Romano v. Greve

724 S.E.2d 331, 228 W. Va. 727, 2012 WL 602896, 2012 W. Va. LEXIS 79
CourtWest Virginia Supreme Court
DecidedFebruary 23, 2012
DocketNo. 11-0679
StatusPublished

This text of 724 S.E.2d 331 (Romano v. Greve) 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
Romano v. Greve, 724 S.E.2d 331, 228 W. Va. 727, 2012 WL 602896, 2012 W. Va. LEXIS 79 (W. Va. 2012).

Opinion

PER CURIAM:

The petitioner herein and respondent below, Shawn Romano (“Mr. Romano”), appeals from an order entered November 19, 2010, by the Circuit Court of Kanawha County. By that order, the circuit court ruled that (1) the record of the family court proceedings contained no factual basis to indicate that the parties had agreed to deviate from the child support guidelines in their calculation of child support; (2) the record also failed to evidence an agreement of the parties to calculate their incomes without the use of income averaging; and (3) the family court did not err in ruling that the 2009 child support modifications were retroactive to April 1, 2009.1 On appeal to this Court, Mr. Romano challenges each of these rulings. Upon a [730]*730review of the parties’ arguments, the record designated for appellate consideration, and the pertinent authorities, we affirm, in part, and reverse, in part, the lower court’s order and remand this matter for further proceedings. We affirm that portion of the circuit court’s order that upheld the April 1, 2009, commencement date for the 2009 child support modifications. We reverse the remainder of the circuit court's order that found that the parties had not indicated their intent to deviate from the child support guidelines or to specify the manner in which their support obligations would be calculated. Finally, we remand this case for further proceedings consistent with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Romano and Wendy Greve, the respondent herein and petitioner below (“Ms. Greve”), were married, and two children were born of the marriage. In 2005, Mr. Romano and Ms. Greve were divorced. At the time of their divorce, the parties agreed to share custody of their minor children, with each parent receiving equal custodial time. Both Mr. Romano and Ms. Greve are attorneys, and each of their incomes fluctuates from year to year. In consideration of these fluctuations, the parties agreed to deviate from the child support guidelines 2 in calculating each party’s child support obligation.

By order entered October 30, 2006, concerning the modification of child support,3 the family court noted that “the parties announced to the Court [that] the parties had settled, compromised, and agreed upon all issues pertaining to the modification of child support in this matter.” The family court observed further that

[b]oth parties’ incomes fluctuate. Accordingly, the Court finds that the parties’ agreement as set forth below which determines the manner and method of establishing child support is fair and equitable and is in the best interests of the parties’ minor children. In addition, the Court finds that, in entering into such agreement, the parties have made a knowing, intelligent and voluntary waiver of the strict application of the West Virginia Child Support formula.

Finally, the family court detailed precisely how child support would be calculated:

On or before February 15, 2007[,] and on February 15 of each subsequent year, the parties shall exchange all pertinent financial information, including W-2s, K-ls, 1099s, quarterly documents, and any other financial documents which reflect income earned by the parties in 2006.
After such exchange of data, Respondent’s [Mr. Romano’s] (or Petitioner’s [Ms. Greve’s], as the case may be) child support obligation for 2007, using the Guidelines for Child Support Awards promulgated as W. Va.Code § 48-13-101, shall be calculated based upon the parties’ respective incomes for 2006. The formula shall include an appropriate adjustment for child care expenses and for health insurance; however, no other adjustments shall be included in the calculation. Once that number is determined, that number shall be the fixed amount of child support for the year 2007, and will not be subject to modification, retroactive or otherwise, for the year 2007.
Until further Order of the Court, the parties shall in subsequent years calculate child support in accordance with this method. Each year the parties shall submit an Agreed Order noting any applicable modification. If there be any disagreement regarding the calculation, either par,ty may schedule a hearing with the Court.

(Emphasis added).

After the entry of this order, Mr. Romano moved for an order to establish the parties’ [731]*731child support obligations for 2007 and 2008. By order entered December 23, 2008, the family court calculated the parties’ support obligations for 2007, 2008, and 2009, until further modified by the court. The family court also adopted the parties’ further agreement to establish the date by which a moving party must file a motion to modify child support, with supporting financial documentation, and the effective date of such a modification: “[B]y agreement of the parties, a motion to modify child support which is filed with the requisite financial disclosures, including without limitation, W-2’s [sic], complete 1040’s [sic] and K-l’s [sic] before March 31, 2009, shall be retroactive in effect to January 1, 2009.”

Thereafter, on March 26, 2009, Mr. Romano filed a motion for modification of child support regarding his 2009 support obligation, claiming that his 2008 support obligation had been based upon his prior year’s income which had been artificially inflated by a substantial award received by his law firm which has not recurred. Also on March 26, 2009, Mr. Romano sent Ms. Greve a copy of his K-l document for the 2008 tax year. Mr. Romano then sent Ms. Greve a copy of his completed tax return on April 15, 2009, stating that his delay in doing so was beyond his control and was occasioned by his investment account administrator and his accountant. By order entered January 28, 2010, the family court found as follows:

The Court finds and concludes that W. Va.Code § 48-13-702 authorizes a court to disregard the child support guidelines if the court finds that the guidelines are inappropriate in a specific case, provided that the reason for the deviation is stated on the record or set forth in the Order.
The Court finds and concludes that in 2006 the parties knowingly and voluntarily agreed to deviate from the application of the child support guidelines in order to accommodate their financial circumstances. Both parties, who are attorneys, and who were represented by attorneys, agreed upon a methodology to be used in calculating their respective child support obligations in that and subsequent years.
The Court finds that the methodology agreed upon by the parties was approved by the Court, set forth in writing in the 2006 Order Regarding Modification of Child Support, and that such Order states adequately the reasons for deviating from the strict application of the child support guidelines.
The Court further finds that neither party should be permitted to unilaterally alter the agreed-upon methodology when doing so would benefit that party in any given year.[4]
The Court further finds that Respondent [Mr. Romano] did not disclose his income tax return on or before March 31, 2009. Accordingly, based upon the language of the Final Order

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Bluebook (online)
724 S.E.2d 331, 228 W. Va. 727, 2012 WL 602896, 2012 W. Va. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romano-v-greve-wva-2012.