Andrew Burgess v. Dawn Burgess (Judge White, dissenting)

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
December 4, 2025
ANDREW BURGESS,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-194 (Fam. Ct. Jefferson Cnty. Case No. FC-19-2011-D-456)

DAWN BURGESS,
Petitioner Below, Respondent

MEMORANDUM DECISION

Andrew Burgess (“Husband”) appeals the Family Court of Jefferson County’s April
14, 2025, final order reducing his spousal support obligation from $1,000 to $600 per
month. Dawn Burgess (“Wife”) responded in support of the family court’s decision. 1 No
reply was filed.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court’s decision but no
substantial question of law. For the reasons set forth below, a memorandum decision
vacating the family court’s decision and remanding the matter for further proceedings is
appropriate under Rule 21 of the Rules of Appellate Procedure.

By way of background, Husband and Wife were married on December 14, 1985,
and were divorced by final order entered on February 27, 2012. Regarding spousal support,
West Virginia Code § 48-6-301(b) (2018) provides a non-exclusive list of factors to be
considered by the family court. The family court found that the parties had been married
nearly twenty-five years, both parties were fifty-two years old, Husband was in good
health, Wife had diabetes, Wife earned $23,689 yearly as a school bus driver, and Husband
earned $80,000 annually as an electrician.2 Based on those factors, Husband was ordered
to pay Wife $1,000 per month in spousal support, effective February 1, 2012. Spousal
support would terminate upon the death of either party or Wife’s remarriage and was
subject to judicial modification.

1
Husband is represented by Frank M. Aliveto, Esq. Wife is represented by Cinda
L. Scales, Esq.
2
The spousal support factors are set forth in West Virginia Code § 48-6-301(b)
(2018).
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Husband timely paid his spousal obligation each month. On November 21, 2024, at
age sixty-five, Husband filed a motion to modify his spousal support obligation, wherein
he asserted that he had retired on October 31, 2024, and that his financial circumstances
had materially changed. On January 13, 2025, the parties appeared for the first hearing on
Husband’s motion. The court found that Husband had timely made all payments and owed
no arrears. Wife objected to the modification, and the family court granted discovery to
both parties.

The final hearing was held on March 27, 2025. Husband argued that the entirety of
his income was from a pension retirement that was previously divided by the court for
equitable distribution. Husband further argued that both parties’ retirement income should
be disregarded to prevent double-dipping. Wife argued that she hoped to retire soon and
would not be able to do so without Husband continuing to pay her spousal support. Both
parties argued that the other party’s budgets were inflated. The court made the following
findings of fact and conclusions of law:

• Since the entry of the final divorce order, Husband has paid $157,000 to
Wife in spousal support payments.
• Husband was sixty-five years old and retired on October 31, 2024.
• The parties were married for twenty-five years.
• After retirement, Husband earned $3,881.00 per month in retirement
income.
• Wife earned approximately $3,963 per month from both employment
income and retirement income.
• Husband resided with his new wife; Wife resided with her brother, who
will be collecting social security income soon.
• Husband paid Wife $27,000 at the time of divorce to equalize equitable
distribution.
• Husband had a heart condition and hip surgery; Wife had diabetes.
• Husband met his burden of proof, and his circumstances constitute a
substantial change in circumstances.
• Husband’s spousal support obligation was reduced from $1,000 per
month to $600 per month, effective April 1, 2025.

The final order was entered on April 14, 2025, and is the order from which Husband
now appeals. For these matters, we apply the following standard of review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review the
findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

2
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Husband asserts two assignments of error. First, Husband contends that
the family court erred and abused its discretion by failing to terminate his spousal support
obligation after he paid it for thirteen years, is now sixty-five years old, has retired, and
Wife now outearns him. Second, Husband asserts that all his monthly income derives from
retirement assets that were already divided in equitable distribution. We find that
Husband’s second assignment of error has merit.3 West Virginia Code § 48-6-301(b)(5)
states as follows:

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.

