Hickman v. Hickman

558 S.E.2d 607, 210 W. Va. 608, 2001 W. Va. LEXIS 106
West Virginia Supreme Court·Decided October 26, 2001·No. 29331·Published·Cited by 4 cases

Opinion

PER CURIAM.

Karen Joyce Hickman, appellant/defendant below (hereinafter referred to as “Ms. Hickman”), appeals from an order of the Circuit Court of Kanawha County which modified her divorce decree. The modification order reduced her monthly child support payment, terminated alimony and terminated the payment of health insurance premiums made by Ms. Hickman’s former spouse, Edison R. Hickman, II, appel-lee/plaintiff below (hereinafter referred to as “Mr. Hickman”). In addition, the order required Ms. Hickman pay to Mr. Hickman approximately $18,131.40 for “overpayments” made during the pendency of the modification proceedings. Here, Ms. Hickman requests this Court to reinstate the terms of the divorce decree. Alternatively, Ms. Hickman asserts that the trial court abused its discretion by imposing a retroactive judgment of $18,131.40 as “overpayments” against her. Based upon the parties’ arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm, in part, and reverse, in part, the decision of the Circuit Court of Kanawha County, and remand the case for further proceedings.

I.

FACTUAL AND PROCEDURAL HISTORY

The parties were married on May 20,1990, in Giles County, Virginia. At the time of the marriage, Ms. Hickman had a daughter who was bom out of wedlock on January 6, 1988. Mr. Hickman adopted the child after the parties married. During their marriage, the parties lived in Kanawha County, West Virginia. Mr. Hickman was employed by E.I. Dupont de Nemours, Inc., in Belle, West Virginia. Ms. Hickman was a homemaker and was not employed outside the home, primarily because of the special care she had to provide to the parties’ daughter. Their *610 daughter was diagnosed as suffering from a muscle disease called hypotonic diplegia.

In October of 1994, Mi’. Hickman filed for divorce. On February 25, 1997, the family law master submitted a recommended order. The relevant factors of the recommended order were that the parties be divorced, that Mr. Hickman pay child support, 1 alimony 2 and premiums for Ms. Hickman’s medical insurance coverage. 3 Mr. Hickman filed exceptions to the recommended order. The circuit court denied the exceptions. By order entered July 22, 1998, the circuit court adopted the family law master’s recommended order. 4

On August 6, 1998, Mr. Hickman filed for a modification of the divorce decree based upon a reduction of income due to his retirement on July 30, 1998. During the modification hearings, Mr. Hickman presented evidence from the treating physician of the parties’ daughter. The daughter’s physician opined that the child was developing normally and no longer needed special care from her mother. The family law master submitted a recommended order requiring the sale of the parties’ residence, a reduction in child support, the termination of alimony and the termination of premium payments for Ms. Hickman’s health insurance.

On August 18, 2000, the circuit court entered an order adopting the family law master’s recommendation, except as to the sale of the parties’ residence. The circuit court made its order retroactive to the date Mr. Hickman filed for modification of the final divorce decree. Consequently, judgment was rendered against Ms. Hickman for the “overpayment” of child support, alimony and insurance premiums. The “overpayment” totaled approximately $18,131.40. It is from this order that Ms. Hickman now appeals.

II.

STANDARD OF REVIEW

Ms. Hickman appeals from the rulings in the circuit court’s order that adopted the recommendations of the family law master. 5 In appeals involving domestic relations matters, we employ a three-pronged standard of review established in Syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

This Court has also held that “[qjuestions 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).

III.

DISCUSSION

A. Modification. Ms. Hickman contends that there was no basis for the trial court to modify the divorce decree. Our cases have held that a trial court may modify a divorce decree when there has been a substantial change of circumstances which warranted a modification. See Price v. Price, 205 W.Va. 252, 257, 517 S.E.2d 485, 490 (1999); Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 664, 671 (1983). Based upon *611 the record below, we find that a substantial change of circumstances was shown to permit a modification of the divorce decree.

When Mr. Hickman filed for divorce, he was employed and had a monthly net income of approximately $2,460.78. The divorce decree required Mr. Hickman to pay approximately $1,677.14 a month as alimony, child support and other expenses. At the time of the modification hearing, Mr. Hickman was retired and had a monthly net income of $1,573.67. Based upon Mr. Hickman’s monthly retirement income, his obligations under the divorce decree exceeded his monthly retirement income.

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Hickman v. Hickman, 558 S.E.2d 607, 210 W. Va. 608, 2001 W. Va. LEXIS 106 (W. Va. 2001).

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