Robin Summerhill v. Gene Summerhill, Jr.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ROBIN SUMMERHILL,
July 1, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-494 (Fam. Ct. Jefferson Cnty. No. FC-19-2019-D-315)

GENE SUMMERHILL, JR.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Robin Summerhill appeals the Family Court of Jefferson County’s
October 12, 2023, Final Order Modifying Spousal Support that reduced her spousal support
from $2,500.00 per month to $1,000.00 per month. Respondent Gene Summerhill, Jr., filed
a response in support of the family court’s order.1 Ms. Summerhill filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure. For the reasons set forth below, the family
court’s decision is vacated, and this case is remanded for further proceedings consistent
with this decision.

The parties were married for eighteen years and divorced by final divorce order on
December 10, 2019. Two children were born of the marriage. Ms. Summerhill was a stay-
at-home parent during most of the marriage. She re-entered the workforce around 2014. At
the time of the divorce, Ms. Summerhill’s annual income was approximately $27,000.00
and Mr. Summerhill’s annual income was approximately $150,000.00. Under the terms of
the divorce agreement, Ms. Summerhill was given primary custody of the parties’ youngest
child, born in November 2003.2 Mr. Summerhill was ordered to pay child support to Ms.
Summerhill in the amount of $930.00 per month.3 Ms. Summerhill was additionally

1
Robin Summerhill is represented by Kirk H. Bottner, Esq. Gene Summerhill, Jr. is
represented by Frank M. Aliveto, Esq.
2
The eldest child had become an adult by the time of the divorce.
3
The youngest child is now an adult, and thus, no child support obligation is
currently in effect.
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awarded permanent spousal support in the amount of $2,500.00 per month pursuant to the
parties’ agreement. The final divorce order stated that spousal support was to “continue
each and every month thereafter until modified by [o]rder of [the family court], the death
of either party, or the remarriage of [Ms. Summerhill], whichever event shall first occur.”
The family court found the parties’ agreement to be “fair and equitable.”

On April 4, 2023, Mr. Summerhill filed a motion to modify spousal support that
requested the family court terminate his $2,500.00 monthly spousal support obligation. In
support of his motion, Mr. Summerhill asserted that “the parties’ financial circumstances
ha[d] materially changed.”

On April 12, 2023, Ms. Summerhill replied to Mr. Summerhill’s motion and filed a
counter petition to modify spousal support, in which she requested the family court increase
her spousal support due to Mr. Summerhill’s salary increase, which she alleged constituted
a substantial change of circumstances. Specifically, Ms. Summerhill asserted that while
her salary had remained essentially the same since the entry of the final divorce order, Mr.
Summerhill’s annual income had increased by $30,000.00.

On September 14, 2023, the family court held a final hearing on both parties’
motions to modify spousal support, allowing Mr. Summerhill to proceed with his motion
first. Mr. Summerhill testified that he was asking the family court to terminate his spousal
support obligation due to Ms. Summerhill’s cohabitation with her boyfriend, Mr. Wingard,
and her increased spending habits. The parties’ daughter was called to testify for the
purpose of giving her opinion regarding Ms. Summerhill’s living arrangement with Mr.
Wingard. The parties’ daughter testified that she assumed that Mr. Wingard lived with Ms.
Summerhill; she stated that she visited Ms. Summerhill approximately eight times in eleven
months on different weekends and school breaks, during which Mr. Wingard was there
every time she visited. The daughter also testified that although Ms. Summerhill told her
that Mr. Wingard was not living there, she did not believe Ms. Summerhill because Mr.
Wingard’s work laptop was there, his shoes were at the door, his clothes were in the
laundry, he had a large suitcase and a carry-on suitcase there, and she saw beer in the
refrigerator.

