          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2015 Term
                                                                      FILED

                                                                   April 10, 2015

                                      No. 14-0429                  released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                                                     OF WEST VIRGINIA



                             CAROL ELAINE WARREN,

                             Respondent Below, Petitioner


                                           v.


                                TODD E. GARLAND,

                             Petitioner Below, Respondent




                   Appeal from the Circuit Court of Webster County

                             Honorable Jack Alsop, Judge

                              Civil Action No. 12-D-60


                REVERSED AND REMANDED WITH DIRECTIONS



                              Submitted: March 10, 2015

                                Filed: April 10, 2015




Brittany Ranson Stonestreet, Esq.                       James Wilson Douglas, Esq.
Lyne Ranson Law Offices, PLLC                           Jared S. Frame, Esq.
Charleston, West Virginia                               James Wilson Douglas, LC
Attorney for Carol Elaine Warren                        Sutton, West Virginia
                                                        Attorneys for Todd E. Garland


JUSTICE LOUGHRY delivered the Opinion of the Court.

CHIEF JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

                              SYLLABUS BY THE COURT




              1.     “In reviewing a final order entered by a circuit court judge upon a

review of, or upon a refusal to review, a final order of a family court judge, we review the

findings of fact made by the family court judge under the clearly erroneous standard, and the

application of law to the facts under an abuse of discretion standard. We review questions

of law de novo.” Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).



              2.     “Under the clearly erroneous standard, if the findings of fact and the

inferences drawn by a family [court judge] are supported by substantial evidence, such

findings and inferences may not be overturned even if a circuit court may be inclined to make

different findings or draw contrary inferences.” Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195

W.Va. 384, 465 S.E.2d 841 (1995).
LOUGHRY, Justice:

              The petitioner and respondent below, Carol Elaine Warren, appeals an order

of the Circuit Court of Webster County reversing a decision of the Family Court of Webster

County concerning the amount and duration of spousal support she was awarded in her

divorce from the respondent and petitioner below, Todd E. Garland. In this appeal, Ms.

Warren contends that the circuit court erred by finding that a future increase in her spousal

support award was impermissible and that such award should terminate in three years. Upon

consideration of the parties’ briefs and oral arguments, the submitted record, and the

pertinent authorities, we find that the circuit court erred in modifying the spousal support

award granted to Ms. Warren by the family court. Accordingly, the final order is reversed,

and this case is remanded with directions that the family court order be reinstated.



                         I. Factual and Procedural Background

              The parties were married on February 14, 1984, and they separated on February

17, 2012, after twenty-eight years of marriage.1 At the time of the parties’ divorce, Mr.

Garland was fifty-one years old and Ms. Warren was sixty-two years old. After the parties

separated, Ms. Warren’s mental health began to deteriorate due solely to the fact that her long

term marriage was ending. Suffering from severe depression, Ms. Warren began to have



       1
        The parties had no children together. They jointly raised Ms. Warren’s daughter from
her previous marriage from the ages of six to fifteen when she left their household.

                                              1

suicidal ideation. As a result, she was admitted to a psychiatric hospital on three separate

occasions between April 2012 and August 2012. Because of her depression, Ms. Warren

was unable to continue her employment with the Ohio Valley Environmental Coalition where

she worked as a project coordinator and lobbyist. She voluntarily elected to collect early

social security benefits at age sixty-two.2



                Mr. Garland filed a petition for divorce on June 21, 2012. At a temporary

hearing on September 20, 2012, Mr. Garland was ordered to pay Ms. Warren spousal support

in the amount of $350.00 per month beginning October 1, 2012. Subsequently, on January

24, 2013, a bifurcated divorce order was entered that incorporated the parties’ agreement on

all issues except for spousal support and attorney’s fees. The parties agreed to a distribution

of their marital assets that was close to “fifty-fifty,” with Mr. Garland assuming sixty to

sixty-five percent of the marital debt and being compensated as a result with a greater share

of the marital property, including the debt-free marital home and retirement benefits.



