Michael R. Campbell v. Joanna v. Campbell ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
_______________ FILED
February 24, 2020
No. 18-0627 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MICHAEL R. CAMPBELL,
Petitioner Below, Petitioner
V.
JOANNA V. CAMPBELL,
Respondent Below, Respondent
_____________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Charles E. King, Jr., Judge
Civil Action No. 2014-D-1722
REVERSED AND REMANDED
_____________________________________________
Submitted: January 15, 2020
Filed: February 24, 2020
James T. Cooper Keisha D. May
Law Office of James T. Cooper Ciccarello, Del Giudice & LaFon
Charleston, West Virginia Charleston, West Virginia
Attorney for the Petitioner Attorney for the Respondent
JUSTICE JENKINS delivered the Opinion of the Court.
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. “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.” Syllabus point 4, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987).
3. “The party petitioning for a modification of the support provisions of a
divorce decree bears the burden of showing a substantial change of circumstances.”
Syllabus point 3, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987).
i
Jenkins, Justice:
The petitioner herein and petitioner below, Michael R. Campbell (“Mr.
Campbell”), appeals from the June 11, 2018 order entered by the Circuit Court of
Kanawha County. By that order, the circuit court affirmed the family court’s order
denying Mr. Campbell’s motion to modify his spousal support obligation to his former
wife, the respondent herein and respondent below, Joanna V. Campbell (“Ms.
Campbell”). On appeal to this Court, Mr. Campbell argues that his current monthly
spousal support obligation is greater than his current monthly retirement income and that
the lower courts have erred by refusing to modify his spousal support obligation to an
amount that is commensurate with his ability to pay. Upon a review of the parties’
arguments and briefs, the appendix record, and the pertinent authorities, we conclude that
the circuit court erred by affirming the family court’s order that refused to modify Mr.
Campbell’s spousal support obligation. Accordingly, we reverse the June 11, 2018 order
of the Kanawha County Circuit Court and remand this case for further proceedings
consistent with this opinion.
I.
FACTS AND PROCEDURAL HISTORY
Mr. and Ms. Campbell married in 1995 and were divorced in October 2015;
no children were born of the marriage. While they were married, Ms. Campbell worked
as a postal clerk for the United States Postal Service until approximately 2009, and Mr.
Campbell worked for Union Carbide, which later became The Dow Chemical Company
1
(“Dow”).1 In 2014, Mr. Campbell was offered, and accepted, an opportunity through
Dow to work in Saudi Arabia for a minimum period of one year, up to a maximum period
of three years. During this time, Mr. Campbell’s monthly income increased substantially,
from $7,818.50 per month, when he worked for Dow in the United States, to $18,818.00
per month, working for Dow in Saudi Arabia. It is this inflated income amount upon
which the family court calculated Mr. Campbell’s spousal support obligation of
$5,900.00 per month during the parties’ divorce proceedings.
Although Mr. Campbell had planned to work until his mid-sixties, he
ultimately retired from Dow at age 60, in February 2018, when his overseas employment
contract ended, and the Saudi Arabian company with which he had been working did not
offer him continued employment. As a result of his retirement, Mr. Campbell’s monthly
income decreased2 significantly to $4,778.54 per month.3 Consequently, Mr. Campbell’s
1
The precise nature of Mr. Campbell’s employment with Dow is unclear
from the record, but his job position has been described as a “Work Process LE” in his
income tax filings pertaining to his foreign employment.
2
By contrast, Ms. Campbell’s monthly income has increased since Mr.
Campbell’s retirement because she now receives $834.00 per month as her portion of Mr.
Campbell’s Dow retirement benefits in addition to her $5,900.00 per month spousal
support award.
3
When Mr. Campbell begins receiving Social Security retirement benefits
at age 62, his monthly retirement income will remain the same because Dow is currently
subsidizing Mr. Campbell’s monthly retirement income until he starts to receive Social
Security benefits, at which time his supplemental income from Dow will cease.
2
continued monthly spousal support obligation of $5,900.00 exceeds his current monthly
retirement income by $1,121.46 per month.