The family court also heard testimony from Mr. Wingard, whom had been seeing
Ms. Summerhill for sixteen months, for the purpose of showing their relationship was a
substantial change in circumstances because it amounted to a de facto marriage. Mr.
Wingard testified that he was from Pennsylvania, met Ms. Summerhill in May 2022, started
spending more time in West Virginia in October 2022, and moved into his mother’s
Pennsylvania home in the summer of 2022 to help care for his father, who had cancer, but
unfortunately passed away in April 2023. Testimony revealed that Mr. Wingard’s mother
was diagnosed with cancer in July 2023, started chemotherapy shortly thereafter, and there

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was no one else to assist in taking care of his mother.4 Also, although disputed,
documentation revealed that Mr. Wingard had made many Facebook posts stating that he
was living in West Virginia.5 Mr. Wingard testified that when he and Ms. Summerhill
vacationed, they split the cost; she usually paid for the overnight accommodations and
dinners while he paid for gas, groceries, or anything else to help even the cost. Mr. Wingard
additionally testified that although he spent a substantial amount of time at Ms.
Summerhill’s home, he did not reside with her and was not a resident of West Virginia. He
specifically testified that he usually spent about “seven or so days” with Ms. Summerhill,
did not pay Ms. Summerhill rent, did not help pay for her utilities, had never made
improvements to her home, had a Pennsylvania driver’s license, was registered to vote in
Pennsylvania, had no bank accounts in West Virginia, did not have a joint bank account
with Ms. Summerhill, did not own any real estate or personal property with Ms.
Summerhill, did not have any credit cards with Ms. Summerhill, had not moved his
belongings into Ms. Summerhill’s home (other than the clothes and computer he packed
for visits), usually bought food when he stayed with Ms. Summerhill, and had not made
Ms. Summerhill a beneficiary to his will or any type of policies.

Most of the testimony and documentation presented during the family court’s final
hearing focused on Ms. Summerhill’s relationship with Mr. Wingard and her spending
habits since their relationship began. Testimony revealed that prior to their divorce, the
parties saved money, infrequently dined out, and only vacationed in Myrtle Beach, Florida,
and Pennsylvania. Specifically, Mr. Summerhill testified that although it was his choice to
save for retirement and Ms. Summerhill’s choice to enjoy life in the present, after seeing
Ms. Summerhill’s bank and credit card statements, she was living a better life than he was.
The record revealed that since Ms. Summerhill met Mr. Wingard, the couple had
vacationed in Washington D.C., South Carolina, and Florida. Mr. Summerhill testified that
he no longer saved money, rarely vacationed, rarely ate out but frequently ordered
GrubHub for his daughter “because she likes to order in a lot,” and that due to the home
renovations for his daughter moving in with him, he was “in the hole every month” and
therefore felt that his support obligation was funding Mr. Wingard’s lifestyle. However,
Mr. Summerhill testified that he had no direct evidence that any of his support was funding
Mr. Wingard’s lifestyle or that Mr. Wingard was contributing financially to Ms.

4
This testimony was elicited to indicate that Mr. Wingard had commitments in
Pennsylvania and was thus, not cohabitating in West Virginia with Ms. Summerhill as
alleged.
5
When questioned about his Facebook posts, Mr. Wingard testified that he lied in
the posts because after being divorced for almost four years, he finally met someone and
got caught up in the moment of being happy in West Virginia with Ms. Summerhill.

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Summerhill’s household.6 Mr. Summerhill agreed that the financial documentation did not
appear to show that Mr. Wingard was sharing household expenses with Ms. Summerhill,
and the only deposits into her account from a third party were from her parents.

On October 12, 2023, the family court entered a Final Order Modifying Spousal
Support, where it reduced Ms. Summerhill’s spousal support award from $2,500.00 to
$1,000.00 per month and further ordered that the support cease when Ms. Summerhill
turned sixty-two years old. The court found that Mr. Summerhill had met his burden, and
a substantial change in circumstances had occurred due to Ms. Summerhill’s relationship
with Mr. Wingard, her spending habits, her savings, and Mr. Summerhill’s debt.7

The family court further found that Mr. Summerhill did not allege a de facto
marriage and thus made “no finding regarding de facto marriage.” Additionally, the family
court found that Ms. Summerhill’s financial needs were met by her own employment and
living arrangement, and that her support was being used to fund her social life, travel, and
romantic endeavors with Mr. Wingard. It is from this order that Ms. Summerhill now
appeals.

