IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term 

No. 14-0429 

CAROL ELAINE WARREN,
 

Respondent Below, Petitioner
 

v.
 

TODD E. GARLAND,
 

Petitioner Below, Respondent
 

FILED
 

April 10, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Webster County
 

Honorable Jack Alsop, Judge
 

Civil Action No. 12-D-60
 

REVERSED AND REMANDED WITH DIRECTIONS
 

Submitted: March 10, 2015
 

Filed: April 10, 2015
 

Brittany Ranson Stonestreet, Esq. James Wilson Douglas, Esq. 

Lyne Ranson Law Offices, PLLC Jared S. Frame, Esq. 

Charleston, West Virginia James Wilson Douglas, LC 

Attorney for Carol Elaine Warren Sutton, West Virginia 

Attorneys for Todd E. Garland 

JUSTICE LOUGHRY delivered the Opinion of the Court.
 

CHIEF JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
 
 

 

 

 

 

 

 

 

 

 

 

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. “Under the clearly erroneous standard, if the findings of fact and the 

inferences drawn by a family [court judge] are supported by substantial evidence, such 

findings and inferences may not be overturned even if a circuit court may be inclined to make 

different findings or draw contrary inferences.” Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195 

W.Va. 384, 465 S.E.2d 841 (1995). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice: 

The petitioner and respondent below, Carol Elaine Warren, appeals an order 

of the Circuit Court of Webster County reversing a decision of the Family Court of Webster 

County concerning the amount and duration of spousal support she was awarded in her 

divorce from the respondent and petitioner below, Todd E. Garland. In this appeal, Ms. 

Warren contends that the circuit court erred by finding that a future increase in her spousal 

support award was impermissible and that such award should terminate in three years. Upon 

consideration of the parties’ briefs and oral arguments, the submitted record, and the 

pertinent authorities, we find that the circuit court erred in modifying the spousal support 

award granted to Ms. Warren by the family court. Accordingly, the final order is reversed, 

and this case is remanded with directions that the family court order be reinstated. 

I. Factual and Procedural Background 

The parties were married on February14, 1984, and theyseparated on February 

17, 2012, after twenty-eight years of marriage.1 At the time of the parties’ divorce, Mr. 

Garland was fifty-one years old and Ms. Warren was sixty-two years old. After the parties 

separated, Ms. Warren’s mental health began to deteriorate due solely to the fact that her long 

term marriage was ending. Suffering from severe depression, Ms. Warren began to have 

1

The parties had no children together. Theyjointlyraised Ms. Warren’s daughter from 

her previous marriage from the ages of six to fifteen when she left their household. 

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suicidal ideation. As a result, she was admitted to a psychiatric hospital on three separate 

occasions between April 2012 and August 2012. Because of her depression, Ms. Warren 

was unable to continue her employment with the Ohio ValleyEnvironmental Coalition where 

she worked as a project coordinator and lobbyist. She voluntarily elected to collect early 

social security benefits at age sixty-two.2 

Mr. Garland filed a petition for divorce on June 21, 2012. At a temporary 

hearing on September 20, 2012, Mr. Garland was ordered to pay Ms. Warren spousal support 

in the amount of $350.00 per month beginning October 1, 2012. Subsequently, on January 

24, 2013, a bifurcated divorce order was entered that incorporated the parties’ agreement on 

all issues except for spousal support and attorney’s fees. The parties agreed to a distribution 

of their marital assets that was close to “fifty-fifty,” with Mr. Garland assuming sixty to 

sixty-five percent of the marital debt and being compensated as a result with a greater share 

of the marital property, including the debt-free marital home and retirement benefits. 

The main source of contention between the parties was the spousal support 

sought by Ms. Warren. Mr. Garland argued that Ms. Warren should return to work as she 

had retired a few years prematurely at the age of sixty-two. When Ms. Warren was 

employed, her monthly net income was approximately $2,350.00. Her income was reduced 

2

Ms. Warren has not been determined to be disabled by any government entity. 

