Cottrill v. Cottrill

• Decision Date: 12 May 2006
• Docket Number: No. 32785.,32785.
• Citation: 631 S.E.2d 609
• Court: West Virginia Supreme Court
• Parties: Patricia A. COTTRILL (Now Fagan), Plaintiff Below, Appellee v. Douglas D. COTTRILL, Defendant Below, Appellant.

631 S.E.2d 609

Patricia A. COTTRILL (Now Fagan), Plaintiff Below, Appellee v. Douglas D. COTTRILL, Defendant Below, Appellant.

No. 32785.

Supreme Court of Appeals of West Virginia.

Submitted: January 25, 2006.

Decided: May 12, 2006.

Syllabus by the Court

1. "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." Syl. Pt., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "Under West Virginia Constitution art. III, § 17, the right of self-representation in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied." Syl. Pt. 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984).

3. "The 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." Syl. Pt. 6, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

Michael F. Niggemyer, Esq., White Hall, for Appellant.

Patricia A. Fagan, Pro se Appellee.

Kimberly D. Bentley, Esq., Charleston, for Appellee, Bureau of Child Support Enforcement.

PER CURIAM.

This case is before the Court on appeal from the December 14, 2004, Order of the Circuit Court of Harrison County refusing Appellant Douglas D. Cottrill's pro se petition for appeal from the November 3, 2004, Order of the Family Court of Harrison County resolving a contempt issue in favor of Appellee Patricia A. Cottrill Fagan and Appellee Bureau of Child Support Enforcement and ordering Appellant to pay $9,504.25 in child support arrearage. This Court has before it the petition for appeal, the response, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that the circuit court erred in refusing Appellant's petition for appeal. Accordingly, this Court reverses the December 14, 2004, Order of the circuit court and remands the matter for entry of an order consistent with this opinion.

I. FACTS

Appellant Douglas D. Cottrill and Appellee Patricia A. Cottrill were married on October 29, 1966. During their marriage, the couple had three children: Kim, born February 14, 1967; Kevin, born September 15, 1972; and Jessica, born October 10, 1976. After 14 years of marriage, the Cottrills were divorced in September, 1980. At the time of the divorce, the children were ages 13, 8 and 3, respectively. Mrs. Cottrill was granted custody of the children, and Mr. Cottrill was ordered to pay child support in the amount of sixty dollars per child, per month.

On July 12, 1988, the circuit court entered an Order adopting the recommendation of the then-Family Law Master that Mr. Cottrill's income be subject to withholding for child support arrearage. At that time, the children were ages 21, 15, and 11, respectively. It was found that an arrearage in the amount of $11,100.00 had accumulated. Because one of the Cottrill's three children had reached the age of majority, only $120 per month was ordered to be withheld for monthly child support.¹ Another 10% of Mr. Cottrill's monthly disposable income was withheld to be applied to the arrearage.

On January 29, 2004, over nine years after the Cottrill's last child had reached the age of majority, the Family Court of Harrison County entered an Order to Show Cause in response to the Bureau of Child Support Enforcement's (hereinafter, the "BCSE") petition alleging Mr. Cottrill's contempt for failure to pay child support. That petition alleged that an arrearage of $40,349.09 had accumulated. A hearing on the matter was originally scheduled for April 21, 2004, but was rescheduled to October 27, 2004. Mr. Cottrill, appearing pro se, maintained that he paid child support directly to Mrs. Cottrill and/or the couple's children. Mrs. Cottrill, however, asserted that she was not paid by Mr. Cottrill and that she had no knowledge of whether he ever paid the children.² Mr. Cottrill could not produce any documentation of payment, but explained at the April 21, 2004, hearing:

This many years, I'd never be able to keep anything this long. Where I did have some papers, all my military stuff and everything else burned down about four or five years ago; six years ago. I have no way to prove anything. And I couldn't afford to have a lawyer come up here with me, and I wouldn't have anything to give him to back me up anyway. I don't have anything.

Mr. Cottrill maintained, though, that he "generally paid" his child support payments. He also asserted that $1200 in child support had been intercepted from money due to him.

In its Order of November 3, 2004, the family court determined that because the Child Support Advocate Office was not created until late 1986, January 1, 1987, would be a "reasonable starting date" for the purpose of calculating any arrearage. The family court's order further stated, "The defense of the Statute of Limitations has not been raised by Douglas D. Cottrill, and the court does not do so now." Based on the calculations of the BCSE for the period of January 1, 1987, through September 30, 2004, the family court ordered Mr. Cottrill to pay principal child support arrears of $7,190 with interest in the amount of $2314.25, for a total of $9,504.25. The court found no contempt.

Mr. Cottrill, again acting pro se, filed an appeal before the circuit court on November 16, 2004. In that appeal, Mr. Cottrill, seizing on language contained in the family court's Order, raised the issue of the statute of limitations, arguing that such a defense was not known to him until the family court mentioned it in its order. He also argued that the family court's Order created an undue financial burden on him. Neither Mrs. Cottrill nor the BCSE filed a response to the petition. After examining the record, the circuit court refused the petition for appeal. Specifically, the circuit court determined that "the Statute of Limitations is an affirmative defense which must affirmatively be raised either prior to the hearing in the party's pleadings or at the hearing by way of amendment of the pleadings." The circuit court concluded that because Mr. Cottrill did not raise the defense prior to or during the hearing before the family court, it could not now consider the defense on appeal. The circuit court further found that the family court had not otherwise erred or abused its discretion. Mr. Cottrill now appeals.

II. STANDARD OF REVIEW

This Court has previously held that "[i]n 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." Syl. Pt., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). See also, Syl. Pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003).

III. DISCUSSION

We again find ourselves faced with issues that arise when a pro se litigant finds his or her rights potentially compromised by his or her unfamiliarity with the law. We have recognized that "[u]nder West Virginia Constitution art. III, § 17, the right of self-representation in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied." Syl. Pt. 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984). At the same time, we have recognized that a pro se litigant's other rights under the law should not be abridged simply because he or she is unfamiliar with legal procedures. To that end, we have advised that "the trial court must `strive to insure that no person's cause or defense is defeated solely by reason of their unfamiliarity with procedural or evidentiary rules.'" Bego v. Bego, 177 W.Va. 74, 76, 350 S.E.2d 701, 703-704 (1986) (citing Blair v. Maynard, 174 W.Va. 247, 252-253, 324 S.E.2d 391, 395-396). We believe that this is such a case. Because of his unfamiliarity with the law and civil procedure, Mr. Cottrill now finds himself in a situation where he may be forced to pay a child support arrearage which would otherwise be deemed long ago barred by the statute of limitations.

In this case, the initial child support obligation was imposed on September 2, 1980. Eight years later, another Order was entered which approved the withholding of income from Mr. Cottrill due to child support arrearage. But it was another fifteen-and-a-half years after that-and twenty-four years after the initial obligation was imposed-before the BCSE attempted to take any further action on the arrearage. At that point, the couple's children were 37, 31, and 27, respectively, and the statute of limitations on the obligation had expired.

It has long been our law that "[o]n a judgment, execution may be issued within ten years after the date thereof." West Virginia Code § 38-3-18 (1923). We have also found that this statute of limitations specifically applies to child support cases just as it does in other cases, holding: "The 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." Syl. Pt. 6, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

The statute of limitations is an affirmative defense which must be pled in a responsive pleading. West Virginia Rule of Civil Procedure 8(c). Mr. Cottrill did not file an answer to the BCSE's Petition for...