Shaffer v. Stanley, 31118.

CourtSupreme Court of West Virginia
Citation215 W.Va. 58,593 S.E.2d 629
Decision Date26 November 2003
Docket NumberNo. 31118.,31118.
PartiesNada D. (Stanley) SHAFFER, Plaintiff Below, Appellee, v. Wetzel Gary STANLEY, Defendant Below, Appellee, and State of West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement, Appellant.
Dissenting Opinion of Justice Davis December 4, 2003.

David L. Hill, Esq., Hamlin, West Virginia, Attorney for W.G. Stanley.

Kimberly D. Bentley, Esq., Assistant General Counsel, West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement, Charleston, West Virginia, Attorney for WV DHHR, BCSE.

Bruce G. Perrone, Esq., Legal Aid of West Virginia, Attorney for Amicus Curiae, Nada Stanley. MAYNARD, Justice:

The appellant, the Bureau for Child Support Enforcement ("BCSE"), appeals the April 27, 2001, order of the Circuit Court of Lincoln County that holds the BCSE and Nada Stanley jointly and severally liable to pay to the appellee, Wetzel Garry Stanley, $19,837.96, which the court determined to be an overpayment of child support paid by Mr. Stanley.

I. FACTS

The essential facts of this case gleaned from the record and the pleadings of the parties are as follows. The appellee, Wetzel Garry Stanley ("Mr.Stanley"), and Nada D. Stanley1 were divorced in 1978. Nada Stanley was granted custody of the couple's two children, and Mr. Stanley was ordered to pay $200 per month child support.2

By order of August 1, 1980, Nada Stanley was granted judgment against Mr. Stanley in the amount of $1000 for unpaid child support. On or about June 16, 1981, a writ of execution and suggestion were filed in an attempt to execute the judgment award.

In 1982, the appellant, the Bureau for Child Support Enforcement ("BCSE"), intercepted the income tax refund of Mr. Stanley for tax year 1981 for unpaid child support. According to Mr. Stanley's counsel during oral argument before this Court, for the next several years Mr. Stanley "did what he could" to meet his child support obligation and occasionally made cash payments directly to Ms. Stanley. He admitted, however, that the total amount paid was "minimal." During this time, no official action was taken by the BCSE or Ms. Stanley to enforce Mr. Stanley's child support obligation, although Mr. Stanley apparently received regular billing statements and letters from the BCSE in an effort to collect child support. According to the BCSE, for the tax years 1989 through 1997, it regularly attempted unsuccessfully to intercept Mr. Stanley's income tax refunds.

In October 1993, Ms. Stanley filed a petition for contempt against Mr. Stanley for his failure to pay child support. Later that month, the BCSE issued a "Notice To Source Of Income To Initiate Withholding" to the Social Security Administration to withhold specified amounts to meet Mr. Stanley's child support obligations. In December 1993, Mr. Stanley received a Social Security disability backpay award of about $20,000, from which there was no withholding.3 Also in December 1993, Mr. Stanley filed a petition for determination of arrears. Although a hearing was held before a family law master4 on the parties' petitions, no order was entered as a result of the hearing.

On March 11, 1997, the BCSE issued to the Workers' Compensation Division a "Notice To Employer/Source Of Income To Initiate Withholding." As a result, in March 1997, the BCSE intercepted $32,796.60 from a Workers' Compensation lump sum award to Mr. Stanley for the payment of child support arrearage. This money was then forwarded to Nada Stanley.

