STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

TERESA L. UNDERHILL, FILED 

Respondent below, Petitioner, November 9, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK vs.) No. 14-1102 (Kanawha County10-D-96 ) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

JAMES F. UNDERHILL, 

Petitioner below, Respondent 

MEMORANDUM DECISION 

Petitioner Teresa Underhill (“Ms. Underhill”), by counsel Tim C. Carrico, 

appeals the September 11, 2014, order of the Circuit Court of Kanawha County affirming 

an April 29, 2014, final order of the Family Court of Kanawha County that modified the 

spousal support award contained in the parties’ final divorce order. In this appeal, Ms. 

Underhill argues that the circuit court erred by affirming the family court’s order 

modifying the spousal support award. By contrast, Respondent James Underhill (“Mr. 

Underhill”), by counsel Mark W. Kelley and David S. Hughart, raises a cross-assignment 

of error. He asserts that the family court should have completely terminated, rather than 

modified, the spousal support award contained in the final divorce order. 

Upon consideration of the standard of review, the record presented, the 

parties’ briefs and oral arguments, this Court finds no substantial question of law and no 

prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s 

order is appropriate under Rule 21 of the Rules of Appellate Procedure. 

Mr. and Ms. Underhill divorced in 2011 after approximately thirty years of 

marriage. In 2011, Mr. Underhill was an executive with McJunkin Red Man Corporation 

and earned a “high six-figure” income.1 Ms. Underhill was a CPA but was not employed 

when the parties divorced. As part of the divorce settlement, the parties entered into an 

agreement to resolve their financial issues, resulting in each party receiving 

approximately $2,300,000.00 after the “net martial estate” was divided. The final order 

incorporating this agreement and resolving all outstanding issues in the divorce was 

entered by the family court on December 29, 2011. 

1 In her brief to this Court, Ms. Underhill states that Mr. Underhill earned 

$849,394.00 in 2011. 

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The family court’s final divorce order included a spousal support provision 

that required Mr. Underhill to pay Ms. Underhill $10,000.00 a month for a period of 

thirty-six months and then $9,750.00 a month until Ms. Underhill reached age sixty-six 

and a half or until a specified event occurred. The order states that the first eighteen 

months of the spousal support obligation were non-modifiable unless Mr. Underhill lost 

his job. Further, after the first eighteen months, the spousal support obligation was 

“modifiable by either party upon a proper Motion to the Court.” The spousal support 

provision contained in the family court’s final order states: 

Petitioner [Mr. Underhill] shall be obligated to pay 

spousal support commencing on January 15, 2011, in the 

amount of $10,000.00 a month for a period of three (3) years 

(intended to be thirty – six (36) months). Except that 

Petitioner’s obligation of Ten Thousand Dollars ($10,000.00) 

per month is non-modifiable for a period of eighteen (18) 

months of the thirty – six (36) unless Petitioner loses his 

current employment and is unable to find commensurate 

employment within 90 days, at which time Petitioner may file 

a motion for a modification, which if granted shall be 

effective from the date he lost his employment, and not the 

date of the filing of the petition for modification. 

Accordingly, if the Court determines a modification is 

warranted then Petitioner shall receive a credit and/or refund 

for any excess amounts he paid between the date his 

employment ended and the date the modified spousal support 

payment begins. After the eighteen (18) months this 

amount is modifiable by either party upon a proper 

Motion to the Court. The Petitioner’s obligation on the 

thirty–seventh (37th) month will automatically reduce to 

$9,750.00 a month, and will continue until such time as 

Respondent attains the age of sixty-six and one-half (66 1⁄2) 

years of age at which time Petitioner’s spousal support 

obligation shall cease and after that date Respondent shall not 

be permitted to seek or receive spousal support. . . . The 

obligation terminates in the event of either party’s death or at 

Respondent’s remarriage or de facto marriage. For purposes 

of determining the amounts of alimony the parties have not 

stipulated to either party’s monthly expenses or financial 

needs. The parties have stipulated to Petitioner’s income, 

from any source, in the taxable year 2010 in a total gross 

amount of $750,000.00. In taxable year 2011, Petitioner’s 

total gross income from any source is anticipated to be 

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$450,000.00 and the parties have stipulated to this as 

Petitioner’s 2011 gross income. The parties also stipulate that 

for eighteen (18) months beginning January 2011 Respondent 

will have no income. Thereafter commencing in July 2012, 

the parties stipulate that Respondent should be able to find 

employment with her stipulated income at $40,000.00 gross 

per year. 