When reviewing the order of a family court, 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

6
Mr. Wingard testified that he was employed by the federal government in the
Department of the Navy.
7
Specifically, the family court made the following findings in support of its
determination of a substantial change in circumstances: Mr. Wingard cohabitated with Ms.
Summerhill; Ms. Summerhill “is either financially supporting Mr. Wingard . . . or that Mr.
Wingard is contributing to [Ms. Summerhill’s] household. Either way, it is apparent to the
Court that [Mr. Summerhill’s] spousal support obligation is likely being used to support
Mr. Wingard”; Ms. Summerhill travelled and vacationed frequently; Ms. Summerhill paid
off her significant credit card expenditures monthly; Ms. Summerhill had saved money
since the divorce while Mr. Summerhill has accrued debt and was upside down in his
budget; Ms. Summerhill’s lifestyle and economic situation had improved since the parties’
divorce while Mr. Summerhill’s lifestyle was decidedly worse; Mr. Summerhill’s largest
monthly expenditure was his retirement savings, which he did during the parties’ marriage;
although Mr. Summerhill’s salary had increased, “he continues to incur debt, travels
infrequently, rarely eats out, and is not living at a standard consistent with when the parties
were married”; and Ms. Summerhill’s lifestyle, savings, and travels “allows for her to live
better than that which the parties’ were accustomed to during their marriage.”

4
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.

Syl. Pt. 2, Christopher P. v. Amanda C., No. 22-918, 2024 WL 2966177, __ W. Va. __, __
S.E.2d __ (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for
appellate court review of family court orders).

On appeal, Ms. Summerhill asserts numerous assignments of error. She first argues
that the family court erroneously found that a substantial change in her circumstances had
occurred to warrant a modification reducing her monthly spousal support. In support of her
argument, Ms. Summerhill contends that the family court abused its discretion when it
found that “pursuant to West Virginia Code § 48-6-301(b)(17) [2018], the evidence has
demonstrated circumstances sufficient to warrant a modification of spousal support.”8 She
asserts that the only change in circumstances was Mr. Summerhill’s $30,000 salary
increase, which would justify granting her petition for an increase in spousal support rather
than a decrease; however, she argues that the family court erroneously failed to address her
petition in its order. Ms. Summerhill argues that the family court incorrectly justified
reducing her support because of her alleged cohabitation with Mr. Wingard. Although Ms.
Summerhill’s argument is somewhat misplaced, we find merit in her argument,
nonetheless.

This Court has previously held the following:

A lower court’s analysis of a petition for modification of spousal support is
two-fold. First, a substantial change of circumstances must be established.
See, e.g., Syl. Pt. 3, Campbell v. Campbell, 243 W. Va. 71, 842 S.E.2d 440
(2020) (citing Syl. Pt. 3, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496
(1987)) (holding that party seeking modification has burden of showing
substantial change of circumstances). Once a substantial change of
circumstances has been established, the specific list of factors under West
Virginia Code § 48-6-301(b) must be considered by the family court.

Jackson v. Jackson, No. 23-ICA-162, 2024 WL 140330, at *2 (W. Va. Ct. App. Jan. 12,
2024) (memorandum decision). We additionally stated that “[t]o modify spousal support
based on an ex-spouse cohabiting with another person, the family court must make

8
West Virginia Code § 48-6-301 (2018) lists spousal support factors that the family
court is required to consider in determining the amount of spousal support to be awarded.
Subsection (b)(17) of the code requires the court to consider the financial need of each
party, and while this is a factor to consider after a change in circumstances is found, there
is no caselaw to support this sole factor’s consideration as being the determinant that a
substantial change in circumstances has occurred.
5
‘specific written findings by the court that . . . a de facto marriage has existed between the
spousal support payee and another person.’” Id. at *3 (citing W. Va. Code § 48-5-707(a)(1)
(2001). Thus, when a de facto marriage is found to exist, a substantial change of
circumstances has been established.