In October 1997, Mr. Stanley filed a petition for modification of child support in which he requested that the BCSE withholdings from his monthly Social Security check be terminated. After a hearing in February 1998, the family law master entered an April 9, 1998, order in which she rejected Mr. Stanley's claim that the statute of limitations barred collection of a portion of the arrearage.5 She also gave Mr. Stanley a credit toward the arrearage for Social Security benefits paid directly to Nada Stanley on behalf of the couple's children in the amounts of $96 per month from February 1994 through November 1994; $98 per month from December 1994 through May 1995; and a lump sum payment of $2,745.90 in 1993. In addition, the family law master awarded to the BCSE a decretal judgment against Mr. Stanley in the amount of $2,896.76, as reimbursement of welfare benefits formerly paid to Nada Stanley. Finally, the family law master ordered that income withholding from Mr. Stanley's monthly social security check be limited to $300. This recommended order was erroneously entered on April 9, 1998, absent the opportunity afforded by the ten-day period in which to file exceptions to a recommended order of a family law master. Accordingly, by orders of November 23, 1998 and January 22, 1999, the circuit court set aside the order, and regarded it as a valid family law master's order to which exceptions could be filed within ten days.

Mr. Stanley filed exceptions to the family law master's recommended order based on its failure to apply the ten-year statute of limitations for the execution of judgments in W.Va.Code § 38-3-18. Subsequently, the circuit court held that Nada Stanley and the BCSE failed to pursue collection of child support between the writ of execution filed in 1981 and the contempt petition filed in 1993. Therefore, the ten-year statute of limitations barred collection of child support owed prior to October 1, 1983 which was ten years prior to Nada Stanley's contempt petition. Accordingly, the circuit court ordered the BCSE to recalculate the child support arrearage owed by Mr. Stanley.

Following the recalculation, the circuit court granted judgment to Mr. Stanley against Nada Stanley for an overpayment of child support in the amount of $17,855.49, plus interest. The BCSE was ordered to return any held monies to Mr. Stanley and cease collection activity.

Mr. Stanley subsequently filed a motion to clarify the circuit court's order requesting that the BCSE, in addition to Nada Stanley, also be held responsible for refunding the overpayment. The circuit court found the BCSE jointly and severally liable for the repayment because it breached its duty to forward the withholdings to the proper party.

It is now known that Nada Stanley received a discharge in bankruptcy of all debts and claims, including the claim asserted by Mr. Stanley for child support overpayment. Accordingly, the BCSE is now solely responsible to Mr. Stanley for the overpayment of his child support obligations pursuant to the circuit court's order.6

II. STANDARD OF REVIEW

In considering the circuit court's order now challenged by the BCSE, we are guided by our oft-stated rule that "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

III. DISCUSSION
A. Applicability of the Ten-Year Limitation Period

The first issue before this Court is whether the circuit court erred in its application of the time limitation for execution of judgments found in W.Va.Code § 38-3-18 (1923), which states:

On a judgment, execution may be issued within ten years after the date thereof. Where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which has been returned unsatisfied. An action, suit or scire facias may be brought upon a judgment where there has been a change of parties by death or otherwise at any time within ten years next after the date of the judgment; or within ten years from the return day of the last execution issued thereon on which there is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire facias be against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative.

The circuit court found,

that there is no exception to the 10-year statute of limitations set forth in West Virginia Code Section ... 38-3-18. In Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991), the Court reaffirmed this principal [sic]. Accordingly, it is ORDERED and ADJUDGED that ... the plaintiff and the State of West Virginia are barred by the statute of limitations from collecting any past due child support which was payable prior to October, 1983, including the 1980 judgment. The Child Support Enforcement Division shall recompute the defendant's arrearage beginning with a zero balance due on October 1, 1983[.]

Initially, we conclude that the manner in which the circuit court applied the time limitation in W.Va.Code § 38-3-18 is correct. There is no dispute that the limitation period in W.Va.Code § 38-3-18 applies to the collection of child support judgments. According to Syllabus Point 6 of Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993), "[t]he ten-year statute of limitations set forth in W.Va.Code, 38-3-18 [1923] and not the doctrine of laches applies when enforcing a decretal judgment which orders the payment of monthly sums for alimony or child support." In addition, it is well established that when a provision for periodic payments of child support is made in a divorce decree, these installments become decretal judgments as they become due. See Syllabus Point 1 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987) (holding that "[m]atured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as `decretal judgments' against the party charged with the payments."). Finally, "[t]he...

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