(Emphasis added). 

After entry of the family court’s order, Mr. Underhill made the $10,000.00 

monthly payments to Ms. Underhill for thirty-four consecutive months (January 2011 

through October 2013). On August 28, 2013, Mr. Underhill filed a motion to terminate 

his spousal support obligation, asserting that three substantial changes in the parties’ 

circumstances had occurred since the entry of the family court’s final order: (1) he lost 

his job,2 (2) Ms. Underhill’s net worth had increased from approximately $2,300,000.00 

at the time of the divorce to over $6,000.000.00 by 2013 through an inheritance and 

through certain “profit units”3 becoming valuable; and (3) while the parties contemplated 

Ms. Underhill finding employment that would pay her $40,000.00 annually, she found a 

job that paid her $65,000.00 a year. Ms. Underhill responded by asserting that Mr. 

Underhill’s severance package from his former employer would still provide him with a 

six-figure income in 2014, and that under the terms of the spousal support obligation 

agreement, Mr. Underhill should not be permitted to reduce or terminate his spousal 

support payments. 

The family court agreed with Mr. Underhill that there had been substantial 

changes in the parties’ circumstances and entered an order modifying, but not completely 

terminating, the spousal support obligation. In so ruling, the family court cited and relied 

2 Mr. Underhill was “involuntarily” retired by his employer in August 2013. He 

received a severance package and a contingent consulting agreement, but did not receive 

any income for the six-month period following his “retirement.” After six months, his 

severance package and consulting agreement were expected to pay him on a monthly 

basis from March 2014 through March 2015. 

3 At the time of the divorce, the parties’ divided a number of so-called “profit 

units” and “common units” that Mr. Underhill had received as part of his employment 

with McJunkin Red Man Corporation. The family court described these “profit units” as 

follows: “It was understood at the time [of the divorce] that such units would only have 

any real value if the company went public and became a publicly traded company. Such 

event occurred after the parties’ divorce was finalized and [Ms. Underhill] reaped a 

benefit of approximately $1,140,000.00 from that occurrence.” 

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upon W.Va. Code § 48-8-103(b) [2012]. The title of this code section is “[p]ayment of 

spousal support.” It states: 

(b) 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 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. 

The family court ruled that “the loss of [Mr. Underhill’s] employment 

constitutes a significant change in circumstances.” It also ruled that because Ms. 

Underhill’s net worth had increased from $2,324,362.00 at the time of the divorce to 

$6,112,423.72 by October 2013, her “need for spousal support has gone down[.]” 

Additionally, the family court noted that Ms. Underhill was earning $65,000.00 per year. 

Based on these findings, the family court ruled as follows: 

This Court, having considered “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, Yanero v. Yanero, 171 

W.Va. 88, 297 S.E.2d 863 (1982), concludes that [Mr. 

Underhill’s] obligation to [Ms. Underhill] should be modified 

effective August 30, 2013. 

The family court stated that “while [Mr. Underhill] lost his employment, he nonetheless 

is still receiving earnings from that employment” via the severance package from his 

former employer. Mr. Underhill was scheduled to receive monthly payments from his 

severance package from March 2014 through March 2015. 

Due to these changed circumstances, the family court ordered that: (1) Mr. 

Underhill’s spousal support obligation to Ms. Underhill would be suspended from the 

date he lost his job (August 2013) until he began receiving his monthly payments from 

the severance package (March 2014);4 (2) for the months of May and June 2014, Mr. 

