Marsh v. Marsh

395 S.E.2d 523, 183 W. Va. 279, 1990 W. Va. LEXIS 122
CourtWest Virginia Supreme Court
DecidedJuly 16, 1990
DocketNo. 19269
StatusPublished
Cited by2 cases

This text of 395 S.E.2d 523 (Marsh v. Marsh) 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
Marsh v. Marsh, 395 S.E.2d 523, 183 W. Va. 279, 1990 W. Va. LEXIS 122 (W. Va. 1990).

Opinion

PER CURIAM:

The principal issue in this appeal by the appellant, Kenneth S. Marsh, is whether the Circuit Court of Harrison County erred in ordering the reduction in child support payments to commence on October 1, 1988, rather than on June 3, 1987, the date the petition was filed, or on December 10,1987, the date of the last hearing. The appellant also contends that the circuit court erred in granting the appellee, Bonnie L. Marsh, a judgment for arrearages in child support and alimony in the amount of $7,000, and in approving the family law master’s recommended decision which was not issued within ten days following the close of the evidence as required by W.Va.Code, 48A-4-4(b) [1986].1 We find no reversible error, [281]*281and accordingly, the decision of the circuit court is affirmed.

The parties were married on September 21, 1974. The parties, upon their agreement to separate, entered into a property and separation agreement on January 22, 1985. Pursuant to that agreement, the appellant was required to pay the appellee child support in the amount of $1,000.00 per month and alimony in the amount of $200.00 per month. Custody of the parties’ two children was awarded to the appellee. The final divorce decree, which incorporated within it the property and separation agreement, was entered on March 21,1986.

On June 3, 1987, the appellant filed a petition requesting that his child support payments be reduced and that his obligation to pay alimony be terminated. The appellant contended that his income had decreased as a result of his unemployment and that he was only receiving unemployment compensation in the amount of $175.00 per week. Hearings were conducted before the family law master on July 6, 1987, October 5, 1987, November 9, 1987 and December 10, 1987.

Evidence taken at the hearing showed that, at the time the parties entered into the property and separation agreement, the appellant was employed by Union Carbide and was earning a salary of approximately $28,000.00 per year. The appellant ceased employment with Union Carbide in May of 1985, and began receiving unemployment compensation in the amount of $900.00 per month. The appellant stated that he next became employed in September of 1985 by Georgia Pacific in Palaka, Florida, at a salary of $32,000 per year. He worked for Georgia Pacific until May of 1987 and again began receiving unemployment compensation from the State of Florida in the amount of $175.00 per week. At this time, the appellant discontinued his child support and alimony payments to the appellee.2 The appellant subsequently became employed by Precision Industries in September of 1987, at a salary of $2,000.00 per month.3

The appellee testified at the December 10, 1987, hearing that she had obtained employment with Arco Chemical Company with a net income per month of $2,065.00. She further testified that the expenses she incurs per month exceed $3,600.00.

The family law master issued a recommended decision dated September 19, 1988. In that decision, the family law master recommended that the appellant’s child support payments be reduced from $1,000 per month to $510.00 per month beginning on October 1, 1988, and that the appellant owed the appellee the amount of $7,000 for arrearages in child support and alimony payments.4 The circuit court entered an order on December 16, 1988, setting forth the findings and conclusions of the family law master.

The key issue in this appeal is whether the circuit court erred in ordering the reduction in child support to commence on October 1, 1988. The appellant contends that the circuit court should have ordered the reduction to begin on either June 3, 1987, the date the petition was filed, or on December 10, 1987, the date of the last hearing. The circuit court declined to enter a nunc pro tunc order because it believed the order would be contrary to the holding of this Court in Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).5

[282]*282We find no merit in the appellant’s argument that the reduction in child support should commence on either June 3, 1987, the date the petition was filed, or on December 10, 1987, the date of the last hearing, rather than on October 1, 1988. There is no statute or rule which specifies the time in which a reduction or increase in child support should commence. Although the authority of the circuit court to modify child support awards is prospective only and does not apply to arrearages, the determination as to the time in which the reduction in payments should take effect is otherwise within the sound discretion of the court as we stated in syllabus point 2 of Whittaker v. Whittaker, supra:

“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 Point 2, Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785 (1987).

Other courts have also held that the trial court may exercise its discretion in determining the effective date of a modification of an award of child support. See, e.g., Murphy v. Murphy, 491 So.2d 978 (Ala.Civ. App.1986); In re Marriage of McDavid, 97 Ill.App.3d 1044, 54 Ill.Dec. 577, 425 N.E.2d 442 (1981); Kruse v. Kruse, 464 N.E.2d 934 (Ind.App.1984); In re Marriage of Stanley, 411 N.W.2d 698 (Iowa App.1987); Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400 (1988); Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145 (1968).

Furthermore, among the many factors considered by courts in determining the effective date of a modification of child support payments are the following: (1) a demonstration by the mother that the need for additional support was present at the time of the filing, Friedman v. Friedman, 307 So.2d 926 (Fla.App.1975); (2) a showing that a reduction in child support payments made effective at the time of the filing of the motion would place upon the mother a heavy burden of repayment, Davidson v. Davidson, 786 S.W.2d 186 (Mo.App.1990); (3)a party’s deliberate attempt to slow down or delay the hearing, In re Marriage of D.M.S., 648 S.W.2d 609 (Mo.App.1983); and (4) a disability of a father subsequent to the divorce decree and the resulting entitlement to social security, Matter of Marriage of Cope, 49 Or.App. 301, 619 P.2d 883 (1980).

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Bluebook (online)
395 S.E.2d 523, 183 W. Va. 279, 1990 W. Va. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-marsh-wva-1990.