Costello v. McDonald
| Citation | 473 S.E.2d 736,196 W.Va. 450 |
| Decision Date | 14 June 1996 |
| Docket Number | No. 22854,22854 |
| Court | Supreme Court of West Virginia |
| Parties | Marshall COSTELLO, Administrator of the Estate of Donna F. McDonald Costello, Plaintiff Below, Appellant, v. Michael McDONALD, Defendant Below, Appellee. |
Syllabus by the Court
It is presumed that when the obligor fails to make his or her child support payments as ordered, the obligee assumed that additional burden in such a manner so as to protect the welfare of the child, and, therefore, in the event the obligee dies, his or her estate is entitled to recoup from the obligated party the child support arrearage which accrued prior to the death of the obligee. This presumption may be rebutted if the court makes written findings on the record that there is clear, cogent, and convincing evidence that the welfare of the child for whom the child support payments were ordered, was adversely affected or would be adversely affected if the child support arrearage is given to the obligee's estate. Whether the presumption has been rebutted is within the sound discretion of the court and will have to be determined on a case-by-case basis. If the presumption is rebutted, then the court must determine the amount of child support arrearage which should be given to the child in order to ensure that the child has suitable shelter, food, clothing, medical attention, education, and maintenance in the station of life he or she is accustomed to living. If, however, the child becomes emancipated or reaches the age of majority, then the court must determine the amount of child support arrearage which should be awarded in order to ensure that the emancipated child or the child who has attained the age of majority is put in the same position as he or she would have been had the child support been timely paid. Furthermore, if a minor child is involved, then the court must outline a procedure whereby it is ensured that the minor child receives the benefits of the child support arrearage.
Robert D. Aitcheson, Charles Town, Barbara H. Allen, Allen & Allen, L.C., Charleston, for Appellant.
Byron Craig Manford, Martinsburg, for Appellee.
Cynthia M. Steiner, Martinsburg, for Child Advocate Office.
The appellant, Marshall Costello, the administrator of the estate of Donna F. McDonald Costello, appeals the September 14, 1994 order of the Circuit Court of Jefferson County which denied, in part, his petition for review of the August 9, 1994 order. The circuit court found in both orders that the arrearage in child support still outstanding at the time of the death of the custodial parent, Donna F. McDonald Costello, is the property of the children rather than an asset of the estate of the deceased custodial parent. The appellee, Michael McDonald, is the parent who is allegedly in arrears on his child support payments. For reasons stated below, we reverse the September 14, 1994 order of the circuit court and remand this case to the circuit court for further proceedings consistent with this opinion.
On July 24, 1991, the circuit court entered an order granting Donna F. McDonald (hereinafter "Donna") and Michael McDonald (hereinafter "Michael") a divorce. The custody of the couple's two daughters was awarded to Donna, and Michael was ordered to pay Donna child support.
On April 16, 1993, the couple's oldest daughter married, and therefore, became emancipated. On January 18, 1994, Donna died intestate after giving birth to a son of whom Marshall L. Costello, her new husband, is the father. Shortly thereafter, the youngest daughter, who had been in the custody of Donna, was returned to the custody of Michael, her father.
In or around June of 1994, Michael filed a petition for modification of child support with the circuit court. Michael requested that his obligation to pay child support be terminated because he was now raising the youngest child. Michael noted in his petition that Marshall Costello wanted the money Michael owed Donna in child support.
The circuit court entered an order on August 9, 1994, which essentially adopted the recommended order of the family law master. More specifically, the circuit court found, inter alia, that the arrearage in child support that Michael owed Donna, if there was any, belongs to the couple's two daughters and is to be divided equally between them. The circuit court further stated that the half going to the youngest daughter "is voided" because Michael, the obligor, who now has custody of the youngest daughter, would, in effect, be paying himself.
Marshall Costello petitioned the circuit court to review the August 9, 1994 order pursuant to W. Va. R. Civ. P. 60(b). 1 The circuit court responded by entering an order on September 14, 1994, in which it stated that the petition for review would be granted, in part. The circuit court reversed its earlier holding that the amount of arrearage owed to the youngest child was void and, instead, made clear that the arrearage is the property of the youngest child, and not the property of the custodial parent, Michael. The circuit court, however, declined to review that portion of the August 9, 1994 order which held that the arrearage in child support payments is the property of the children and not the property of the deceased custodial parent's estate. Thereafter, the circuit court remanded the case to the family law master in order to "(1) determine the amount of any actual arrearage prior to change of custody; (2) apportion the amount, if any, between the two children; (3) enforce the payment of any arrearage; and (4) to provide a mechanism for the payment of any arrearage owing to ... [the youngest child] to be deposited in her behalf either with the Child Advocate or in some depository."
The issue on appeal is whether the arrearage in child support at the time of the death of the custodial parent is the property of the children of the deceased or an asset of the estate of the deceased. We acknowledge that this issue of first impression is difficult to resolve. Because the issue is a question of law our review is de novo. See syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
The few cases addressing this issue have failed to articulate a policy which this Court could apply in all situations. For example, in In re Estate of Antkowiak, 95 Ohio App.3d 546, 642 N.E.2d 1154 (1994) the custodial parent, the mother, died testate on November 6, 1990, bequeathing her entire estate to her current husband. On June 9, 1991, the appellant, the custodial parent's son from a previous marriage, became emancipated. The appellant, as an adult, brought a declaratory judgment action seeking to have the child support arrearage collected by the Child Support Enforcement Agency declared his separate property rather than part of the decedent custodial parent's estate. Id.
The Court of Appeals of Ohio in Antkowiak declared that the child support arrearage goes to the emancipated child rather than to the deceased parent's estate. The Court of Appeals based its decision on the rationale that it is the child who suffers by the obligor's failure to pay the child support. However, the court stated that its holding was limited to an emancipated child seeking child support arrearage. Additionally, the court noted that if the custodial parent receives a judgment to collect the arrearage during his or her lifetime, then the judgment would become a part of the deceased custodial parent's estate. Id.
In Lizak v. Schultz, 496 N.E.2d 40 (Ind.1986), the father was ordered to pay child support to the mother. The father was frequently in arrears. The mother eventually remarried, and her new husband adopted the two youngest children of her former husband. Less than three months later the mother died.
The mother's new husband, in his capacity as the mother's personal representative, petitioned to pursue child support arrearage. The Supreme Court of Indiana held that the administrator of the estate of the deceased custodian has standing to bring an action to collect child support arrearage owed to the deceased custodial parent. The rationale was that the custodial parent had advanced her own funds to care for the child and is therefore, entitled to collect the arrears from the non-custodial parent.
Similarly, in Landry v. Landry, 516 So.2d 217 (La.Ct.App.1987) the custodial parent, the mother, died with the noncustodial parent, the father, in arrears on child support payments. After the mother's death the child went to live with the father.
The administrator of the mother's estate sought to collect the child support arrearage for the estate. The Court of Appeal of Louisiana held: Id. at 219 (citations omitted).
In In re Marriage of McCann, 27 Cal.App.4th 102, 32 Cal.Rptr.2d 639 (1994), the issue before the Court of Appeal of California was whether "the district attorney may bring an action on behalf of the children for whose benefit the support was ordered to recover arrearages accruing after the custodial parent's death." Id. 32 Cal.Rptr.2d at 640. The court held that the district attorney could bring an action. In so holding, the court stated Id. 32 Cal.Rptr.2d at 642 (emphasis added).
Although the discussion above fails to provide a bright line...
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