Carter v. Carter

• Decision Date: 18 November 1996
• Docket Number: No. 23253,23253
• Citation: 479 S.E.2d 681,198 W.Va. 171
• Court: West Virginia Supreme Court
• Parties: Katrina Rae CARTER, Plaintiff Below, v. Henry Denzil CARTER, Defendant Below, Appellee, West Virginia Department of Health and Human Resources, Child Support Enforcement Division, Appellant.

Page 681

479 S.E.2d 681

198 W.Va. 171

Katrina Rae CARTER, Plaintiff Below, v. Henry Denzil CARTER, Defendant Below, Appellee West Virginia Department of Health and Human Resources Child Support Enforcement Division, Appellant.

No. 23253.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1996.

Decided Nov. 18, 1996.

Syllabus by the Court

1. " 'Matured 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.' Syl. pt. 1, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987)." Syl. pt. 5, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

2. " 'The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments.' Syl. pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987)." Syl. pt. 1, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

3. Even though a custodial parent has interfered with or discouraged visitation between a noncustodial parent and the parties' children, a trial court may not reduce the amount of child support arrearages owed by the noncustodial parent in order to punish the custodial parent for such interference or discouragement of visitation.

R. Jeffrey Johnson, West Virginia Department of Health and Human Resources, Child Support Enforcement Division, Charleston, for the Appellant.

James W. St. Clair, St. Clair & Levine, Huntington, for Katrina Rae Carter.

Henry Denzil Carter, Pro Se.

McHUGH, Chief Justice:

In this appeal, ¹ the West Virginia Department of Health and Human Resources, the Child Support Enforcement Division, ² by its counsel, seeks reversal of an order entered January 23, 1995 in the Circuit Court of Wayne County. In that order, the circuit court, inter alia, reduced the amount of child support arrearage owed Katrina Rae Carter by her former husband, Henry Denzil Carter, on the ground that Mrs. Carter had discouraged visitation between Mr. Carter and the parties' two children.

Upon consideration of the Child Support Enforcement Division's (hereinafter "Division") petition for appeal and brief ³ and all matters of record, the order of the circuit court is reversed.

I.

Katrina Rae Carter and Henry Denzil Carter were divorced on February 9, 1981 in the Circuit Court of Wayne County. The parties' marriage produced two sons, one of whom was born on January 9, 1978 and the other, on August 16, 1980. Under the provisions of the divorce decree, Mrs. Carter was "awarded sole and exclusive care, custody and control of the infant children of the parties, and ... [Mr. Carter] [was] awarded reasonable and seasonable visitation with the children, to be exercised and restricted to the residence of [Mrs. Carter], or such other place or upon such conditions that she may designate[.]" The divorce decree further provided that Mr. Carter "shall pay to [Mrs. Carter] the sum of $140.00 per month, $70.00 each two weeks, as and for support and maintenance of the infant children, commencing on the 9th day of January, 1981, payable in advance, and to continue in like manner hereafter, until further order of the Court."

On July 7, 1982, the West Virginia Department of Welfare, as the assignee of Mrs. Carter pursuant to W. Va.Code, 9-3-4 [1979], filed a petition for a hearing for modification of the divorce decree and for decretal judgment in the amount of $1,400, the amount of child support payments owed but not made to Mrs. Carter at that time, plus interest and costs. ⁴ The petition further sought that a child support obligation of $140 per month, as opposed to $70 every two weeks, be imposed upon Mr. Carter. Mr. Carter failed to appear and by order entered September 10, 1982, the circuit court granted the Department of Welfare's motion.

On April 30, 1994, the Office of the Child Advocate, on behalf of Mrs. Carter and her children, filed a petition for a contempt order against Mr. Carter, pursuant to W. Va.Code, 48-2-22 [1984] ⁵ and 48A-5-5 [1986], ⁶ alleging, inter alia, that Mr. Carter owed his former wife $23,660 in unpaid child support. At a December 27, 1994 hearing on the matter, Mrs. Carter testified that, following the divorce, she and the children occupied at least six different residences in West Virginia and Virginia. Though Mrs. Carter did not reveal to Mr. Carter her various addresses and telephone numbers, she and her mother both testified that her whereabouts were at all times capable of being ascertained through Mrs. Carter's mother. Mr. Carter testified that he made several attempts to see his children and to make child support payments to Mrs. Carter. However, according to Mr. Carter, Mrs. Carter thwarted his efforts to exercise his visitation privileges and likewise refused to accept the few child support payments he tried to make.