4 While Mr. Underhill lost his job and petitioned the court to terminate his spousal 

support obligation in August 2013, he continued making monthly spousal support 

payments to Ms. Underhill in September and October 2013 while the family court 

considered his motion. The family court suspended his monthly payments from August 

2013 through February 2014. It ruled that “for the months of March and April 2014, [Mr. 

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Underhill’s spousal support obligation would be $10,000.00 a month, which would 

complete his thirty-six month obligation to pay that amount; (3) for the period of June 

2014 through March 2015, Mr. Underhill’s spousal support obligation would be 

$9,750.00 a month; (4) Mr. Underhill’s spousal support obligation would terminate as of 

April 1, 2015, which is the date when his severance package expired; and (5) the court 

would retain jurisdiction to modify the spousal support obligation as the circumstances of 

the parties may require until Ms. Underhill reaches the age of sixty-six and a half. 

Mr. Underhill appealed the family court’s order to the circuit court, arguing 

that the family court erred by failing to completely terminate his spousal support 

obligation. Ms. Underhill filed a cross-appeal to the circuit court, arguing that the family 

court erred by modifying the terms of the spousal support obligation contained in the 

final divorce order. 

The circuit court entered a detailed order affirming the family court’s order. 

The circuit court’s order provides that “[t]he family court entered a thorough order 

modifying the spousal support obligation, which was within its discretion. See W.Va. 

Code § 48-8-103(b).” After noting that W.Va. Code § 48-8-103(b) provided the family 

court with the authority to modify a spousal support obligation due to the altered 

circumstances or needs of the parties, the circuit court’s order concludes: 

After carefully reviewing the family court’s 

application of the facts of this case to pertinent law, the Court 

cannot find that the family court abused its discretion in 

modifying [Mr. Underhill’s] spousal support obligation to 

[Ms. Underhill] but not completely terminating said spousal 

support. In addition, the Court cannot find that the family 

court abused its discretion in suspending [Mr. Underhill’s] 

monthly spousal support obligation for six months. These 

rulings were within the sound discretion of the family court. 

After entry of the circuit court’s order, Ms. Underhill filed the present 

appeal, asserting that the circuit court erred by affirming the family court’s order 

modifying the spousal support obligation. Mr. Underhill filed a response to Ms. 

Underhill’s appeal and also filed a cross-assignment of error with this Court, arguing that 

the circuit court erred by affirming the family court’s order that modified, rather than 

completely terminated, his spousal support obligation. 

Our standard of review was set forth in the Syllabus of Carr v. Hancock, 

216 W.Va. 474, 607 S.E.2d 803 (2004). It states: 

Underhill] is entitled to credit for the payments he made [$10,000.00 a month] in 

September and October 2013.” 

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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. 

The issue on appeal is whether the circuit court erred when it affirmed the 

family court’s order modifying the spousal support obligation. The three main errors 

asserted by Ms. Underhill are: (1) the changes in the parties’ circumstances were 

“contemplated” at the time of the divorce and therefore should not have been considered 

by the family court; (2) the family court erred by considering Ms. Underhill’s increased 

net worth despite the parties’ agreement that her financial needs and monthly expenses 

would not be considered in a modification proceeding; and (3) the family court erred by 

not considering Mr. Underhill’s gross income from sources other than his former 

employer. In his cross-assignment of error, Mr. Underhill asserts that the family court 

erred by failing to completely terminate his spousal support obligation. 

Before addressing the parties’ specific assignments of errors, we begin our 

analysis with a review of the general standards regarding the modification of a spousal 

support award. This Court has 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). Along with 

W.Va. Code § 48-8-103(b), which was relied on by the family court, W.Va. Code § 48-5­

701 [2001] provides statutory authority for a court to alter a spousal support award. It 

states, “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.” (Emphasis added). This Court 

addressed the purpose of a spousal support award in Syllabus Point 6 of Lucas v. Lucas, 

215 W.Va. 1, 592 S.E.2d 646 (2003), holding: “‘The sole purpose of an award of 

[spousal support] 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).” Moreover, as we held in Syllabus Point 

3 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987), “The party petitioning for a 

modification of the support provisions of a divorce decree bears the burden of showing a 

substantial change of circumstances.” With this background in mind, we turn to the 

parties’ arguments. 