Here, Husband presented evidence and testimony that his current income is from post-
divorce earnings from property that had already been equitably distributed during the
parties’ divorce proceedings. However, the family court failed to make specific findings in
accordance with West Virginia Code § 48-6-301(b)(5) regarding whether the failure to
consider said income would result in substantial inequity. See Eldon J.H. v. Mary M.H.,
No. 13-0177, 2014 WL 211959 (W. Va. Jan. 17, 2014) (memorandum decision)
(remanding to the circuit court for a specific factual analysis on West Virginia Code § 48-
6-301(b)).4 The Supreme Court of Appeals of West Virginia has remanded insufficient
orders, finding that:

3
Due to our decision below to remand for a better order, we find it unnecessary to
address Husband’s first assignment of error.
4
The dissent highlights John M. v. Sharon M., No. 21-0377, 2022 WL 3905093 (W.
Va. Sept. 21, 2022) (memorandum decision) to distinguish Eldon J.H. We note that the
family court, circuit court, and Supreme Court of Appeals of West Virginia in the John M.
decision found that no substantial change in circumstances was present to warrant
modifying support. In the present case, Wife conceded and the family court found a
substantial change in circumstances had occurred and warranted reducing spousal support.
We are bound to apply the express language of West Virginia Code § 48-6-301(b)(5),
which mandates that a family court shall not consider income generated by property
allocated to Husband through equitable distribution unless it makes “specific findings that
a failure to consider income from the allocated property would result in substantial
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to properly review an order of a family court, “[t]he order must be sufficient
to indicate the factual and legal basis for the [family court]’s ultimate
conclusion so as to facilitate a meaningful review of the issues presented.”
Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 (1996); see
also Nestor v. Bruce Hardwood Flooring, L.P., 206 W. Va. 453, 456, 525
S.E.2d 334, 337 (1999) (“[O]ur task as an appellate court is to determine
whether the circuit court's reasons for its order are supported by the record.”).
“Where the lower tribunals fail to meet this standard—i.e. making only
general, conclusory or inexact findings—we must vacate the judgment and
remand the case for further findings and development.” Province, 196 W.
Va. at 483, 473 S.E.2d at 904.

Collisi v. Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-55 (2013).

Accordingly, we vacate the family court’s April 14, 2025, order and remand this
matter to the Family Court of Jefferson County with directions to issue a new order with
sufficient findings of fact and conclusions of law, which will facilitate meaningful appellate
review should either party elect to file a new appeal. We further direct that the April 14,
2025, order shall be considered a temporary order pending resolution of the matter on
remand.

Vacated and Remanded, with Directions.

ISSUED: December 4, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear

DISSENTING:

Judge S. Ryan White

WHITE, J., dissenting:

I dissent from the majority’s decision because the family court’s April 14, 2025,
order not only meets the requirements of West Virginia Code § 48-6-301(b)(5) (2018) but

inequity.” A cursory review of the family court’s order below reveals that no such specific
findings were made, and a new order on this issue is necessary for appellate review.
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also contains sufficient findings of fact and conclusions of law to allow this Court to
conduct meaningful appellate review. The majority contends that the order is insufficient
for meaningful appellate review because the family court did not include in its order a
finding explicitly stating that the failure to consider Husband’s retirement income for the
purposes of determining his ability to pay spousal support would result in “substantial
inequity.” A review of the order, the record on appeal, and the applicable law demonstrate
otherwise.

As stated in the order on appeal, the family court made six detailed findings of fact
“pursuant to West Virginia Code § 48-6-301” in which it addressed the relevant factors it
is required to consider in awarding spousal support. These findings demonstrated that the
court considered the parties’ monthly incomes, including Husband’s retirement, or pension
benefit, income which was allocated to him in the parties’ divorce, sources of income,
household income/contributions of others, budgets, and financial need. The family court
also made detailed findings regarding the parties’ employment status, health, and the length
of their marriage. The family court even included the following finding directly related to
West Virginia Code § 48-6-301(b)(5) (2018):

That the Respondent argued that the entirety of his income is pension
retirement income, which was subject to equitable distribution, and
previously divided by this Court during the Final Hearing. Therefore, the
Respondent contends, now counting [his] retirement income against him for
spousal support purposes amounts to “double dipping” and that both
parties[’] retirement incomes should be disregarded, to the extent that there
[sic] were previously considered and distributed by the Court.