Given his reduction in income, Mr. Campbell filed a petition to modify his
spousal support obligation in the Family Court of Kanawha County in January 2018. In
support of his request for relief, Mr. Campbell recounted that his employment with Dow
had ended, he was not offered a contract with the Saudi Arabian company with which he
had been working with Dow, and, as a result, “there has been a substantial change in
financial circumstances since the entry of the Final [Divorce] Order thereby entitling
[him] to a modification of his alimony obligation.” Ms. Campbell opposed Mr.
Campbell’s petition and requested discovery of his financial information, in response to
which Mr. Campbell provided copies of his bank statements for his United States
checking account,4 federal and state income tax returns, and documents explaining the
amount of his retirement income from Dow as well as the conditions attached thereto.5
4
Mr. Campbell subsequently also disclosed copies of his bank statements
for his United States savings account and for a new bank account he opened in Thailand
when he moved there following his retirement.
5
Such conditions included a confidentiality agreement, a non-
disparagement provision, and a non-compete clause, which Mr. Campbell argued
precludes his employment in a similar capacity with a competitor of Dow in the United
States.
3
In support of her opposition to Mr. Campbell’s modification petition, Ms.
Campbell submitted a statement of her monthly expenses, which totaled $7,968.08. 6
Included in Ms. Campbell’s monthly expenses are amounts for her mortgage payment for
the parties’ former marital home, ownership of which Ms. Campbell received in the
divorce; vehicle maintenance; and health insurance, as well as allowances for groceries
and personal care.
Following several evidentiary hearings, the family court, by order entered
May 7, 2018, denied Mr. Campbell’s modification petition. In so ruling, the family court
found that Mr. Campbell had failed “to prove that a substantial change of circumstances
ha[s] occurred.” The family court based this finding, in part, upon Mr. Campbell’s
purchase of a home in Thailand following his retirement, where he now resides with his
new wife, and his use of savings he had amassed during his employment to fully fund the
home’s purchase price of $150,000.00.7 The family court also cited that Mr. Campbell
“has failed to provide the Court with necessary verifiable financial documentation to
6
While Ms. Campbell claims that her monthly expenses for her single
person household are $7,968.08, it appears that the monthly household expenses for both
Mr. and Ms. Campbell when they were married and Mr. Campbell was working for Dow
in the United States were approximately $4,400.00. Additionally, Mr. Campbell claimed
during the instant modification proceeding that his current expenses for a household of
two people living in Thailand are roughly $2,500.00 per month.
7
At the time of their divorce, the parties’ marital home and associated
property, which included a second home in which Ms. Campbell’s mother resides, was
valued at $138,000.00. Ms. Campbell received the marital home and all associated
property in the divorce, including Mr. Campbell’s share of the equity therein.
4
support his request herein”8 as an additional basis for refusing to reduce the amount of his
spousal support obligation.
Mr. Campbell then appealed from the family court’s order to the Circuit
Court of Kanawha County. By order entered June 11, 2018, the circuit court summarily
affirmed the family court’s order. From this adverse decision, Mr. Campbell appeals to
this Court.
II.
STANDARD OF REVIEW
The instant proceeding is before this Court on appeal from the circuit
court’s order affirming the family court’s order denying Mr. Campbell’s petition to
modify his spousal support award. We previously have held that,
[i]n 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.
Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). See also Syl. pt. 2, Lucas
v. Lucas, 215 W. Va. 1, 592 S.E.2d 646 (2003) (“In reviewing challenges to findings
made by a family court judge that also were adopted by a circuit court, a three-pronged
8
See supra note 4 and corresponding text regarding the financial
information Mr. Campbell provided during the underlying proceedings.
5
standard of review is applied. Under these circumstances, a final . . . 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.”). With respect to the specific issue presently before the
Court, we have held that “[q]uestions relating to alimony . . . are within the sound
discretion of the court and its actions with respect to such matters will not be disturbed on
appeal unless it clearly appears that such discretion has been abused.” Syl., in part,
Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). In light of these standards, we
consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, Mr. Campbell assigns error to the lower courts’
orders denying his modification petition. In refusing his request to reduce his monthly
spousal support obligation, the family court concluded that Mr. Campbell had not
demonstrated a substantial change in his financial circumstances to support his
modification petition, which decision the circuit court affirmed. Before this Court, Mr.