Ms. Underhill’s first assignment of error is that the changes in the parties’ 

circumstances were “contemplated” at the time of the final divorce order and therefore 

should not have been considered by the family court in the modification proceeding. Ms. 

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Underhill also argues that while the changes in the parties’ circumstances were generally 

contemplated at the time of the divorce, “Mr. Underhill failed to prove a change in 

circumstances sufficient to warrant termination of his spousal support obligation.” 

Because Ms. Underhill simultaneously asserts that (1) the parties contemplated the 

changes in circumstances at the time of the divorce, and that (2) Mr. Underhill failed to 

prove there was a substantial change in the parties’ circumstances, we must make two 

inquiries. First, were there substantial changes in the parties’ circumstances, and, if so, 

were these changes contemplated by the parties at the time of the divorce. 

This Court has consistently maintained that “the primary standard to 

determine whether or not a trial court should modify an order awarding alimony is a 

substantial change of circumstances.” Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 

664, 671 (1983); see also Adkins v. Adkins, 208 W.Va. 364, 540 S.E.2d 581 (2000); Luff 

v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985). We have recognized the difficulty in 

precisely defining the phrase “substantial change in circumstances” but have stated that it 

“most often refers to circumstances which have substantially impacted upon the financial 

resources and economic needs of the parties subsequent to their divorce.” Clay v. Clay, 

182 W.Va. 414, 422, 388 S.E.2d 288, 296 (1989) (emphasis added). 

In the present case, Ms. Underhill’s net worth at the time of the divorce was 

approximately $2,300,000.00. When Mr. Underhill petitioned the family court for 

termination of his spousal support obligation in 2013, Ms. Underhill’s net worth had 

increased to approximately $6,000,000.00. Further, Ms. Underhill was earning 

$65,000.00 a year in 2013, whereas at the time of the divorce, the parties stipulated that 

she was expected to find employment that would pay her $40,000.00 annually. By 2013, 

Ms. Underhill’s net worth was greater than Mr. Underhill’s net worth.5 Based on these 

facts, it is clear that when Mr. Underhill filed his modification petition in 2013, there had 

been substantial changes in the parties’ circumstances that significantly “impacted upon 

the financial resources and economic needs of the parties.” 

Our second inquiry is whether the parties contemplated these changes at the 

time of their divorce. This Court has held that “[i]n 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, supra. The three 

substantial changes in circumstances raised by Mr. Underhill are (1) that he lost his job, 

(2) that Ms. Underhill’s net worth greatly increased due to the inheritance she received 

and to the “profit units” becoming valuable, and (3) that Ms. Underhill is earning 

$25,000.00 more per year than was anticipated at the time of the divorce. 

5 Ms. Underhill’s brief to this Court notes that Mr. Underhill’s net worth in 2015 is 

“in excess of $5,000,000.00.” Ms. Underhill does not dispute that her net worth is 

approximately $6,000,000.00. 

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Mr. Underhill lost his job in 2013. The parties contemplated this possibility 

at the time of their divorce. However, the final divorce order states that if Mr. Underhill 

were to lose his job, he could seek a modification of the spousal support obligation during 

the period when his obligation was otherwise non-modifiable (the first eighteen months 

after the divorce). Therefore, although contemplated by the parties, this change in 

circumstance weighs in favor of permitting a modification of the spousal support 

obligation because the final divorce order expressly permits such a modification: 

“Petitioner’s obligation . . . is non-modifiable for a period of eighteen (18) months of the 

thirty–six (36) unless Petitioner loses his current employment and is unable to find 

commensurate employment within 90 days, at which time Petitioner may file a motion 

for a modification[.]” 

The second change in the parties’ circumstances raised by Mr. Underhill is 

that Ms. Underhill’s net worth increased from $2,300,000.00 to approximately 

$6,000,000.00 through an inheritance and through the “profit units” becoming valuable. 