The family court also included in its order a conclusion of law acknowledging that
the law requires the court 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” and the
factors listed in West Virginia Code § 48-6-301(b)(1)-(20) (2018). Based upon its findings
and conclusions, the family court concluded that Husband met his burden of proving a
substantial change of circumstances had occurred and granted Husband’s petition for
modification, in part, reducing his spousal support obligation from $1,000.00 per month to
$600.00 per month. Husband, however, had sought the termination of his spousal support
obligation.

In addition to language in West Virginia Code § 48-6-301(b)(5) (2018), the majority
relies on Eldon J.H. v. Mary M.H., No. 13-0177, 2014 WL 211959 (W. Va. Jan. 17, 2014)
(memorandum decision) in support of its decision. However, the facts of Eldon J.H. are
significantly different from those of the instant appeal. In that case, the petitioner argued
“that the family court failed to consider, note, discuss, or analyze the income generated by
the assets awarded to [respondent] as well as the loss of income to [petitioner] in violation

5
of West Virginia Code § 48-6-301(b)(5) . . . .” In reviewing the order on appeal, the
Supreme Court of Appeals of West Virginia (“SCAWV”) found that “the family court’s
final order simply states that ‘based on the factors as set forth in West Virginia Code § 48-
6-301 . . . the [respondent] should be awarded spousal support from [petitioner] until the
death of [respondent], the remarriage of [respondent] or the death of [petitioner].’” The
SCAWV further found that in the circuit court’s order affirming that of the family court,
the circuit court had merely found that the “[f]amily [c]ourt judge ‘considered the
appropriate statutory factors’ and did not ‘abuse her discretion.’” Accordingly, the
SCAWV concluded that “the lower courts failed to appropriately analyze and apply the
necessary factors” and reversed the circuit court’s order and remanded the case to the
circuit court “for a specific factual analysis” pursuant to West Virginia Code § 48-6-301(b).

The orders on appeal in Eldon J.H. were skeletal, at best, and contained no analysis
of the West Virginia Code § 48-6-301(b) factors, unlike the family court’s order in the
instant appeal. However, in John M. v. Sharon M., No. 21-0377, 2022 WL 3905093 (W.
Va. Sept. 21, 2022) (memorandum decision), the SCAWV faced facts and a family court
order more like that on appeal in this matter.

In John M., the parties divorced in 1999 following a twenty-seven-year marriage,
and petitioner was ordered to pay respondent spousal support in the amount of $300.00 per
month “beginning on June 1, 1999, and continuing until further order of the court, the death
of either party, or the wife’s remarriage.” In 2019, the petitioner, who was then remarried,
retired and filed a “motion to eliminate spousal support” claiming “the parties’ divorce
decree did not allow spousal support to be taken from [petitioner’s] separate property, and
that [respondent’s] portion of his pension [was] more than [respondent’s] spousal support
payment.”5 The respondent, also retired by that time, argued that there had been no change
in circumstances; therefore, the petitioner’s motion should be denied.

The family court considered both parties’ gross incomes, expenses, the fact that the
petitioner shared expenses with his wife, financial need, assets, and ability to pay and
included its findings as to these factors in its final order. The family court also included
findings that considered these factors, but counting only one-half of the petitioner’s income
from his pension benefits and ignoring the respondent’s pension benefit.6 The court found
that “[u]nder both scenarios, [respondent] [was] still in need of spousal support and
[petitioner] [had] more than enough resources from his income to pay spousal support.”
The family court also found that,

5
In the parties’ divorce, the family court awarded respondent a 44.5% share of
petitioner’s pension benefits earned during their marriage.

The petitioner continued to work following the divorce; therefore, a portion of his
6

gross monthly pension income was earned post-divorce.
6
[Petitioner] argues that [his] earnings after marriage are separate property.
While his earnings are his separate property, [petitioner] misses the mark that
his income from retirement is still earnings. Further, [petitioner] argues that
[respondent] is “double dipping” in [his] pension if she continues to receive
[spousal support]. Quite to the contrary, to require [respondent] to use her
portion of the pension penalizes her and provides a windfall to [petitioner].

