Fenton v. Miller, No. 19174

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 182 W.Va. 731,391 S.E.2d 744
• Parties: Calvin P. FENTON, et al. v. Taunja Willis MILLER, et al.
• Docket Number: No. 19174
• Decision Date: 29 March 1990

Page 744

391 S.E.2d 744 182 W.Va. 731 Calvin P. FENTON, et al.
v.
Taunja Willis MILLER, et al. No. 19174. Supreme Court of Appeals of
West Virginia. March 29, 1990.

Page 745

[182 W.Va. 732] Syllabus by the Court

1. The formal hearing that this court has required in State ex rel. Department of Human Services v. Huffman, 175 W. Va. 401, 332 S.E.2d 866 (1985), is placed by statute in the West Virginia circuit courts and the family law masters, at such time as a Child Advocate seeks a judgment for back support.

2. The Child Advocate is an advocate for the interests of the State in cases where the State seeks to recoup support from a defaulting parent; however, the Child Advocate is vested with discretion so that when a defaulting parent presents clear and convincing evidence of inability to pay to a Child Advocate, the Child Advocate is not obliged to pursue the matter in circuit court if an unfavorable outcome for the State is not in doubt.

3. Once this Court takes jurisdiction of a matter pending before a circuit court, the circuit court is without jurisdiction to enter further orders in the matter except by specific leave of this Court.

Roger W. Tompkins, Atty. Gen., C. Terry Owen, Sr. Asst. Atty. Gen., Charleston, for Taunja Willis Miller.

Daniel F. Hedges, Charleston, for Calvin P. Fenton.

NEELY, Chief Justice:

Calvin Fenton is a long-suffering, hard working family man who finds himself the subject of efforts by the West Virginia Department of Human Services to collect money that the Department paid to his former wife to support his children.

In the summer of 1977, Patricia Fenton left Calvin Fenton and went to Pennsylvania with another man. Mrs. Fenton left her four children with Mr. Fenton, and he continued to work at his job, arranging for a babysitter when he was working or out-of-town. Mr. Fenton filed for divorce, and in 1978 the Circuit Court of Fayette County awarded the divorce and gave Mr. Fenton custody.

In 1979, however, Patricia Fenton returned to Fayette County, asked for custody, and Mr. Fenton happily sent the children back to her because he was having a hard time caring for them. Mr. Fenton remarried and now has five more children, ages 3, 5, 7, 9, and 10. Furthermore, one of the children from his first marriage has now moved back with him, so he supports a wife and six children on the meager income he earns working for a sign company.

In 1987 the Fayette County Child Advocate office filed a complaint to recoup support (AFDC) money paid by the Department

Page 746

[182 W.Va. 733] to Patricia Fenton. This case is styled State of West Virginia ex rel. Department of Human Services by Carol T. Lay v. Calvin Fenton. On 4 March 1987, an Order was entered by the Circuit Court of Fayette County upon an order form provided by the Child Advocate, granting judgment in the full amount of AFDC benefits paid, $11,591. An Order was then entered to pay $350 per month to satisfy the judgment, and Mr. Fenton's wages were garnished.

In December 1988, Mr. Fenton successfully petitioned the Circuit Court of Fayette County for a rule to show cause in prohibition on the grounds that he had not been served with process in the original circuit court action brought by the Child Advocate. The Fayette County Circuit Court stayed the enforcement of the judgment for back support until the service of process issue could be resolved at a hearing on the prohibition proceeding scheduled for 2 February 1989. Before the scheduled hearing, however, the Child Advocate resigned, and the position was left vacant. Thus the hearing was postponed indefinitely, and no hearing has ever been held, although a hearing was rescheduled for the Spring of 1989.

Before the hearing on the Fayette County prohibition proceeding could be had in Spring, 1989, however, Mr. Fenton filed a class action in the Circuit Court of Kanawha County seeking to enjoin the West Virginia Department of Human Services from collecting AFDC payments on behalf of the State until the procedures outlined in State ex rel. Department of Human Services v. Huffman, 175 W.Va. 401, 332 S.E.2d 866 (1985), were complied with. The circuit court entered a preliminary injunction, and it is from that circuit court injunction that the Department appeals in the case before us.

I.

The bone of contention between the appellee, Mr. Fenton, represented by the Appalachian Research and Defense Fund, and the Department concerns the obligation on the part of the Child Advocate to determine the ability of a parent on whose behalf AFDC payments have been made to reimburse the State of West Virginia for...