No. 14-0429, Warren v. Garland
                                                                            FILED
                                                                          April 10, 2015
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

Workman, Chief Justice, concurring:


              I concur with the result reached by the majority regarding the amount and

duration of spousal support to Ms. Warren. Without a doubt, the circuit court misapplied

our holding in Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012), when it reversed

the order of the family court. In Mayle, this Court did not create a rigid prohibition

against any prospective increases of spousal support. Rather, Mayle required only that

there be sufficient evidence in support of such a change. In this case, the family court

articulated fact-based reasons to justify the increase in spousal support that were tailored

to the needs and circumstances of the parties:       in three years, Mr. Garland would

substantially reduce the marital credit card indebtedness and abolish his attorney fee

obligations. This finding was in no way speculative. In fact, had we affirmed the circuit

court’s order, Ms. Warren would be unjustly penalized for taking less in spousal support

temporarily so that Mr. Garland could pay off this marital debt.


              I write separately to spotlight the fallacy of any suggestion that Ms. Warren

should just wait three years to file a motion for modification of spousal support pursuant

to West Virginia Code § 48-6-201(b) (2014), when the financial situation of the parties is

further disparate. In Zirkle v. Zirkle, 172 W.Va. 211, 304 S.E.2d 664 (1983), we

recognized that to justify a modification of a spousal support award already established,

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the party seeking modification must show that there has been a substantial change in the

circumstances of the parties. See also Louk v. Louk, 184 W.Va. 164, 166, 399 SE.2d 875,

877 (1990) (finding no substantial change in parties’ circumstances to justify husband’s

petition for modification of original spousal support award after wife found gainful

employment considering husband’s obligation was not an inordinate sum, given his

income). We have placed the burden of showing a substantial change of circumstances on

the party petitioning for modification of the spousal support award. Syl. Pt. 3, Goff v.

Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).


              Typically, changes in circumstances within the contemplation of the parties

at the time of the final hearing cannot provide a basis for modifying a spousal support

award. See Syl. Pt. 4, Goff, 177 W.Va. 742, 356 S.E.2d 496 (“In order to satisfy the

requirement of a substantial change in circumstances necessary to grant a modification in

support obligations, the change must be one which would not reasonably have been

expected at the time of the divorce decree.”). See generally, Calvert v. Calvert, 336

S.E.2d 884, 889 (S.C. Ct. App. 1985) (refusing to adjust spousal support where alleged

substantial change was known and contemplated by parties at time of decree).


              In the instant case, the family court’s spousal support award to Ms. Warren

was based on Mr. Garland’s increased ability to pay a higher amount in three years when

his attorney fee obligation was paid in full and his marital credit card payment was

reduced or paid off. Because these financial circumstances were known, and easily

quantifiable, at the time of the final hearing, I do not believe that any subsequent petition

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for modification would be successful. For that reason, the family court acted judiciously

when it addressed these foreseeable changes and provided for the future increase in the

amount of the spousal support to Ms. Warren.


             For the foregoing reasons, I respectfully concur.




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