At the time the final divorce order was entered, both parties anticipated receiving an 

inheritance at some future date. While a potential inheritance was generally 

contemplated, the spousal support provision contained in the final divorce order does not 

address either party receiving an inheritance, nor does it exclude a potential inheritance 

from being considered during a future modification proceeding. Similarly, neither party 

knew whether the “profit units” received by Ms. Underhill at the time of the divorce 

would produce value. The value of the “profit units” was contingent on whether Mr. 

Underhill’s private employer would go public. When the parties divorced in 2011, it was 

unknown if or when this event would occur. 

Finally, it is undisputed that the spousal support provision contemplated 

that Ms. Underhill would find employment that was expected to pay her $40,000.00 

annually. By 2013, Ms. Underhill was earning substantially more than was anticipated at 

the time of the divorce—she was earning $65,000.00 a year. 

Based on the foregoing, we conclude that there were substantial changes in 

the parties’ circumstances and that these changes were not reasonably expected by the 

parties at the time of their divorce. These changed circumstances were highly relevant to 

the family court’s analysis of the parties’ financial resources. We therefore find that the 

family court did not abuse its discretion by considering the changes in circumstances 

raised by Mr. Underhill. 

The second error raised by Ms. Underhill is that the family court erred by 

considering her increased net worth during the modification proceeding. Ms. Underhill 

asserts that the spousal support provision contained in the final divorce order precludes 

consideration of her financial needs and monthly expenses in a modification proceeding. 

Ms. Underhill argues that because her financial needs should not have been considered, 

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the family court erred by finding that her increased net worth ($2,300,000.00 at the time 

of the divorce to $6,000.000.00 in 2013) constituted a substantial change in circumstance. 

The spousal support provision contains one sentence addressing the parties’ 

monthly expenses and financial needs. It states, “For purposes of determining the 

amounts of alimony the parties have not stipulated to either party’s monthly expenses or 

financial needs.” Ms. Underhill argues that this sentence precludes her increased net 

worth from being considered in a subsequent modification proceeding. We disagree. 

Neither this sentence, nor any other part of the spousal support provision, contains any 

language limiting consideration of Ms. Underhill’s financial resources during a 

subsequent modification proceeding. The spousal support provision provides only one 

restriction on modification—it states that the first eighteen months of the agreement were 

non-modifiable unless Mr. Underhill lost his job during that period. The spousal support 

provision does not restrict either party from raising the financial resources of the other 

party in a subsequent modification proceeding. Rather, the spousal support provision 

contains the broad, general statement that the obligation was modifiable by either party 

after eighteen months: “After the eighteen (18) months this amount is modifiable by 

either party upon a proper Motion to the Court.” We therefore find that the family court 

did not abuse its discretion by considering Ms. Underhill’s increased net worth. 

Ms. Underhill also argues that the family court erred by not considering Mr. 

Underhill’s gross income from sources other than his former employer. We agree with 

Ms. Underhill that the family court should have considered Mr. Underhill’s income from 

sources other than his former employer. In Syllabus Point 2 of Yanero v. Yanero, 171 

W.Va. 88, 297 S.E.2d 863 (1982), this Court explained that a court in a spousal support 

modification proceeding should “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 [spousal support] to be awarded in a modification 

proceeding.” However, because we determined that the family court did not err by 

considering Ms. Underhill’s increased net worth, we find that, under the facts of the 

instant case, the family court’s failure to consider Mr. Underhill’s income from sources 

other than his former employer was harmless error. Ms. Underhill asserts that when 

considering those other sources of income, Mr. Underhill’s net worth is approximately 

$5,000,000.00. By comparison, Ms. Underhill’s net worth is approximately 

$6,000,000.00. Therefore, even if the family court had considered Mr. Underhill’s gross 

income from sources other than his former employer, its ultimate determination would 

not have changed because its ruling was largely predicated on Ms. Underhill’s need for 

spousal support having decreased due to her increased net worth. “‘The sole purpose of 

an award of [spousal support] 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).” Syllabus Point 6, Lucas v. 

Lucas, supra. 

