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Danny S. v. West Virginia Department of Health and Human Resources

Supreme Court of West Virginia

April 9, 2018

DANNY S., Respondent Below, Petitioner
v.
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR CHILD SUPPORT ENFORCEMENT, Petitioner Below, Respondent, and MOLLY K., Respondent Below, Respondent

          Mercer County No. 93-CP-909

          MEMORANDUM DECISION

         The petitioner (respondent below), Danny S., [1] appeals the order of the Circuit Court of Mercer County entered on January 18, 2017, that affirmed the order of the Family Court of Mercer County entered on January 11, 2016. Through the family court's order, judgment was awarded in favor of the respondent (petitioner below), the West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement ("BCSE"), and the respondent (respondent below), Molly K. (formerly Molly S.) [2] (collectively the "respondents"), and against Danny S. for unpaid child support in the amount of $13, 633.39. Relying upon West Virginia Code § 38-3-18(a) (1923), [3] Mr. S. asserts that the BCSE did not obtain a writ of execution until February 23, 2009, rendering uncollectible any installments of child support that became due ten or more years before the writ's April 27, 2009, return date.[4]

         Upon review of the parties' arguments, we affirm the circuit court's order denying Mr. S.'s appeal of the family court's decision and awarding judgment in favor of the respondents. Inasmuch as this case does not present a new or significant question of law, and having considered the applicable standard of review and the record presented, this matter is properly disposed of through this memorandum decision in accordance with Rule 21(c) of the Rules of Appellate Procedure.

         I. Factual and Procedural Background

         Mr. S. and Ms. K. are the parents of B.S., who was born in 1992. In March of 1992, the BCSE began providing services to Ms. K. and, in 1993, filed a civil action in the Circuit Court of Mercer County to establish both paternity and child support. By order entered on November 16, 1993, the circuit court found Mr. S. to be B.S.'s father and established monthly child support in the amount of $199.80 commencing November 1, 1993. Mr. S. did not appeal this order.

         Mr. S. fell into arrears on his payment of child support and, on June 6, 2000, the BCSE filed a petition for contempt against him in the circuit court. On August 10, 2000, the circuit court entered an order declining to find Mr. S. in contempt due to the totality of his circumstances but awarding a decretal judgment in favor of Ms. K. in the amount of $2, 943.62 for unpaid child support that had accrued between November 1, 1993, and February 29, 2000, and in favor of the State in the amount of $1, 328 for unpaid child support for the same time period. Because the circuit court learned in the contempt proceeding that B.S. was living with her grandmother to whom the BCSE had redirected child support, [5] the lower court ordered the BCSE to file a petition for modification to substitute the grandmother as the party in interest and to recalculate the child support amount. Thereafter, the BCSE filed a complaint for modification. In its order entered on December 21, 2000, the circuit court found that the child had been residing with her grandmother; recalculated child support at $50 per month; redirected child support to the grandmother effective November 1, 2000; and reaffirmed that any arrearage owed by Mr. S. prior to November 1, 2000, was owed to either Ms. K. or the State as her assignee. Mr. S. did not appeal either the August 10, 2000, or the December 21, 2000, orders.[6]

         It appears from the appendix record and the BCSE's appellate brief that as of March 3, 2004, B.S. had returned to live with her mother. At that same time, the BCSE redirected child support to Ms. K.[7]

         In an effort to collect the child support arrearage, the BCSE filed an abstract of order and an affidavit of accrued support with the Mercer County Circuit Court Clerk on February 23, 2009, for unpaid child support totaling $17, 062.08, including interest. [8] A writ of execution issued that same day, which was returnable on April 27, 2009. On June 9, 2010, the BCSE filed another abstract of order and an affidavit of accrued support for arrears totaling $17, 892.09, including interest, and a writ of execution issued that same day. The BCSE represents that Mr. S., who was served with notices of these filings, [9] did not assert any objection to the arrearage set forth in either of the affidavits.[10] Mr. S. has not disputed this representation.

         On October 4, 2016, the BCSE filed a motion for decretal judgment in the family court that alleged accrued, unpaid child support in the amount of $13, 740.91, including interest. Mr. S. filed a response to the BCSE's motion, as well as a counter-motion for summary judgment in which he asserted that the August 10, 2000, order did not preserve any unpaid child support that became due more than ten years prior to the April 27, 2009, return date for the writ of execution that issued on February 23, 2009; therefore, such amounts are uncollectible and must be excluded from the calculation of child support arrearage.

         The BCSE filed a response in opposition to Mr. S.'s motion. It relied upon the November 16, 1993, child support order; the decretal order entered against Mr. S. less than ten years later on August 10, 2000, which awarded the child support arrears that had accrued between November 1, 1993, and February 29, 2000; and the abstract of order and affidavit of accrued child support that the BCSE filed on February 23, 2009, which was within ten years of the August 10, 2000, decretal judgment, and the writ of execution that issued that same day without any objection being asserted by Mr. S.[11]

         On December 19, 2016, the family court held a hearing on the BCSE's motion for decretal judgment and Mr. S.'s counter-motion for summary judgment. Rejecting Mr. S.'s arguments, the family court entered an order on January 11, 2017, finding that all arrears had been properly secured following entry of the initial support order on November 16, 1993, through the new judgment entered on August 10, 2000, and the affidavit of accrued support that was filed, and the related writ of execution that issued less than ten years later, on February 23, 2009. The family court entered judgment against Mr. S. in the amount of $13, 633.39, including interest, for the child support arrearage that accrued between November 1, 1993, and October 31, 2016.

         Mr. S. appealed the family court's order to the circuit court. By order entered January 18, 2017, the circuit court affirmed the family court's decision, finding that the law "expressly permits the execution of a judgment within ten years of the date of the judgment." The circuit court further found that the BCSE's affidavit of accrued support filed in February 2009, and the corresponding writ of execution that issued at that same time, were both well within the ten-year time frame under West Virginia Code § 38-3-18 for the decretal judgment entered on August 10, 2000, all of which applied equally to the affidavit of accrued support filed and the writ of execution secured by the BCSE in June 2010. The circuit court further found that the "issuance of these executions preserves the judgment and essentially re-sets the ten-year statute of limitations." Accordingly, the circuit court ruled that the family court had "correctly determined that as of January 11, 2017, the statute of limitations had not expired on the August 10, 2000, decretal judgment."[12] This appeal followed.

         II. Standard of Review

         Mr. S. appeals the circuit court's order that upheld the family court's order granting a decretal judgment in favor of Ms. K. and the BCSE for all unpaid child support. Our standard of review is as follows:

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

         Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Bearing this standard in mind, we proceed to determine whether there was error in the rulings below.

         III. ...


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