                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

James J.,                                                                          FILED
Petitioner, Respondent Below                                                   October 11, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-1074 (Taylor County 12-D-119)                                            OF WEST VIRGINIA


Sarah J.,
Respondent, Petitioner Below


                               MEMORANDUM DECISION


       Petitioner James J.,1 by counsel Thomas W. Kupec, appeals the Circuit Court of Taylor
County’s October 30, 2018, order denying his appeal from a July 11, 2018, order of the Family
Court of Taylor County modifying respondent’s spousal support award. Respondent, pro se, filed
a response in support of the circuit court’s order and a supplemental appendix.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        The parties were married on August 16, 1986. By agreement of the parties, during the
majority of their twenty-six year marriage, respondent did not work outside the home. On August
20, 2012, respondent filed for divorce and sought custody of the parties’ minor child, child support,
and spousal support. A final divorce order was entered by the Family Court of Taylor County on
May 2, 2013. In that order, respondent was awarded rehabilitative spousal support in the amount
of $225 per month for thirty-six months “with both the amount and the timeframe being modifiable
as provided by law upon a showing of a change in circumstances.” At the time of the initial award
of rehabilitative spousal support, respondent anticipated attending post-secondary education to
obtain a degree in nursing.
        In February of 2016, respondent filed a petition for modification of rehabilitative spousal
support following her diagnosis of breast cancer. She had been “laid off” from her job and was

       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).


                                                  1
unable to collect unemployment compensation benefits. Respondent acknowledged that since the
initial award of spousal support, she had been enrolled in college classes, but explained that she
was forced to “quit due to work scheduling issues.”

        By its “Modification Order” entered on April 26, 2016, the family court, pursuant to West
Virginia Code § 48-8-105(b), extended respondent’s rehabilitative support for an additional twelve
months and modified the amount from $225 per month to $300 per month. The family court
reasoned that the modification was premised upon a “significant change in the circumstances of
the parties.”

        In April of 2017, respondent filed a second petition for modification of rehabilitative
spousal support, arguing that her diagnosis of breast cancer and consequent medical conditions
limited her ability to work and further her education. Petitioner filed a response in opposition to
that petition for modification and argued that continuation of rehabilitative support was not
justified. On September 6, 2017, the family court held a hearing on respondent’s second petition
for modification.

        By final order entered July 11, 2018, the family court granted respondent’s petition for
modification, converted her rehabilitative spousal support award to an award of permanent spousal
support, and set the amount of permanent spousal support at $500 per month. The family court
acknowledged that respondent was initially awarded rehabilitative spousal support as it was
anticipated that she planned to obtain a post-secondary education degree in nursing. However, the
court noted that respondent had not completed and was not anticipated to complete any post-
secondary education in nursing or any other field due, in part, to her “need to be gainfully
employed in periods of time when she is well enough to do so.”

        The family court found that since their separation and divorce, petitioner’s income has
increased and respondent’s has decreased. Specifically, the court found that even when respondent
is healthy enough to hold a steady job,

       she is not likely to earn much more above minimum wage as she has a high school
       diploma; she has extremely limited work experience as she was a stay-at home
       mother by agreement during the majority of the parties’ twenty-six (26) year
       marriage; she is currently fifty (50) years of age; with her extremely limited work
       experience, she has limited marketable skills; her health is poor in that she is still
       participating in breast cancer treatment and procedures associated with breast
       cancer treatment; her ability to meet the terms of the prior rehabilitative plan is
       unlikely based upon her age, poor health, and her need to maintain [a] home.

        In August of 2018, petitioner appealed the July 11, 2018, family court order to the Circuit
Court of Taylor County. By order entered on October 20, 2018, the circuit court affirmed the
family court order modifying respondent’s award of rehabilitative spousal support to permanent
spousal support. The circuit court noted that given the testimony presented before the family court,
the circuit court could not determine that the modification of the spousal support award was an
abuse of discretion. It is from the circuit court’s October 20, 2018, order that petitioner now
appeals.

