Background
Jimmy Lipscomb and Pamela Hagedorn divorced in 2010 after executing a separation and property-settlement agreement incorporated into their divorce decree. The agreement required Husband to pay Wife permanent monthly spousal support of $1,164.67. Because Husband was also to pay the $564.67 monthly mortgage on the marital home awarded to Wife, he could deduct that amount and pay Wife $600 per month.
The agreement provided that it could be modified only by a written, formally executed agreement and required a breaching party to pay the legal fees incurred by the party enforcing it. Husband paid off the mortgage in 2020 but continued paying Wife only $600 monthly. Wife sought contempt, arrearages, fees, and interest; Husband sought to modify spousal support. The parties agreed at the hearing that Husband owed $14,891.14 in back support through September 2023.
The Court’s Holding
The court affirmed the denial of Husband’s request to modify alimony. West Virginia law makes spousal-support awards modifiable unless a court-approved separation agreement contains an explicit, clear, and unambiguous provision to the contrary. This agreement’s requirement that any modification be made only through a formally executed written agreement met that standard.
The court vacated the denial of Wife’s attorney’s fees and remanded for the family court to determine and award her fees for the contempt proceeding. The fee-shifting clause required the breaching party to pay the enforcing party’s legal fees, and Wife preserved the issue by requesting attorney’s fees below. The court affirmed the denial of pre-hearing interest because the parties settled the arrearage amount in court; interest would accrue on the agreed amount if Husband failed to pay within thirty days.
Key Takeaways
- A separation agreement can bar judicial modification of alimony when its nonmodification language is explicit and unambiguous.
- A court must enforce an incorporated separation agreement’s contractual attorney-fee provision.
- An agreed arrearage settlement resolves whether pre-settlement interest is owed when the parties did not separately reserve that issue.
Why It Matters
The decision reinforces that West Virginia family courts must apply clear contractual terms in incorporated separation agreements. Parties seeking enforcement should identify fee provisions, but a general request for attorney’s fees can preserve the issue where the agreement supplies the contractual basis.