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The final issue we address is Mr. Underhill’s cross-assignment of error in 

which he asserts that the family court erred by failing to completely terminate his spousal 

support obligation. The family court explained its ruling to modify the spousal support 

obligation as follows: “The court further finds that while [Mr. Underhill] lost his 

employment, he, nonetheless, is still receiving earnings from that employment[.]” The 

circuit court’s order affirming the family court’s ruling states, “the Court cannot find that 

the family court abused its discretion in modifying [Mr. Underhill’s] spousal support 

obligation to [Ms. Underhill] but not completely terminating said spousal support.” 

Our standard of review for this issue is the same one applied by the circuit 

court—abuse of discretion. In discussing the application of the abuse of discretion 

standard, this Court has consistently stated that under such standard, “we will not disturb 

a . . . court’s decision unless the . . . court makes a clear error of judgment or exceeds the 

bound of permissible choices in the circumstances.” Wells v. Key Commc’ns, L.L.C., 226 

W.Va. 547, 551, 703 S.E.2d 518, 522 (2010) (citation omitted). This Court has 

invariably stated that “[u]nder abuse of discretion review, we do not substitute our 

judgment for the [lower] court’s.” State v. Taylor, 215 W.Va. 74, 83, 593 S.E.2d 645, 654 

(2004) (Davis, J., dissenting) (citing Burdette v. Maust Coal & Coke Corp., 159 W.Va. 

335, 342, 222 S.E.2d 293, 297 (1976)). Thus, the family court’s ruling is entitled to 

significant deference. Absent an abuse of discretion, this Court must refrain from 

substituting its judgment for that of the family court, even if this Court might have 

decided a case differently. 

In the present case, we do not find that the family court abused its 

discretion by modifying, rather than completely terminating, Mr. Underhill’s spousal 

support obligation. The family court set forth a detailed order explaining the changed 

circumstances of the parties and explaining its reasons for modifying the spousal support 

obligation. Under W.Va. Code § 48-5-701, the family court was authorized to modify the 

spousal support obligation “as the circumstances of the parties may require.” The family 

court noted that while Mr. Underhill lost his job in 2013, he was going to receive 

substantial income from his former employer until March 2015.6 Because Mr. Underhill 

would continue to receive this substantial compensation from his former employer until 

March 2015, the family court determined that he should continue to make spousal support 

payments until that date. After review, we find no abuse of discretion in the family 

court’s ruling. We consequently affirm the decision of the family court, as adopted by 

the lower court. 

For the foregoing reasons, we affirm the circuit court’s September 11, 

2014, order. 

6 The family court stated that between March 1, 2014, and March 31, 2015, Mr. 

Underhill “will receive a total of $838,628.00” from his former employer. 

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Affirmed. 

ISSUED: November 9, 2015 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

CONCURRING AND WRITING SEPARATELY: 

Justice Robin Jean Davis, joined by Chief Justice Workman: 

In this case, the majority has affirmed the circuit court’s modification of 

alimony. I agree with the majority’s conclusions under the current factual circumstances 

presented. I write separately to highlight the fact that, while the alimony, also commonly 

referred to as spousal support, in this case has been suspended as of April 1, 2015, the 

family court retains continuing jurisdiction over this matter until Mrs. Underhill reaches 

the age of sixty-six and one half. In other words, either party can, at some point in the 

future before Mrs. Underhill attains the requisite age, petition the family court for 

modification of spousal support in the event that the circumstances of the parties so 

require. See W. Va. Code § 48-5-701 (2001) (Repl. Vol. 2014) (“After the entry of a 

final divorce order, the court may revise the order concerning spousal support . . . and 

enter a new order concerning the same, as the circumstances of the parties may require.”). 

See also Douglas v. Douglas, 171 W. Va. 162, 163, 298 S.E.2d 135, 136-37 (1982) (per 

curiam) (“Our general rule is that the circuit court which grants a divorce is vested by 

statute with continuing subject-matter jurisdiction to modify or alter its original order as 

to alimony . . . as the changed circumstances of the parties . . . may require.” (citations 

omitted)). 