                                                 2
       We have found that

               “[i]n reviewing challenges to findings made by a family court judge 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.” Syllabus Point 2, Lucas v. Lucas, 215 W.Va. 1, 592
       S.E.2d 646 (2003).

Syl. Pt. 1, Campbell v. Smith, 216 W. Va. 583, 609 S.E.2d 844 (2004).

        Here, in his single assignment of error, petitioner argues that the circuit court erred in
failing to find that petitioner’s due process rights were violated by the family court’s “unilateral”
increase of respondent’s spousal support award and conversion of the award from rehabilitative
support to permanent support. Petitioner contends that the family court’s ruling was made without
notice to petitioner and without the requisite significant change in circumstances of the parties.2

        This Court has long held that “[q]uestions relating to [spousal support] . . . 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, in part, Nichols v.
Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977). In syllabus point 6 of Wood v. Wood, 190 W. Va.
445, 438 S.E.2d 788 (1993), we recognized that “[c]ircumstances between the parties can
substantially change once rehabilitative alimony is awarded, and where such change of
circumstances justify an award of rehabilitative alimony, the award can be extended or modified
to a permanent alimony award.” Accord Syl. Pt. 4, Pelliccioni v. Pelliccioni, 214 W. Va. 28, 585
S.E.2d 28 (2003).

       West Virginia Code § 48-8-105(b), explicitly provides that

       [t]he court may modify an award of rehabilitative spousal support if a substantial
       change in the circumstances under which rehabilitative spousal support was granted
       warrants terminating, extending or modifying the award or replacing it with an
       award of permanent spousal support. In determining whether a substantial change
       of circumstances exists which would warrant a modification of a rehabilitative


       2
         We note that despite petitioner’s inference to the contrary, it is undisputed that petitioner
received notice of respondent’s instant petition for modification of her spousal support award.
Petitioner filed a response to respondent’s petition for modification and participated in a hearing
held on the same. Accordingly, we find no merit to petitioner’s contention that he received no
notice. Further, we recognize that modification of an award of rehabilitative spousal support to an
award of permanent spousal support is permissible, as discussed hereinbelow, under West Virginia
Code § 48-8-105(b), if a substantial change of circumstances exist, like the substantial change in
circumstances respondent established herein.


                                                  3
        spousal support award, the court may consider a reassessment of the dependent
        spouse’s potential work skills and the availability of a relevant job market, the
        dependent spouse’s age, health and skills, the dependent spouse’s ability or inability
        to meet the terms of the rehabilitative plan and other relevant factors . . . .

        Similarly, this Court held, in syllabus point 5 of Pelliccioni that

                “[a] rehabilitative alimony award may be extended or modified into a
        permanent alimony award where the dependent spouse demonstrates a substantial
        change in the circumstances under which rehabilitative alimony was awarded. In
        determining whether a substantial change of circumstances exists which would
        warrant a modification of a rehabilitative alimony award to a permanent alimony
        award, the trial court may consider a reassessment of the dependent spouse’s
        potential work skills and the availability of a relevant job market, the dependent
        spouse’s age, health and skills, the dependent spouse’s inability to meet the terms
        of the rehabilitative alimony plan, as well as any of the other facts set forth in West
        Virginia Code § 48-2-16 (1992). The trial court should not consider modifying a
        rehabilitative alimony award to a permanent alimony award until the dependent
        spouse has had a reasonable amount of time to comply with the terms of the
        rehabilitative alimony award.” Syllabus Point 7, Wood v. Wood, 190 W.Va. 445,
        438 S.E.2d 788 (1993).

        Here, the family court, in converting respondent’s rehabilitative spousal support award to
an award of permanent spousal support, found that a significant change in the circumstances of the
parties existed. The family court made detailed and specific findings supporting the modification,
including an assessment of respondent’s potential work skills, age, health, education, and ability
or inability to meet the terms of the rehabilitative plan. Based upon the family court’s findings and
the clear precedent of this Court, we find no error in the circuit court’s denial of petitioner’s appeal.

        For the foregoing reasons, we affirm.


                                                                                              Affirmed.


ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                   4