Here, as the basis for his request to terminate spousal support, Mr. Summerhill’s
petition for modification of support stated that “the parties’ financial circumstances have
materially changed” since the divorce. However, evidence adduced from the final hearing
clearly indicated that Mr. Summerhill was trying to prove that a de facto marriage existed
between Ms. Summerhill and Mr. Wingard due to the nature of their relationship. Mr.
Summerhill elicited answers from witnesses regarding the details of Ms. Summerhill’s
relationship with Mr. Wingard, whether they lived together, and whether they shared
expenses. Importantly, Mr. Summerhill’s attorney informed the family court on the record
that he called Mr. Wingard to testify because “I believe it is a de facto marriage. I believe
it is a significant change in circumstances when you move another adult into your home.”
Mr. Summerhill’s attorney additionally stated that the purpose of the parties’ daughter’s
testimony would be to testify as to where Mr. Wingard lived. The parties’ daughter testified
that she talked to Mr. Summerhill about her testimony and was told that the issue was
whether Mr. Wingard cohabitated with Ms. Summerhill. Mr. Summerhill acknowledged
that he had no evidence to support his assertion that Mr. Wingard was contributing to Ms.
Summerhill’s living expenses but stated that Ms. Summerhill “has a live-in person that is
living there. . . when someone is living there, they pay for the shared household expenses.”

Our Supreme Court of Appeals has expressly held,

[W]here the payor of spousal support seeks to have his or her support
obligation reduced or terminated based upon the existence of a de facto
marriage between the recipient of the spousal support and another, “the
burden is on the payor to prove by a preponderance of the evidence that a de
facto marriage exists.”

Wachter v. Wachter, 216 W. Va. 489, 497, 607 S.E.2d 818, 826 (2004) (citing W. Va. Code
§ 48-5-707(a)(3)). In Wachter, the Court analyzed how a de facto marriage should be
determined when a payee ex-spouse is cohabitating with another person.9

Although it is apparent that the family court based much of its decision on Ms.
Summerhill’s relationship with Mr. Wingard, the court specifically stated that it declined
to make a finding regarding whether a de facto marriage existed because Mr. Summerhill

9
Once a de facto marriage is determined to exist, Lucas v. Lucas, 215 W. Va. 1, 592
S.E.2d 646 (2003) provides lower courts with guidance on how to determine whether and
to what extent a spousal support obligation should be reduced.

6
“did not make [an] allegation of [a] de facto marriage.” We conclude that the family court’s
finding that Mr. Summerhill did not allege a de facto marriage was clearly erroneous based
on Mr. Summerhill’s own testimony, evidence he elicited through witnesses’ testimony,
and his counsel’s argument. Regardless, because Mr. Summerhill sought to have his
support obligation terminated due to Ms. Summerhill’s alleged cohabitation with Mr.
Wingard, it was his burden to prove the existence of a de facto marriage.

Simply stated, when a payor ex-spouse is seeking to terminate or reduce his spousal
support obligation due to the cohabitation of the payee ex-spouse with another person, the
payor has the burden to prove by a preponderance of the evidence, and the family court
must first find, that a substantial change in circumstances has occurred by the existence of
a de facto marriage. See Wachter, 216 W. Va. at 497, 607 S.E.2d at 826; see also Jackson,
No. 23-ICA-162, 2024 WL 140330, at *2–3. Only then does the family court have the
discretion to modify the support by considering the statutory factors. See Lucas v. Lucas,
215 W. Va. 1, 6–7, 592 S.E.2d 646, 651–652 (2003).

Therefore, we conclude that the family court abused its discretion by failing to
analyze whether a de facto marriage existed under West Virginia Code § 48-5-707. On
remand, the family court is instructed to consider, make findings concerning, and enter an
order that determines whether the relationship between Ms. Summerhill and Mr. Wingard
amounted to that of a de facto marriage before it determines whether support should be
reduced.10 Because we conclude that the family court abused its discretion by reducing the
spousal support without first making the requisite finding of the existence of a de facto
marriage, we decline to address Ms. Summerhill’s additional assignments of error.

Accordingly, based on the foregoing, we vacate the family court’s October 12, 2023,
order, and remand this case for the family court to enter an order consistent with this
decision.

Vacated and Remanded with instructions.

10
We note that Ms. Summerhill assigns error to the family court’s failure to address
her counter petition for an increase of spousal support due to Mr. Summerhill’s salary
increase in its order. The family court, by granting Mr. Summerhill’s petition, did
essentially consider Ms. Summerhill’s petition. However, on remand, if the family court
arrives at a different conclusion regarding Mr. Summerhill’s petition, the court’s order shall
address and analyze Ms. Summerhill’s petition for an increase of support.
7
ISSUED: July 1, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

8