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to $888.00 per month when she began collecting her social security benefits. Ms. Warren 

submitted evidence reflecting monthly expenses averaging $2,662.58, although this amount 

did not include the estimated cost of health insurance that she needed to obtain following the 

divorce and her retirement. Mr. Garland, who is employed as Director of the Department of 

Social Ministries for the Archdiocese of Wheeling-Charleston, reported a monthly net 

income of $3,250.00. His monthly expenses were estimated to be $2,740.00. His biggest 

expense was his monthly payment on the marital credit card debt, which he assumed, in the 

amount of $750.00. Mr. Garland testified that the required monthly payment on the credit 

card debt was only $250.00, but he was voluntarily paying an extra $500.00 each month in 

order to reduce the balance as quickly as possible.3 

At the final evidentiary hearing in early 2013, Ms. Warren called her treating 

psychologist, Dr. Lisa Ryan, and former boss, Janet Keating, as witnesses. Dr. Ryan testified 

that Ms. Warren had been diagnosed with major depressive disorder and was unable to return 

to work because of her mental health issues. She further testified that the stress of a job was 

too much for Ms. Warren to cope with at that time. Ms. Keating testified that she began 

noticing physical and emotional changes in Ms. Warren when the parties separated. She also 

stated that she could not rehire Ms. Warren as she had employed someone else in her 

3

The evidence in the record indicates that the credit card balance was almost 

$9,000.00 at the time the parties separated. 

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position. Finally, based on her own observations, Ms. Keating opined that Ms. Warren was 

not mentally able to return to work. 

On March 5, 2013, the family court entered an order awarding spousal support 

to Ms. Warren in the amount of $350.00 per month until she reaches the age of sixty-five. 

The court further ordered: 

When [Ms. Warren] reaches age 65, a time at which the parties 

could have reasonably anticipated that she would retire in any 

event, the alimony should increase because at that time [Mr. 

Garland] will reasonably be anticipated to have reduced his 

monthly indebtedness assumed in the equitable distribution 

herein. In addition, he will have retired the award of attorney’s 

fees set forth below. The combination of the retirement of debt 

and attorney’s fees increases [Mr. Garland’s] excess net income 

from which an enhanced award of alimony can be made, 

particularly at a time when [Ms. Warren’s] income will only be 

Social Security benefits. At age 65, alimony should increase to 

$650.00 per month, and it should continue until [Mr. Garland] 

reaches his normal retirement age of 67, at which time alimony 

should terminate.4 (footnote supplied) 

With respect to the attorney’s fees requested by Ms. Warren, the family court 

ordered Mr. Garland to pay her attorney $3,600.00 at the rate of $100.00 a month until the 

amount was paid in full. In awarding this amount, the court considered Mr. Garland’s ability 

4

The order also provided that the spousal support would terminate sooner if Ms. 

Warren remarried, died, or became “involved in a relationship akin to marriage without the 

formal recognition thereof.” 

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to pay in light of the spousal support granted to Ms. Warren, as well as the disparity in the 

parties’ incomes and the fact that the only issue litigated was spousal support. Following 

entry of this order, Mr. Garland appealed the decision to the Circuit Court of Webster 

County. 

On July 11, 2013, the circuit court entered an order reversing the decision of 

the family court. The circuit court concluded that the increase of the spousal support award 

to $650.00 per month when Ms. Warren turned sixty-five was improper pursuant to this 

Court’s decision in Mayle v. Mayle, 229 W. Va. 179, 727 S.E.2d 855 (2012), because it was 

solely based on speculation that Mr. Garland would have more income available at that time. 

The circuit court further stated: 

[E]ven more perplexing is the finding of the Family Court that 

even though [Ms. Warren] will have reduced her medical 

expenses once she is eligible for Medicare, [Mr. Garland’s] 

spousal support obligation still almost doubles (from 

$350.00/month to $650.00/month) when [Ms. Warren] reaches 

the age of 65. In short, there is no correlative findings, however 

speculative, about the need of [Ms. Warren] when she turns 65 

years of age, nor is there any finding regarding her potential 

income, if any, at that point in time, as well. 

The circuit court also found that the increase in Mr. Garland’s spousal support obligation 

when Ms. Warren reaches the age of sixty-five, was as arbitrary and capricious as the 

termination of that obligation when he reaches the age of sixty-seven. The circuit court 

concluded that the future increase in the amount of the spousal support was a “preemptive 

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modification without sufficient evidence” and set aside the award effective the first day of 

the month following Ms. Warren’s sixty-fifth birthday. 

As to the award of attorney’s fees, the circuit court found that the family court 

had failed to consider all of the factors required by this Court’s decision in Banker v. Banker, 

196 W.Va. 535, 474 S.E.2d 465 (1996).5 Thus, the circuit court set aside the attorney’s fees 

award and remanded the case to the family court to complete the analysis required by Banker. 

On October 7, 2013, the family court entered an order that once again granted an attorney’s 

fees award of $3,600.00 to be paid by Mr. Garland under the same terms set forth in the 

previous order but included an analysis of all of the Banker factors as directed by the circuit 

court. On March 26, 2014, the circuit court entered its final order which stated that all issues 

had been resolved, and the matter was now mature for consideration by this Court. 

Thereafter, Ms. Warren filed her appeal. 