Upon conclusion of all the testimony, the trial court commented:

Well, there is no question in this matter that she has done what she can do to keep him from visiting with the children. And there is no question that he has pretty well done what he could do to keep from paying the support.

Certainly if I take everything that he says is true, there is still not a diligent effort to enforce visitation in this matter. You know, it's very easy to come in and say, 'I have tried. I tried to hire a lawyer and all of this.' But I'm not impressed with the efforts that were made.... It's strange how being brought into court intensifies your efforts for visitation and child support.

The trial court concluded, "[g]iving [Mr. Carter] the benefit of all doubts, ... he is in arrears in the amount of $16,800 in payment of the child support." The trial court further concluded that it was "permitted to punish [Mrs. Carter] ... for her failure or refusal to allow [Mr. Carter] to visit with the children[.]" The trial court then determined that Mrs. Carter "should be punished as at least one-fourth at fault in these sums ... bring[ing] the amount to the arrearage of $4,000." Accordingly, in its January 23, 1995 order, the trial court found, inter alia:

That [Mrs. Carter], in her petition, prayed for relief in the amount of $23,600.00 for past due or matured installments of [Mr. Carter's] child support obligations.

That the authority of this Court to modify child support payments can be applied retrospectively only in instances of judicially cognizable circumstances.

That the evidence does not fully substantiate [Mr. Carter's] claim that he diligently attempted to locate his children and discharge his support obligations. Consequently, his request for dismissal of [Mrs. Carter's] petition is denied.

That after consideration of the evidence, the Court finds [Mr. Carter's] true arrearage is $16,800.00, not $23,600.00

That [Mrs. Carter's] actions with regard to discouraging [Mr. Carter's] visitation with his children merit punitive measures. Consequently, [Mr. Carter's] total and complete liability for past due child support is hereby set at $12,000.00. ⁷

(emphasis and footnote added). It is this January 23, 1995 order ⁸ that is the subject of this appeal.

II.

The sole issue for our review is whether the trial court committed error in reducing the amount of child support arrearage to punish Mrs. Carter for discouraging visitation between Mr. Carter and the parties' two children.

A.

In West Virginia, "child support payments vest as they accrue[,]" Hopkins v. Yarbrough, 168 W.Va. 480, 485, 284 S.E.2d 907, 910 (1981), and matured installments thereof stand as decretal judgments against the party owing such support payments. W. Va.Code, 48A-5-2(a) [1991] provides, inter alia, that "[t]he total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a court of competent jurisdiction ... shall stand, by operation of law, as a decretal judgment against the obligor owing such support." Id., in relevant part. We articulated this point in syllabus point 5 of Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993):

'Matured 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.' Syl. pt. 1, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

See syl. pt. 2, Belcher v. Terry, 187 W.Va. 638, 420 S.E.2d 909 (1992); syl. pt. 2, Lauderback v. Wadsworth, 187 W.Va. 104, 416 S.E.2d 62 (1992); syl. pt. 1, Hudson v. Peck, 183 W.Va. 300, 395 S.E.2d 544 (1990). See also Scott v. Wagoner, 184 W.Va. 312, 314 n. 5, 400 S.E.2d 556, 558 n. 5 (1990); Sauls v. Howell, 172 W.Va. 528, 530, 309 S.E.2d 26, 28 (1983).

A circuit court's power to modify child support awards other than prospectively is limited. Such power may only be exercised in instances of fraud or some other judicially cognizable circumstance in procuring the original child support award. As we held in syllabus point 1 of Robinson, supra:

'The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments.' Syl. pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

See syl. pt. 2, Woods v. Guerra, 187 W.Va. 487, 419 S.E.2d 900 (1992); syl. pt. 3, Lauderback, supra; syl. pt. 5, Moss v. Bonnell, 186 W.Va. 301, 412 S.E.2d 495 (1991); syl. pt. 2, Hudson, supra; W. Va.Code, 48A-5-2(a) [1991] ("A child support order shall not be retroactively modified so as to cancel or alter accrued installments of support." Id., in relevant part.); Brown v. Brown, 240 Va. 376, 397 S.E.2d 837, 839 (1990); ...