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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