5

Syllabus point four of Banker provides, in pertinent, part, 

In determining whether to award attorney’s fees, the family 

[court judge] should consider a wide array of factors including 

the party’s ability to pay his or her own fee, the beneficial results 

obtained by the attorney, the parties’ respective financial 

conditions, the effect of the attorney’s fees on each party’s 

standard of living, the degree of fault of either party making the 

divorce action necessary, and the reasonableness of the 

attorney’s fee request. 

Id., 196 W.Va. at 538, 474 S.E.2d at 468. 

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II. Standard of Review 

Our standard of review for matters arising in divorce cases is well established. 

We held in the syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004): 

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. 

With this standard in mind, we consider the parties’ arguments. 

III. Discussion 

Ms. Warren challenges the circuit court’s decision with respect to the amount 

and duration of her spousal support award.6 She contends that the circuit court erred in 

finding that the prospective increase in her spousal support was based on mere speculation 

regarding Mr. Garland’s future ability to pay and, as such, was a preemptive modification 

without sufficient evidence, as proscribed by Mayle. She argues that Mayle does not apply 

in this instance because the increase in the spousal support award was based on concrete 

evidence and foreseeable events that would substantially reduce Mr. Garland’s monthly 

indebtedness and, in turn, increase his ability to pay. In particular, Ms. Warren submits that 

the family court properly relied upon the fact that within three years, Mr. Garland will have 

6

The award of attorney’s fees is not an issue in this appeal. 

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paid off, or least substantially reduced, the marital credit card debt and the attorney’s fees 

award. As a result, more money will be available to him to pay the increased spousal support 

award. She further argues that the circuit court abused its discretion by terminating the 

spousal support award after three years without making specific findings to support that 

decision. 

Conversely, Mr. Garland contends that the circuit court did not err in reversing 

the family court’s decision with respect to the amount and duration of the spousal support 

award because it was based on speculation regarding the respective financial standings of the 

parties. While Mr. Garland acknowledges that he will have paid off certain debts in three 

years, he argues that it was error for the family court to assume that he will be in a better 

financial position at that time. In that regard, he points out that he could be laid off from 

work or develop a medical condition which would have an impact on his ability to pay the 

increased spousal support award. Therefore, he maintains it is error to modify a spousal 

award based on future events that may or may not occur as this Court previously recognized 

in Mayle. 

In Mayle, the petitioner wife had worked during the parties’ earlymarried years 

while the respondent husband attended medical school. At the time of the divorce, the wife 

had been a full-time homemaker and caretaker for the parties’ children for several years and 

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the husband, a practicing ophthalmologist, was generating a yearly income in excess of 

$300,000.00. Finding that the wife was entitled to permanent spousal support because of the 

length of the marriage and the respective financial circumstances and needs of the parties, 

the family court granted an award of $5,500 per month for ten years, after which the amount 

would be reduced to $1,500.00 per month. In considering the wife’s challenge to the 

prospective reduction of spousal support, this Court found that the family court’s decision 

to reduce the award after ten years was based on pure conjecture that the wife would return 

to her hometown and assume a greater role in the operation of her family’s business. We 

noted there was no testimony or other evidence elicited during the proceedings below that 

supported the family court’s speculation about the wife’s future actions. While recognizing 

that there could be a reason for reducing a spousal support award after a specified period of 

time, this Court concluded in Mayle that there was simply no evidence to support such a 

time-based reduction in that case. Id., 229 W.Va. at 185-86, 727 S.E.2d at 861-62. 

Having reviewed the record, we find that the instant case is factually distinct 

from Mayle because there was sufficient evidence to support the family court’s decision to 

increase the spousal support in three years. As noted by Ms. Warren, the family court based 

its decision to increase the spousal support award on the fact that Mr. Garland will have paid 

the attorney’s fees award in full by that time and will have substantially reduced, if not 

eliminated, the marital credit card debt. Contrary to the finding of the circuit court, the 

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family court was not merely speculating that Mr. Garland will have paid the attorney’s fees 

in three years. Because he was ordered to pay the $3,600.00 award at “the minimum rate of 

$100.00 per month until paid in full,” Mr. Garland will have completely paid the fees before 

the spousal support award increases. In addition, Mr. Garland has acknowledeged that he 

will have eliminated some, if not all, of the marital credit card debt he assumed in the 

equitable distribution that was approved by the family court by that time because he has 

voluntarily undertaken an extra payment of $500.00 per month in an effort to pay off the debt 

as soon as possible. Importantly, Mr. Garland is not required to pay an additional $500.00 

per month. The evidence indicates that the minimal credit card payment due is 

approximately $250.00. As such, he has an additional $500.00 of monthly disposable 

income at the present time but for the voluntarily increased credit card payment. 