Contrary to the argument of Mrs. Underhill, that no modification could be 

had unless Mr. Underhill’s annual income from any source fell below $450,000.00, and 

Mr. Underhill’s argument, that his spousal support obligation should be completely 

terminated (which would necessarily foreclose modification), there is nothing in this case 

to preclude a future modification under the appropriate circumstances. In this regard, the 

Legislature has expressly declared that 

[a]ny award of periodic payments of spousal support shall be deemed to be 

judicially decreed and subject to subsequent modification unless there is 

some explicit, well expressed, clear, plain and unambiguous provision to 

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the contrary set forth in the court-approved separation agreement or the 

order granting the divorce. . . . 

W. Va. Code § 48-6-201(b) (2001) (Repl. Vol. 2014). The final order granting spousal 

support in this case contained such an “explicit, well expressed, clear, plain and 

unambiguous provision” restricting modification. W. Va. Code § 48-6-201(b). However, 

that provision applied only during the first eighteen months during which spousal support 

was paid: 

Petitioner’s obligation of Ten Thousand Dollars ($10,000.00) per month is 

non-modifiable for a period of eighteen (18) months . . . unless Petitioner 

loses his current employment and is unable to find commensurate 

employment within 90 days, at which time Petitioner may file a motion for 

modification . . . . After the eighteen (18) months[,] this amount is 

modifiable by either party upon a proper Motion to the Court. 

(Emphasis added). The foregoing language is clear in stating that, after the expiration of 

eighteen months, either party could seek modification by proper motion. 

Mrs. Underhill also is mistaken in her belief that, in considering any 

petition for modification, the family court is precluded from considering either party’s 

monthly expenses or financial needs. In this regard, the final order awarding spousal 

support simply acknowledged that, “[f]or purposes of determining the amounts of 

alimony[,] the parties have not stipulated to either party’s monthly expenses or financial 

needs.” The parties’ failure to stipulate their monthly expenses or financial needs simply 

does not prohibit consideration of such factors in connection with a petition for 

modification. Indeed, the fact that a petition for modification is proper only upon a 

substantial change of circumstances necessitates a consideration of those changed 

circumstances in evaluating whether and to what extent a modification is warranted. See 

Metz v. Metz, 217 W. Va. 468, 473, 618 S.E.2d 477, 482 (2005) (per curiam) (“This 

Court has also consistently held that the party seeking the modification has the burden of 

showing that a substantial change of circumstances occurred.” (citations omitted)); 

Hickman v. Hickman, 210 W. Va. 608, 610, 558 S.E.2d 607, 609 (2001) (per curiam) 

(“Our cases have held that a trial court may modify a divorce decree when there has been 

a substantial change of circumstances which warranted a modification.” (citations 

omitted)); Goff v. Goff, 177 W. Va. 742, 745, 356 S.E.2d 496, 499 (1987) (“The general 

rule is that, upon a showing of substantially changed circumstances, it is within the sound 

discretion of the trial court to award or modify the amount of child support or alimony 

payments.” (citations omitted)). See also W. Va. Code § 48-5-701 (“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.”). 

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Finally, the need to consider the particular circumstances of the parties in 

considering modification of an award of spousal support was recognized when this Court 

observed that, 

[i]n fixing the amount of spousal support, if any, to be ordered where 

modification is requested . . . the courts must also be guided by the specific 

list of factors set forth by the West Virginia Legislature for determining 

spousal support in the original instance, pursuant to West Virginia Code § 

48-6-301 (2001) [(Repl. Vol. 2014)]. 

Lucas v. Lucas, 215 W. Va. 1, 8, 592 S.E.2d 646, 653 (2003) (footnote omitted).1 Thus, 

for the forgoing reasons, I respectfully concur. I am authorized to state that Chief Justice 

Workman joins me in this concurring opinion. 

1

The statutory list of factors referred to in Lucas v. Lucas, 215 W. Va. 1, 8, 592 

S.E.2d 646, 653 (2003), states, as follows: 

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 

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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 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; 

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(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. 

W. Va. Code § 48-6-301(b) (2001) (Repl. Vol. 2014). 

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