Adkins v. Adkins

540 S.E.2d 581, 208 W. Va. 364, 2000 W. Va. LEXIS 110
CourtWest Virginia Supreme Court
DecidedOctober 27, 2000
DocketNo. 27619
StatusPublished
Cited by4 cases

This text of 540 S.E.2d 581 (Adkins v. Adkins) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adkins v. Adkins, 540 S.E.2d 581, 208 W. Va. 364, 2000 W. Va. LEXIS 110 (W. Va. 2000).

Opinion

PER CURIAM:

This ease is before us on appeal of a final order of the Circuit Court of Cabell County, entered on March 29,1999. The order of the circuit court made findings of fact and conclusions of law that were contrary to the findings of fact and conclusions of law recommended by the family law master. The appellant, Carlis Adkins (“appellant”), contends that the circuit court erred in rejecting the family law master’s recommended order, and that the circuit court erred in holding that the appellant was required to continue making alimony payments. Following our review of the record and applicable law, we find that the circuit court erred. We therefore reverse the order of the circuit court and remand this case for entry of an order in conformity with this opinion.

I.

The appellant and Thelma Adkins (“appel-lee”), were married on July 20, 1959, and were divorced in Cabell County, West Virginia, on October 2, 1986. Pursuant to the parties’ divorce order, the appellant was ordered to pay $300.00 per month for alimony and $217.96 per month for the appellee’s mortgage. Additionally, upon the appellant’s retirement, the appellee was to receive one-half of the appellant’s pension.

After obtaining the divorce, the appellant remarried and had a child with his new wife.

The appellant was employed as a nursing assistant at a veteran’s hospital and, after 41 years of employment at the hospital, retired in 1997. The appellant testified before the family law master that he was asked by his supervisors to take an early retirement1 due to downsizing. Upon his retirement, the appellant received a lump payment of approximately $16,000.00 of which he applied $6,000.00 toward debts; he also purchased a certificate of deposit for $10,000.00. In addition to this lump sum payment, the appellant began to draw a monthly pension of $810.83. From his share of his pension, the appellant continued to pay the $300.00 a month in alimony and $217.96 a month for the appel-lee’s mortgage, leaving the appellant with $292.87 a month.

The appellee is unemployed and has suffered for years from various medical conditions. It was noted by the circuit court that due to her condition the appellee might be eligible for social security disability and/or supplemental security income and related benefits; however, the appellee has chosen not to apply for these benefits.2

The appellee, in addition to receiving the $300.00 a month alimony and $218.00 mortgage payment, also began receiving $575.00 a month as her share of the appellant’s pension fund. Therefore, following the appellant’s retirement, the appellee was receiving a total of $1,093.00 monthly from the appellant, and the appellant was retaining but $293.00 monthly from his retirement funds.

The appellant filed a petition to modify the previously awarded alimony, contending that there had been a substantial change in circumstances. On July 29,1997, a hearing was conducted before the family law master on the appellant’s motion. After listening to testimony and reviewing the record, the family law master determined that there had been a substantial change of circumstances due to the appellant’s retirement. The family law master, therefore, recommended that [367]*367the appellant’s alimony payment of $300.00 per month should be terminated. The family law master further recommended that the appellant should continue to make the full monthly mortgage payment of $218.00, with one-half of the mortgage payment being the appellant’s responsibility pursuant to the original divorce order, and the other half being paid by the appellant to the appellee as “incident to alimony.” Under the family law master’s recommendation, the appellant’s and appellee’s incomes would be closer to equal.

The appellee filed a petition of Objections and Exceptions with the Circuit Court of Cabell County. Following a review of the record, the circuit court judge determined that the family law master had committed error and found that the original $300.00 monthly alimony award was contractual, and thus not subject to modification. By order dated March 29, 1999, the circuit court ordered that the appellant continue to make the $300.00 a month alimony payment, that the appellant pay an additional $100.00 a month to satisfy any arrearages,3 and further ordered that the appellant pay $1,500.00 for the appellee’s attorney fees. It is from this order that the appellant appeals.

II.

We have previously set forth the standard that a circuit court should employ when reviewing a recommended order of a family law master.

A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard.

Syllabus Point 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995). Stephen L.H. requires that substantial deference be given to the factual findings and recommendations of the family law master, if these findings and recommendations are supported by the record and are based on an appropriate application of the law. See Banker v. Banker, 196 W.Va. 535, 540-541, 474 S.E.2d 465, 470-471 (1996).

The authority of a circuit court to modify alimony is contained in W. Va.Code, 48-2-15 [1999], that provides, in pertinent part:

(e) After the entry of an order pursuant to the provisions of this section, the court may revise the order concerning the maintenance of the parties and enter a new order concerning the same, as the circumstances of the parties may require.

We have stated that “the primary standard to determine whether or not a trial court should modify an order awarding alimony is a substantial change of circumstances.” Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 664, 671 (1983). We have placed the burden of showing a substantial change of circumstances on the party petitioning for modification of the alimony award. Syllabus Point 3, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). To determine if there has been a substantial change of circumstances, the circuit court must “consider the financial needs of the parties, their incomes and income earning abilities and their estates and the income produced by their estates in determining the amount of alimony to be awarded in a modification proceeding.” Syllabus Point 2, in part, Yanero v. Yanero, 171 W.Va. 88, 297 S.E.2d 863 (1982).

In reviewing the present case, this Court finds that the family law master correctly held that there had been a substantial change of circumstances. The record reveals that, following his retirement, the appellant’s monthly income went from $2,083.00 to $810.00, from which the appellant was expected to pay $518.00 ($300.00 alimony and $218.00 mortgage) a month to the appellee, leaving the appellant with $292.87 a month. Conversely, after the appellant’s retirement, the appellee’s monthly “income” went from $518.00 to $1,093.00. Following Yanero, supra, and Goff, supra,

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Bluebook (online)
540 S.E.2d 581, 208 W. Va. 364, 2000 W. Va. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkins-v-adkins-wva-2000.