Campbell again asserts that he has sustained a substantial change of circumstances,
attributable to his reduced monthly income as a result of his retirement, sufficient to
warrant a reduction in his support obligation. We agree that Mr. Campbell is entitled to a
modification of his spousal support obligation.
6
At its most basic level, an award of spousal support is designed to provide
for the care and maintenance of the payee spouse following the termination of the
couple’s marriage: “[t]he sole purpose of an award of alimony is to provide for the
support of a former spouse.” Syl. pt. 3, in part, Clay v. Clay, 182 W. Va. 414, 388 S.E.2d
288 (1989). In awarding Ms. Campbell spousal support incident to the parties’ divorce,
the family court considered the various statutory factors contributing to such an award.
See generally W. Va. Code § 48-6-301 (LexisNexis 2015). The parties do not here
quarrel regarding the family court’s initial award of spousal support to Ms. Campbell.
Nevertheless, a corollary component to an award of spousal support must
necessarily be the payor spouse’s ability to satisfy the payment thereof. To this end, the
Legislature specifically has recognized that “[a]n award of spousal support shall not be
disproportionate to a party’s ability to pay as disclosed by the evidence before the court.”
W. Va. Code § 48-8-103(a) (LexisNexis 2015). Again, it appears that Mr. Campbell
satisfied his monthly spousal support obligation ordered by the family court until
immediately before his retirement when his income dramatically decreased.
Recognizing that people’s financial fortunes may not remain constant for
perpetuity, the Legislature also has provided for the subsequent modification of a spousal
support award should the parties’ circumstances so warrant:
At any time after the entry of an order pursuant to the
provisions of this article, the court may, upon motion of either
party, revise or alter the order concerning the maintenance of
7
the parties, or either of them, and make a new order
concerning the same, issuing it forthwith, as the altered
circumstances or needs of the parties may render necessary to
meet the ends of justice.
W. Va. Code § 48-8-103(b). Accord W. Va. Code § 48-5-701 (LexisNexis 2015) (“After
the entry of a final divorce order, the court may revise the order concerning spousal
support or the maintenance of the parties and enter a new order concerning the same, as
the circumstances of the parties may require.”). We have interpreted the requisite criteria
to make such a showing as follows: “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.” Syl. pt. 4, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987). We
further have held that courts are required “to consider the financial needs of the parties,
their incomes and income earning abilities and their estates and the income produced by
their estates in determining the amount of alimony to be awarded in a modification
proceeding.” Syl. pt. 2, in part, Yanero v. Yanero, 171 W. Va. 88, 297 S.E.2d 863 (1982).
Finally, “[t]he party petitioning for a modification of the support provisions
of a divorce decree bears the burden of showing a substantial change of circumstances.”
Syl. pt. 3, Goff, 177 W. Va. 742, 356 S.E.2d 496. Accord Syl. pt. 7, in part, Lucas, 215
W. Va. 1, 592 S.E.2d 646 (“The burden of proof to establish changed circumstances
justifying reduction or termination of spousal support . . . remains upon the payor, as the
party petitioning for modification.”).
8
Thus, in order to demonstrate his entitlement to a modification of his
spousal support obligation, Mr. Campbell is required to prove “a substantial change of
circumstances,” Syl. pt. 3, in part, Goff, 177 W. Va. 742, 356 S.E.2d 496, that was “not
reasonably . . . expected at the time of the divorce decree,” Syl. pt. 4, in part, Goff, id.9
Having reviewed the appendix record in this case, which contains the evidence presented
to the family court in support of Mr. Campbell’s modification petition, as well as the
family court’s original divorce order, we find that Mr. Campbell has sustained his burden
of proof and is entitled to a modification of his spousal support obligation.
At the time of the parties’ divorce, Mr. Campbell was working overseas and
earning almost two and one-half times the salary he received when he was working for
Dow in the United States. This inflated income is the amount upon which Ms.
Campbell’s spousal support award was calculated. Since that time, however, Mr.
