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Burns v. Burns

Supreme Court of West Virginia

January 5, 2018

Jeffrey Wayne Burns, Respondent Below, Petitioner
v.
Elisa J. Burns (now Weber), Petitioner Below, Respondent

         Pocahontas County 96-D-60

          MEMORANDUM DECISION

         Petitioner Jeffrey Wayne Burns, by counsel Rebecca A. Judy, appeals the November 7, 2016, order of the Circuit Court of Pocahontas County, refusing his petition for appeal of a prior family court order that granted respondent a decretal judgment against petitioner in the amount of $10, 200, plus interest from February of 2016. This judgment represents the total amount of funds that petitioner failed to deposit over seventeen years into a post-high school educational fund for the couple's child, who was eighteen months old at the time of the parties' divorce in 1996. Respondent Elisa J. Burns (now Weber), pro se, filed a response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Factual and Procedural Background

         The parties were married in 1994 and divorced by order entered on October 2, 1996. There was one child born of the marriage. Under the divorce order, in relevant part, the family court granted respondent primary custody of the child; the parties agreed to waive the application of the child support formula, resulting in the family court ordering petitioner to pay $75 per week in child support; and petitioner agreed to pay $600 annually into a trust fund to be used for the child's post-high school education expenses. Based on the parties' agreement, the family court ordered petitioner to begin the annual payments to the fund in January of 1997. The divorce order is silent as to whether petitioner is liable for interest on the principal sum to be deposited.

         The child reached the age of eighteen years in March of 2013, and thereafter graduated from high school. The child did not pursue post-high school education until 2015, when he enrolled in vocational school and incurred approximately $25, 000 in tuition expenses. It is undisputed that petitioner made none of the required annual payments into the fund for the child's post-high school education expenses. Based on seventeen annual deposits from 1997 to 2013, petitioner should have deposited a principal sum of $10, 200 into the fund. In February of 2016, respondent sent petitioner a letter demanding payment of the funds that he should have deposited. Petitioner did not comply, and, as a result, respondent filed a contempt petition with the Family Court of Pocahontas County.

         The family court conducted a hearing on the contempt petition in July of 2016. The family court found that, since the entry of the divorce order in 1996, the parties had been before either the family court or the circuit court eight times regarding issues unrelated to the post-high school education fund, and petitioner had never challenged his agreement to pay into the fund.

         In his opposition to the contempt petition, petitioner argued that West Virginia Code § 48-11-103(c) mandates that the divorce order's trust fund provision be vacated. West Virginia Code § 48-11-103 governs when a court may award child support beyond the age of eighteen years. Subsection (c) provides as follows:

(c) The reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-four shall not, by operation of law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;
(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;
(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of section one hundred one, article thirteen, et seq., of this chapter, or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or
(5) The order was entered after the fourteenth day of March, one thousand nine hundred ninety-four, in which case the ...

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