Maynard, Justice dissenting:
In her brief submitted to this Court on December 13, 2002, Ms. Braley admits
that she and Mr. Hunt were divorced on May 12, 1989 and that “[t]he final order was silent
on the issue of alimony.” She also admits that “there was no record that a property settlement
agreement was ever filed with the court.” The plain and simple rule of law which was in
effect at the time the parties divorced states, “Where a final divorce decree made no award
of alimony, the divorce decree cannot be subsequently modified to grant alimony.” Syllabus,
Savage v. Savage, 157 W.Va. 537, 203 S.E.2d 151 (1974), overruled by Banker v. Banker,
196 W.Va. 535, 474 S.E.2d 465 (1996). In other words, neither party in this case was
granted alimony in the original divorce decree; therefore, the family law master and the
circuit court were without jurisdiction to later reconsider and award alimony to either party.
Under this set of facts, that should be the end of the story. However, the majority determined
that the law as it existed at that time does not apply. Consequently, that is not the end of the
story.
It was not until 1996, seven years after these parties divorced, that this Court revisited the issue of alimony and said,
Under W.Va.Code, 48-2-15(e) (1993), a circuit court has
jurisdiction to hear and rule upon a motion seeking modification
of a decree to include alimony, as the ends of justice may so
require, even though the decree previously denied alimony or
did not address the issue of alimony. To the extent that Savage
v. Savage, 157 W.Va. 537, 203 S.E.2d 151 (1974), and its
progeny are inconsistent, they are expressly overruled.
Syllabus Point 2, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996). Banker also
explicitly states that the new rule “is not to be applied retroactively.”
(See footnote 1)
Id., 196 W.Va. at 548,
474 S.E.2d at 478. Since the circuit court obviously lacked jurisdiction to reopen the issue
of alimony for the benefit of either party, the majority avoids its own law and affirms the
circuit court's award of alimony to Ms. Braley by stating that “nothing in Savage or Banker
operated to prohibit a party from voluntarily assuming the legally enforceable obligation of
paying spousal support, by agreeing to modify a prior divorce decree that was silent as to
spousal support.”
The uncontroverted fact is that Mr. Hunt did not enter into and sign an
agreement with Ms. Braley. The circuit court found that Ms. Braley submitted a petition and
order in 1991 purportedly signed by both parties seeking a modification of alimony. Unlike
the majority, I do not believe that a petition and order equal an agreement. But even if they
do, the circuit court concluded in its order that Roger Hunt did not sign the petition or the
order; his signatures were forged. The court nonetheless determined that since Mr. Hunt
abided by the “apparent[] agreement,” he was later estopped from denying that an agreement
existed. In her response filed on appeal, Ms. Braley admits that “[t]he purported signatures
of the petitioner on the petition . . . and on the agreed order. . . are not in the petitioner's
handwriting.” The fact is that no document exists that was signed by Mr. Hunt pursuant to
which he agreed to pay alimony to Ms. Braley for life. I am appalled that any court in this
State would make a life award to anyone based upon this set of facts.
A short, fair review of the facts in this case shows:
*No alimony was ordered when the final divorce order
was entered.
*No property settlement agreement was ever signed by
Mr. Hunt or filed with the court. Even the copy of the property
settlement agreement which was supposedly signed by both Ms.
Braley and Mr. Hunt in 1989, but admittedly was never filed,
contains no provision for alimony.
*The signatures of Mr. Hunt that appear on the petition
and court order are forged.
*There is no document signed by Mr. Hunt wherein he
agreed to pay alimony. None!
In spite of these uncontroverted facts, and in spite of the further fact that someone
perpetrated a deliberate fraud on the trial court by submitting admittedly forged documents,
this Court rewards that fraud by awarding alimony in the amount of $24,000 a year, for life!
Furthermore, this Court ruled that Ms. Braley “may re-present [her request to modify and
increase spousal support] to the lower court upon remand.” She may get more.
To add insult to injury, this huge award is made without the majority uttering
one word about the fraud on the court or about the forged court documents. Who forged
these documents? Shouldn't there at least be some inquiry? Apparently it is now permissible
to forge court orders with impunity. The last time I looked, forgery in this amount was a
serious felony. I wonder how many people are serving time in our penitentiary today for
forgery wherein the amount involved was much less than $24,000 a year. Try forging a
check for $24,000 and see if the courts wink at that. Yet, this Court winks at a forged court
order!
In sum, the facts do not support an award of alimony is this case, and, as outlined above, the law in existence when this divorce was granted prohibits alimony when not granted in the original decree. Nonetheless, based upon forged documents and the fact that Mr. Hunt gratuitously paid Ms. Braley $2,000 per month until May 1999, he must continue to pay at least that much as long as she lives.
Accordingly, I respectfully dissent from the majority opinion because, under
the facts and law presented here, I find no basis upon which to award alimony. I am
authorized to state that Justice Davis joins me in this dissent.