                The main source of contention between the parties was the spousal support

sought by Ms. Warren. Mr. Garland argued that Ms. Warren should return to work as she

had retired a few years prematurely at the age of sixty-two. When Ms. Warren was

employed, her monthly net income was approximately $2,350.00. Her income was reduced


       2
           Ms. Warren has not been determined to be disabled by any government entity.

                                              2

to $888.00 per month when she began collecting her social security benefits. Ms. Warren

submitted evidence reflecting monthly expenses averaging $2,662.58, although this amount

did not include the estimated cost of health insurance that she needed to obtain following the

divorce and her retirement. Mr. Garland, who is employed as Director of the Department of

Social Ministries for the Archdiocese of Wheeling-Charleston, reported a monthly net

income of $3,250.00. His monthly expenses were estimated to be $2,740.00. His biggest

expense was his monthly payment on the marital credit card debt, which he assumed, in the

amount of $750.00. Mr. Garland testified that the required monthly payment on the credit

card debt was only $250.00, but he was voluntarily paying an extra $500.00 each month in

order to reduce the balance as quickly as possible.3



              At the final evidentiary hearing in early 2013, Ms. Warren called her treating

psychologist, Dr. Lisa Ryan, and former boss, Janet Keating, as witnesses. Dr. Ryan testified

that Ms. Warren had been diagnosed with major depressive disorder and was unable to return

to work because of her mental health issues. She further testified that the stress of a job was

too much for Ms. Warren to cope with at that time. Ms. Keating testified that she began

noticing physical and emotional changes in Ms. Warren when the parties separated. She also

stated that she could not rehire Ms. Warren as she had employed someone else in her



       3
       The evidence in the record indicates that the credit card balance was almost
$9,000.00 at the time the parties separated.

                                              3

position. Finally, based on her own observations, Ms. Keating opined that Ms. Warren was

not mentally able to return to work.



              On March 5, 2013, the family court entered an order awarding spousal support

to Ms. Warren in the amount of $350.00 per month until she reaches the age of sixty-five.

The court further ordered:

              When [Ms. Warren] reaches age 65, a time at which the parties
              could have reasonably anticipated that she would retire in any
              event, the alimony should increase because at that time [Mr.
              Garland] will reasonably be anticipated to have reduced his
              monthly indebtedness assumed in the equitable distribution
              herein. In addition, he will have retired the award of attorney’s
              fees set forth below. The combination of the retirement of debt
              and attorney’s fees increases [Mr. Garland’s] excess net income
              from which an enhanced award of alimony can be made,
              particularly at a time when [Ms. Warren’s] income will only be
              Social Security benefits. At age 65, alimony should increase to
              $650.00 per month, and it should continue until [Mr. Garland]
              reaches his normal retirement age of 67, at which time alimony
              should terminate.4 (footnote supplied)



              With respect to the attorney’s fees requested by Ms. Warren, the family court

ordered Mr. Garland to pay her attorney $3,600.00 at the rate of $100.00 a month until the

amount was paid in full. In awarding this amount, the court considered Mr. Garland’s ability



       4
        The order also provided that the spousal support would terminate sooner if Ms.
Warren remarried, died, or became “involved in a relationship akin to marriage without the
formal recognition thereof.”

                                             4

to pay in light of the spousal support granted to Ms. Warren, as well as the disparity in the

parties’ incomes and the fact that the only issue litigated was spousal support. Following

entry of this order, Mr. Garland appealed the decision to the Circuit Court of Webster

County.



              On July 11, 2013, the circuit court entered an order reversing the decision of

the family court. The circuit court concluded that the increase of the spousal support award

to $650.00 per month when Ms. Warren turned sixty-five was improper pursuant to this

Court’s decision in Mayle v. Mayle, 229 W. Va. 179, 727 S.E.2d 855 (2012), because it was

solely based on speculation that Mr. Garland would have more income available at that time.

The circuit court further stated:

              [E]ven more perplexing is the finding of the Family Court that
              even though [Ms. Warren] will have reduced her medical
              expenses once she is eligible for Medicare, [Mr. Garland’s]
              spousal support obligation still almost doubles (from
              $350.00/month to $650.00/month) when [Ms. Warren] reaches
              the age of 65. In short, there is no correlative findings, however
              speculative, about the need of [Ms. Warren] when she turns 65
              years of age, nor is there any finding regarding her potential
              income, if any, at that point in time, as well.

