a second order dated June 17, 1982, the trial court denied appellant's petition for modification of alimony because appellant did not have "clean hands" due to his arrearage in alimony payments.

Appellant assigns the following errors: (1) the trial court erred when it held that appellant was not entitled to deduct from his alimony payment the amount of augmented black lung benefits appellee was receiving from the United States Department of Labor, and (2) the trial court erred in denying his petition for modification of alimony based upon the equitable doctrine of "clean hands."

I

Appellant argues that but for the divorce order, appellee would not be entitled to augmented black lung benefits, and in any event, appellee is only entitled to support equal to the amount of the monthly alimony award. He, therefore, should be able to deduct appellee's receipt of such benefits from his monthly alimony obligation without a court order.

In West Virginia, the authority of a trial court to award or modify alimony, child support and child custody in a divorce proceeding is found in W.Va.Code, 48-2-15 [1980], which provides, in pertinent 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 upon ordering the annulment of a marriage, or a divorce, the court may make such further order as it shall deem expedient, concerning the care, custody, education and maintenance of the minor children, and may determine with which of the parents or other proper person or persons the children or any of them, may remain; 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....

In construing this statute, this Court has consistently held that the authority to award or modify the amount of an alimony decree is within the sound discretion of the trial court and, consequently, will not be disturbed unless there is a clear abuse of discretion. Shannon v. Shannon, 165 W.Va. 662, 270 S.E.2d 785 (1980); Waller v. Waller, 166 W.Va. 142, 272 S.E.2d 671 (1980). However, the authority of the trial court to modify an alimony award is only prospective in nature and does not extend to arrearages. Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889 (1940); Biggs v. Biggs, 117 W.Va. 471, 185 S.E. 857 (1936).

A predecessor to W.Va.Code, 48-2-15 [1980], was discussed in Biggs v. Biggs, supra, where this Court reversed a ruling by the Circuit Court of Wood County which had relieved an ex-husband of the duty to pay accrued alimony installments because the ex-husband had discovered new evidence of the ex-wife's marital misconduct. This Court held that:

Code ..., [48-2-15], ... authorizing a trial court, after awarding alimony, to revise or alter such allowance or make a new decree concerning the same, 'as the altered circumstances or needs of the parties may render necessary to meet the ends of justice,' pertains to future installments of alimony and does not authorize cancellation of accrued installments. The latter may be cancelled only on such ground as would warrant a court of equity in setting aside a decree because of fraud or other judicially cognizable and harmful circumstances in procuring the decree.

Syllabus, Biggs v. Biggs, supra.

Similarly, this rule has been applied to arrearages of child support. As this Court held in the syllabus in Hopkins v. Yarbrough, 168 W.Va. 480, 284 S.E.2d 907 (1981):

In the absence of fraud or other judicially cognizable and harmful circumstance in the procurement of a decree for child support, a circuit court is without authority to modify or cancel arrearages of a former husband's child support payments, which payments accrued prior to the date of the adoption of such children by the wife's subsequent husband. W.Va.Code, 48-4-5 [1969].

See also Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980); State ex rel. Canada v. Hatfield, 163 W.Va. 548, 258 S.E.2d 440 (1979); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963).

In the case now before us, we must determine whether the trial court erred when it held that appellant could not deduct the amount of appellee's augmented black lung benefits from his monthly alimony payments and ordered him to pay appellee accrued alimony in the amount of $2,664.70. Our research does not reveal any cases dealing with black lung benefits specifically, however, with respect to similar disability benefits other jurisdictions hold that the receipt of disability benefits may not be deducted from the support obligations of one ordered to pay such support.

In Cope and Cope, 49 Or.App. 301, 619 P.2d 883 (1980), the Court of Appeals of Oregon faced an issue analogous to the one before this Court. In Cope, an ex-husband had been ordered to pay a...