Accordingly, the family court denied the petitioner’s motion to eliminate his spousal
support payment.

The petitioner appealed to the circuit court. The circuit court remanded the matter
to the family court to determine whether a substantial change of circumstances had
occurred that would justify modifying the spousal support obligation. The family court
determined that no substantial change of circumstances had occurred warranting the
modification of petitioner’s $300.00 per month spousal support obligation and denied the
petitioner’s motion. The petitioner again appealed to circuit court arguing that there had
been a substantial change in the parties’ needs, the sources of the parties’ incomes, the
parties’ income potential, and that the family court did not consider his argument that West
Virginia Code § 48-6-301(b)(5) prohibited the payment of spousal support from pension
income. The circuit court again affirmed the family court’s order, and, relevant to the
instant matter, found the family court correctly addressed the petitioner’s West Virginia
Code § 48-6-301(b)(5) argument “when it found that (1) despite [petitioner’s] pension
being his separate property, the income from [petitioner's] retirement was ‘earnings’
subject to spousal support; and (2) even if half of [petitioner’s] pension (the approximate
portion earned during the marriage) was ignored, he had an overage of $589.31 per month
. . . .”

The petitioner appealed to the SCAWV. In affirming the circuit court (and family
court) orders, the SCAWV found that the family court’s findings as to the petitioner’s
monthly income, his ability to pay spousal support, and respondent’s income and expenses
supported the family court’s finding that the respondent had a continuing need for spousal
support. Accordingly, the SCAWV concluded that the family court did not abuse its
discretion in finding no substantial change in circumstances or needs “justified a decrease
in [respondent’s] spousal support award.” Accordingly, the SCAWV found that the circuit
court had not erred.

Nowhere in either Eldon J.H. or John M. did the SCAWV suggest that West
Virginia Code § 48-6-301(b)(5) requires a court to explicitly find that the failure to consider
a party’s retirement income for the purposes of determining that party’s ability to pay
spousal support would result in “substantial inequity,” or that without such a finding, the
order would be rendered insufficient for meaningful appellate review.

7
In John M., the family court and circuit court’s findings as to the parties’ incomes,
expenses, financial need, and ability to pay were the essential findings; these findings
answer the “substantial inequity” question. The same is true in the instant appeal. The
family court’s specific findings as to the parties’ incomes, expenses, need, and the ability
to pay demonstrate that the failure to consider Husband’s income for the purpose of
determining his ability to pay spousal support would result in substantial inequity to Wife.
The income calculations and the family court’s analysis are the crucial findings that answer
the “substantial inequity” question; the words “substantial inequity” are not required.

However, to the extent that the final order on appeal is somehow deficient,
Husband’s counsel drafted the order. The SCAWV has long held that,

Cases should be decided on the merits, and to that end, justice is served by
reasonably accommodating all parties, whether represented by counsel or
not. This “reasonable accommodation” is purposed upon protecting the
meaningful exercise of a litigant's constitutional right of access to the courts.
Therefore, ultimately, the pro se litigant must bear the responsibility and
accept the consequences of any mistakes and errors.

Blair v. Maynard, 174 W. Va. 247, 253, 324 S.E.2d 391, 396 (1984) (emphasis added).
The same is true for counsel. Further, the general principles of judicial economy prohibit
granting relief to the party who, after creating the problem, now seeks relief. See Young v.
Young, 194 W. Va. 405, 409, 460 S.E.2d 651, 655 (1995). The party who caused the error
should not be advantaged on appeal by that same error. Id.; see also Comer v. Ritter Lumber
Co., 59 W. Va. 688, 689, 53 S.E. 906, 907 (1906) (finding that one of the parties “has
invited the error and must accept its results.”).

The final order and the record on appeal demonstrate that the family court
recognized the failure to consider Husband’s pension/retirement income in determining
spousal support would result in substantial inequity to Wife and made findings consistent
with this understanding. Moreover, the evidence presented, as contained in the record,
supports the family court’s findings. Accordingly, this Court should not disturb the order
of the family court.

For these reasons, I respectfully dissent.

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