The circuit court also found that the increase in Mr. Garland’s spousal support obligation

when Ms. Warren reaches the age of sixty-five, was as arbitrary and capricious as the

termination of that obligation when he reaches the age of sixty-seven. The circuit court

concluded that the future increase in the amount of the spousal support was a “preemptive


                                              5

modification without sufficient evidence” and set aside the award effective the first day of

the month following Ms. Warren’s sixty-fifth birthday.



                 As to the award of attorney’s fees, the circuit court found that the family court

had failed to consider all of the factors required by this Court’s decision in Banker v. Banker,

196 W.Va. 535, 474 S.E.2d 465 (1996).5 Thus, the circuit court set aside the attorney’s fees

award and remanded the case to the family court to complete the analysis required by Banker.

On October 7, 2013, the family court entered an order that once again granted an attorney’s

fees award of $3,600.00 to be paid by Mr. Garland under the same terms set forth in the

previous order but included an analysis of all of the Banker factors as directed by the circuit

court. On March 26, 2014, the circuit court entered its final order which stated that all issues

had been resolved, and the matter was now mature for consideration by this Court.

Thereafter, Ms. Warren filed her appeal.



       5
           Syllabus point four of Banker provides, in pertinent, part,

                 In determining whether to award attorney’s fees, the family
                 [court judge] should consider a wide array of factors including
                 the party’s ability to pay his or her own fee, the beneficial results
                 obtained by the attorney, the parties’ respective financial
                 conditions, the effect of the attorney’s fees on each party’s
                 standard of living, the degree of fault of either party making the
                 divorce action necessary, and the reasonableness of the
                 attorney’s fee request.

Id., 196 W.Va. at 538, 474 S.E.2d at 468.

                                                  6

                                    II. Standard of Review

                 Our standard of review for matters arising in divorce cases is well established.

We held in the syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004):

                        In reviewing a final order entered by a circuit court judge
                 upon a review of, or upon a refusal to review, a final order of a
                 family court judge, we review the findings of fact made by the
                 family court judge under the clearly erroneous standard, and the
                 application of law to the facts under an abuse of discretion
                 standard. We review questions of law de novo.

With this standard in mind, we consider the parties’ arguments.



                                         III. Discussion

                 Ms. Warren challenges the circuit court’s decision with respect to the amount

and duration of her spousal support award.6 She contends that the circuit court erred in

finding that the prospective increase in her spousal support was based on mere speculation

regarding Mr. Garland’s future ability to pay and, as such, was a preemptive modification

without sufficient evidence, as proscribed by Mayle. She argues that Mayle does not apply

in this instance because the increase in the spousal support award was based on concrete

evidence and foreseeable events that would substantially reduce Mr. Garland’s monthly

indebtedness and, in turn, increase his ability to pay. In particular, Ms. Warren submits that

the family court properly relied upon the fact that within three years, Mr. Garland will have



       6
           The award of attorney’s fees is not an issue in this appeal.

                                                 7

paid off, or least substantially reduced, the marital credit card debt and the attorney’s fees

award. As a result, more money will be available to him to pay the increased spousal support

award. She further argues that the circuit court abused its discretion by terminating the

spousal support award after three years without making specific findings to support that

decision.



              Conversely, Mr. Garland contends that the circuit court did not err in reversing

the family court’s decision with respect to the amount and duration of the spousal support

award because it was based on speculation regarding the respective financial standings of the

parties. While Mr. Garland acknowledges that he will have paid off certain debts in three

years, he argues that it was error for the family court to assume that he will be in a better

financial position at that time. In that regard, he points out that he could be laid off from

work or develop a medical condition which would have an impact on his ability to pay the

increased spousal support award. Therefore, he maintains it is error to modify a spousal

award based on future events that may or may not occur as this Court previously recognized

in Mayle.



              In Mayle, the petitioner wife had worked during the parties’ early married years

while the respondent husband attended medical school. At the time of the divorce, the wife

had been a full-time homemaker and caretaker for the parties’ children for several years and


                                              8

the husband, a practicing ophthalmologist, was generating a yearly income in excess of

$300,000.00. Finding that the wife was entitled to permanent spousal support because of the

length of the marriage and the respective financial circumstances and needs of the parties,

the family court granted an award of $5,500 per month for ten years, after which the amount

would be reduced to $1,500.00 per month. In considering the wife’s challenge to the

prospective reduction of spousal support, this Court found that the family court’s decision

to reduce the award after ten years was based on pure conjecture that the wife would return

to her hometown and assume a greater role in the operation of her family’s business. We

noted there was no testimony or other evidence elicited during the proceedings below that

supported the family court’s speculation about the wife’s future actions. While recognizing

that there could be a reason for reducing a spousal support award after a specified period of

time, this Court concluded in Mayle that there was simply no evidence to support such a

time-based reduction in that case. Id., 229 W.Va. at 185-86, 727 S.E.2d at 861-62.