Campbell has retired from his former employment such that his current monthly income
is approximately only one-fourth of the amount it was at its zenith. In actual terms, Mr.
Campbell’s spousal support award exceeds his gross retirement income by $1,121.46 per
month.
9
An additional factor to consider in determining whether a spousal support
order should be modified is whether there exists an “explicit, well expressed, clear, plain
and unambiguous provision . . . set forth in . . . the order granting the divorce” that
precludes the modification of the family court’s spousal support award. W. Va. Code
§ 48-6-201(b) (LexisNexis 2015). The parties do not contend, and we do not find, that
such a restriction exists in this case.
9
Although the Legislature has recognized that
[p]ayments of spousal support are to be ordinarily made from
a party’s income, but when the income is not sufficient to
adequately provide for those payments, the court may, upon
specific findings set forth in the order, order the party
required to make those payments to make them from the
corpus of his or her separate estate[,]
W. Va. Code § 48-8-103(a), this alternative payment option is not a viable solution in the
case sub judice. At the current spousal support rate of $5,900.00 per month, Mr.
Campbell would be required to spend the entirety of his monthly retirement income and
expend additional monies from his savings reserves to fully satisfy his obligation, thus
leaving him with no amount of his monthly retirement income from which to pay his own
monthly expenses. Continuing payments in this manner would completely deplete Mr.
Campbell’s savings after approximately three years, or less if he used a portion of these
resources to satisfy his monthly needs, after which time he would have no estate corpus
from which to meet his monthly spousal support deficiency, and, arguably, would again
have to request a modification of his spousal support obligation. Insofar as the
Legislature has cautioned that “[a]n award of spousal support shall not be
disproportionate to a party’s ability to pay,” W. Va. Code § 48-8-103(a), it is clear that
Mr. Campbell has demonstrated “a substantial change of circumstances,” Syl. pt. 3, in
part, Goff, 177 W. Va. 742, 356 S.E.2d 496, sufficient to support a modification of his
spousal support obligation because his current assets are not sufficient to fully satisfy the
monthly amount of spousal support he has been ordered to pay.
10
Moreover, while the parties presumably recognized that Mr. Campbell
likely would retire at some point in time, this fact does not appear to have been
contemplated by the family court in its final order establishing the current spousal
support obligation. Neither did the family court make an allowance for the instant
scenario in which Mr. Campbell’s overseas employment ended sooner than the parties
hoped or anticipated. In short, the family court’s monthly award of $5,900.00 spousal
support to Ms. Campbell is simply to continue as ordered “until the death of either party
or until such time as [Ms. Campbell] remarries.” No provision is included in the final
divorce order for a change in Mr. Campbell’s monthly income attributable to the
cessation of his overseas employment contract, his retirement, or for any other reason.
As such, the current financial circumstances of Mr. Campbell were “not reasonably . . .
expected at the time of the divorce decree,” Syl. pt. 4, in part, Goff, id., and, thus, provide
further support for his modification petition.
For the foregoing reasons, we conclude that the family court erred by
denying Mr. Campbell’s petition to modify his spousal support award and that the circuit
court erred by affirming the family court’s ruling. Accordingly, we reverse the circuit
court’s order and remand this case to the family court for further proceedings to
recalculate Mr. Campbell’s spousal support obligation, upon consideration of “the
financial needs of the parties, their incomes and income earning abilities and their estates
11
and the income produced by their estates.” Syl. pt. 2, in part, Yanero, 171 W. Va. 88, 297
S.E.2d 863.10
IV.
CONCLUSION
For the foregoing reasons, we reverse the June 11, 2018 order of the Circuit
Court of Kanawha County and remand this case for further proceedings consistent with
this opinion.
Reversed and Remanded.
10
To the extent Mr. Campbell has raised assignments of error regarding
specific items that the lower courts either allegedly failed to consider or misconstrued
during the underlying modification proceedings, i.e., the effect of Mr. Campbell’s future
receipt of Social Security retirement benefits and Ms. Campbell’s claims of having paid
marital debts following the parties’ divorce, such issues should be addressed in the
proceedings on remand in the course of recalculating Mr. Campbell’s spousal support
obligation.
12