Moreover, Mr. Garland currently has $510.00 in net income above his current 

expenses, which include the $750.00 credit card payment. Therefore, the family court was 

not speculating when it concluded that Mr. Garland would have more income available to 

pay an enhanced spousal support award in three years as he already has a present ability to 

make the $650.00 spousal support payment. It is clear that the family court recognized the 

efforts Mr. Garland was making to reduce his indebtedness and, accordingly, delayed 

imposition of the increased spousal award to ease his burden in that regard. In sum, we find 

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that the family court had sufficient evidence upon which to base the prospective increase of 

the spousal support award,7 and the circuit court erred in concluding otherwise.8 

We further find that the circuit court erred by reducing the duration of the 

spousal support award to just three years. In reaching that decision, the circuit court simply 

concluded that the family court’s decision to extend spousal support until Mr. Garland 

reached the age of sixty-seven was “arbitrary and capricious.” The record, however does 

not support that conclusion. As Ms. Warren points outs, the family court made extensive 

findings pursuant to West Virginia Code § 48-6-301(b) (2014) in support of its determination 

regarding both the amount and duration of the spousal support award. 

West Virginia Code § 48-6-301(b) sets forth a list of twenty factors that are to 

be considered in awarding spousal support.9 The family court order clearly shows that 

7

In the event that Mr. Garland has a change of circumstances in the future, he can file 

a motion to modify the spousal support award. See W.Va. Code § 48-16-211 (2014) 

(conferring continuing exclusive jurisdiction on familycourt to modifyspousal support order 

throughout existence of support obligation). 

8

The circuit court also found that Ms. Warren would not have a need for an increase 

in alimony in three years because at that time, she would be eligible for Medicare, which 

would reduce her health care costs. However, the record shows that the cost of health 

insurance was not included in Ms. Warren’s submission of her monthly expenses as she had 

not obtained a policy at that juncture and, accordingly, it was not a factor in the family 

court’s calculation of the appropriate amount of spousal support. 

9

West Virginia Code § 48-6-301(b) provides: 

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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 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 

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consideration was given to all of the statutory factors. Ultimately, the family court 

determined that Ms. Warren was entitled to spousal support until Mr. Garland reaches the age 

of sixty-seven based on the length of the parties’ marriage, the disparity in their incomes, Ms. 

Warren’s health status in comparison to that of Mr. Garland,10 and Ms. Warren’s need to 

obtain health insurance. The order indicates that the spousal support award was not lessened 

nor increased because of the nearly equal equitable distribution of the parties’ marital assets 

that was previously approved. With regard to the education factor, it was noted that both 

parties have college degrees and that neither had any plans to seek further education. In 

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; 

(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. 

10The family court did not assign any fault to Mr. Garland for Ms. Warren’s mental 

health deterioration after the parties separated. 

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addition, both parties testified during the proceedings that they had jointly decided while they 

were married not to pursue additional educational opportunities because of their existing 

family and financial obligations. It was also noted that because the parties had no children 

together and neither would be taking care of any minor children, the factors that relate to 

child care or support were not relevant to the spousal support determination. Finally, the 

family court order indicates that no weight of any type was placed on the fault factor11 in 

making the award because neither party proved any fault for the dissolution of their marriage. 

Given the extensive findings made by the family court pursuant to West 

Virginia Code § 48-6-301(b), there was no basis for the circuit court to conclude that the 

family court’s decision with respect to the amount and duration of the spousal support award 

was arbitrary and capricious. As we have explained, “[u]nder the clearly erroneous standard, 

if the findings of fact and the inferences drawn by a family [court judge] are supported by 

substantial evidence, such findings and inferences may not be overturned even if a circuit 

court may be inclined to make different findings or draw contrary inferences.” Syl. Pt. 3, 

Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 386, 465 S.E.2d 841 (1995). Accordingly, we 

11See W.Va. Code § 48-8-104 (2014) (also requiring court to consider and compare 

fault or misconduct of either or both parties and effect of fault or misconduct as contributing 

factor to deterioration of marital relationship in determining whether to award spousal 

support and determining amount, if any, to be awarded). 

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find that the circuit court erred by setting aside and vacating the spousal support award 

effective the first day of the month following Ms. Warren’s sixty-fifth birthday. 

IV. Conclusion 

For the reasons set forth above, the final order of the Circuit Court of Webster 

County is reversed with respect to the award of spousal support, and this case is remanded 

for reinstatement of the March 5, 2013, order of the Family Court of Webster County with 

respect to the amount and duration of the spousal support award granted to Ms. Warren. 

Reversed and remanded with directions. 

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