              Having reviewed the record, we find that the instant case is factually distinct

from Mayle because there was sufficient evidence to support the family court’s decision to

increase the spousal support in three years. As noted by Ms. Warren, the family court based

its decision to increase the spousal support award on the fact that Mr. Garland will have paid

the attorney’s fees award in full by that time and will have substantially reduced, if not

eliminated, the marital credit card debt. Contrary to the finding of the circuit court, the


                                              9

family court was not merely speculating that Mr. Garland will have paid the attorney’s fees

in three years. Because he was ordered to pay the $3,600.00 award at “the minimum rate of

$100.00 per month until paid in full,” Mr. Garland will have completely paid the fees before

the spousal support award increases. In addition, Mr. Garland has acknowledeged that he

will have eliminated some, if not all, of the marital credit card debt he assumed in the

equitable distribution that was approved by the family court by that time because he has

voluntarily undertaken an extra payment of $500.00 per month in an effort to pay off the debt

as soon as possible. Importantly, Mr. Garland is not required to pay an additional $500.00

per month.     The evidence indicates that the minimal credit card payment due is

approximately $250.00.     As such, he has an additional $500.00 of monthly disposable

income at the present time but for the voluntarily increased credit card payment.



              Moreover, Mr. Garland currently has $510.00 in net income above his current

expenses, which include the $750.00 credit card payment. Therefore, the family court was

not speculating when it concluded that Mr. Garland would have more income available to

pay an enhanced spousal support award in three years as he already has a present ability to

make the $650.00 spousal support payment. It is clear that the family court recognized the

efforts Mr. Garland was making to reduce his indebtedness and, accordingly, delayed

imposition of the increased spousal award to ease his burden in that regard. In sum, we find




                                             10

that the family court had sufficient evidence upon which to base the prospective increase of

the spousal support award,7 and the circuit court erred in concluding otherwise.8



                We further find that the circuit court erred by reducing the duration of the

spousal support award to just three years. In reaching that decision, the circuit court simply

concluded that the family court’s decision to extend spousal support until Mr. Garland

reached the age of sixty-seven was “arbitrary and capricious.” The record, however does

not support that conclusion. As Ms. Warren points outs, the family court made extensive

findings pursuant to West Virginia Code § 48-6-301(b) (2014) in support of its determination

regarding both the amount and duration of the spousal support award.



                West Virginia Code § 48-6-301(b) sets forth a list of twenty factors that are to

be considered in awarding spousal support.9 The family court order clearly shows that


       7
        In the event that Mr. Garland has a change of circumstances in the future, he can file
a motion to modify the spousal support award. See W.Va. Code § 48-16-211 (2014)
(conferring continuing exclusive jurisdiction on family court to modify spousal support order
throughout existence of support obligation).
       8
        The circuit court also found that Ms. Warren would not have a need for an increase
in alimony in three years because at that time, she would be eligible for Medicare, which
would reduce her health care costs. However, the record shows that the cost of health
insurance was not included in Ms. Warren’s submission of her monthly expenses as she had
not obtained a policy at that juncture and, accordingly, it was not a factor in the family
court’s calculation of the appropriate amount of spousal support.
       9
           West Virginia Code § 48-6-301(b) provides:


                                               11

        The court shall consider the following factors in
determining the amount of spousal support, child support or
separate maintenance, if any, to be ordered under the provisions
of parts 5 [§§ 48-5-501 et seq.] and 6 [§§ 48-5-601 et seq.],
article five of this chapter, as a supplement to or in lieu of the
separation agreement:
        (1) The length of time the parties were married;
        (2) The period of time during the marriage when the
parties actually lived together as husband and wife;
        (3) The present employment income and other recurring
earnings of each party from any source;
        (4) The income-earning abilities of each of the parties,
based upon such factors as educational background, training,
employment skills, work experience, length of absence from the
job market and custodial responsibilities for children;
        (5) The distribution of marital property to be made under
the terms of a separation agreement or by the court under the
provisions of article seven of this chapter, insofar as the
distribution affects or will affect the earnings of the parties and
their ability to pay or their need to receive spousal support, child
support or separate maintenance: Provided, That for the
purposes of determining a spouse’s ability to pay spousal
support, the court may not consider the income generated by
property allocated to the payor spouse in connection with the
division of marital property unless the court makes specific
findings that a failure to consider income from the allocated
property would result in substantial inequity;
        (6) The ages and the physical, mental and emotional
condition of each party;
        (7) The educational qualifications of each party;
        (8) Whether either party has foregone or postponed
economic, education or employment opportunities during the
course of the marriage;
        (9) The standard of living established during the
marriage;
        (10) The likelihood that the party seeking spousal
support, child support or separate maintenance can substantially
increase his or her income-earning abilities within a reasonable

                                12

consideration was given to all of the statutory factors. Ultimately, the family court

determined that Ms. Warren was entitled to spousal support until Mr. Garland reaches the age

of sixty-seven based on the length of the parties’ marriage, the disparity in their incomes, Ms.

Warren’s health status in comparison to that of Mr. Garland,10 and Ms. Warren’s need to

obtain health insurance. The order indicates that the spousal support award was not lessened

nor increased because of the nearly equal equitable distribution of the parties’ marital assets

that was previously approved. With regard to the education factor, it was noted that both

parties have college degrees and that neither had any plans to seek further education. In


              time by acquiring additional education or training;
                      (11) Any financial or other contribution made by either
              party to the education, training, vocational skills, career or
              earning capacity of the other party;
                      (12) The anticipated expense of obtaining the education
              and training described in subdivision (10) above;
                      (13) The costs of educating minor children;
                      (14) The costs of providing health care for each of the
              parties and their minor children;
                      (15) The tax consequences to each party;
                      (16) The extent to which it would be inappropriate for a
              party, because said party will be the custodian of a minor child
              or children, to seek employment outside the home;
                      (17) The financial need of each party;
                      (18) The legal obligations of each party to support
              himself or herself and to support any other person;
                      (19) Costs and care associated with a minor or adult
              child's physical or mental disabilities; and
                      (20) Such other factors as the court deems necessary or
              appropriate to consider in order to arrive at a fair and equitable
              grant of spousal support, child support or separate maintenance.
       10
        The family court did not assign any fault to Mr. Garland for Ms. Warren’s mental
health deterioration after the parties separated.

                                              13

addition, both parties testified during the proceedings that they had jointly decided while they

were married not to pursue additional educational opportunities because of their existing

family and financial obligations. It was also noted that because the parties had no children

together and neither would be taking care of any minor children, the factors that relate to

child care or support were not relevant to the spousal support determination. Finally, the

family court order indicates that no weight of any type was placed on the fault factor11 in

making the award because neither party proved any fault for the dissolution of their marriage.



              Given the extensive findings made by the family court pursuant to West

Virginia Code § 48-6-301(b), there was no basis for the circuit court to conclude that the

family court’s decision with respect to the amount and duration of the spousal support award

was arbitrary and capricious. As we have explained, “[u]nder the clearly erroneous standard,

if the findings of fact and the inferences drawn by a family [court judge] are supported by

substantial evidence, such findings and inferences may not be overturned even if a circuit

court may be inclined to make different findings or draw contrary inferences.” Syl. Pt. 3,

Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 386, 465 S.E.2d 841 (1995). Accordingly, we




       11
         See W.Va. Code § 48-8-104 (2014) (also requiring court to consider and compare
fault or misconduct of either or both parties and effect of fault or misconduct as contributing
factor to deterioration of marital relationship in determining whether to award spousal
support and determining amount, if any, to be awarded).

                                              14

find that the circuit court erred by setting aside and vacating the spousal support award

effective the first day of the month following Ms. Warren’s sixty-fifth birthday.



                                      IV. Conclusion

              For the reasons set forth above, the final order of the Circuit Court of Webster

County is reversed with respect to the award of spousal support, and this case is remanded

for reinstatement of the March 5, 2013, order of the Family Court of Webster County with

respect to the amount and duration of the spousal support award granted to Ms. Warren.

                                                   Reversed and remanded with directions.




                                             15

