Griffis v. Griffis

• Citation: 503 S.E.2d 516,202 W.Va. 203
• Decision Date: 21 May 1998
• Docket Number: No. 24628-24630.
• Court: Supreme Court of West Virginia
• Parties: Pamela Jane GRIFFIS, Plaintiff, v. James Lyle GRIFFIS, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner. Kimberly O. SHREVE, Plaintiff, v. Steve Allen SHREVE, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner. Shirley Diann MITCHELL, Plaintiff, v. Thomas G. MITCHELL, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner.

503 S.E.2d 516

202 W.Va. 203

Pamela Jane GRIFFIS, Plaintiff, v. James Lyle GRIFFIS, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner.

Kimberly O. SHREVE, Plaintiff, v. Steve Allen SHREVE, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner.

Shirley Diann MITCHELL, Plaintiff, v. Thomas G. MITCHELL, Defendant, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Petitioner.

Nos. 24628-24630.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1998.

Decided May 21, 1998.

Ilene S. Schnall, Deputy In-House Counsel, Charleston, for Plaintiff, West Virginia Department of Health and Human Resources, Child Support Enforcement Division.

DAVIS, Chief Justice:

Two identical questions have been certified to this Court by the Circuit Court of Boone County in three separate cases. These questions ask us to determine the effect of the marriage, remarriage or cohabitation of parents on a valid preexisting order for child support and on unpaid child support that accrued prior to the marriage or remarriage of the parents. We conclude that the marriage or remarriage of parents automatically terminates the preexisting child support order; however, mere cohabitation does not. We further conclude that child support arrearages that accumulated prior to the marriage or remarriage of the parents are not nullified as a result of the marriage or remarriage.

I. FACTUAL AND PROCEDURAL HISTORY

A. Griffis

Three children had been born of the marriage of James and Pamela Griffis by the time they divorced in June of 1979. At the time of the divorce, the three children were approximately eleven, four-and-one-half, and two-and-one-half years old. The divorce decree granted custody of the three minor children to Pamela Griffis and ordered James Griffis to pay child support in the amount of $166 per child, per month, for a total monthly support amount of $498. James failed to make any of the ordered child support payments. Pamela received assistance from Aid to Families with Dependent Children [hereinafter "AFDC"] for the months of June and July, 1979.

In June, 1980, the couple remarried. By this time, James was in arrears on his child support obligation in the amount of $6,141.13.¹ Upon the remarriage of the couple, the Boone County office of the Child Support Enforcement Division [hereinafter "CSED"]² ceased calculating James' child support obligation. In addition to the child support arrearages, James owed the State $498 for the aforementioned AFDC benefits.

Thereafter, in February 1981, the couple divorced a second time. Custody of the minor children was again awarded to Pamela. James was ordered to pay child support in the amount of $167 per child, per month, for a total monthly support amount of $501. Once again, James failed to make any child support payments. Pamela received AFDC benefits from June, 1982, through February, 1984.

In May, 1984, the couple married a third time. The amount of child support that had accrued, but was not paid by James, between the couple's second divorce and third marriage was $19,630.87. James also owed the State $4,482 for the AFDC benefits Pamela received between June, 1982, and February, 1984.

At some point, proceedings directed toward a third divorce were initiated. However, the action was dismissed due to the couple's reconciliation. James and Pamela remain legally married. CSED records indicate that James currently owes Pamela a total of $61,741.90 in child support arrears and owes the State a total of $581.83 for AFDC benefits paid to Pamela.³

B. Shreve

Kimberly O. and Steve A. Shreve were married in July, 1975. On September 8, 1987, the couple separated. Kimberly requested public assistance. The assistance was approved on September 11, 1987. Kimberly and Steve were granted a divorce by order of the Circuit Court of Boone County in November, 1987. Kimberly was awarded custody of the couple's two children, who were then approximately seven-and-one-half and three-and-one-half years old. Steve was ordered to pay Kimberly $249 per month in child support. Steve fulfilled his child support obligation until June, 1988, when he and Kimberly reconciled.⁴ Apparently due to this reconciliation, the CSED ceased tabulation of Steve's child support obligation in June, 1988.⁵ The couple remarried in August, 1991.

Kimberly and Steve separated a second time in August, 1994, and Kimberly applied for AFDC benefits. As a result of the AFDC application, there was an automatic referral to the CSED and a child support case was opened. Kimberly filed for divorce in October, 1994, and the CSED began collecting child support payments from Steve in December, 1994. By temporary order, the Circuit Court of Boone County awarded custody of one of the couple's two children to Kimberly, and Steve was awarded custody of the other child. In addition, Steve was ordered to pay Kimberly $450 per month for support of the child in Kimberly's custody.⁶ The divorce became final in August, 1996. The provisions for child custody and support that were provided in the temporary order were repeated, without modification, in the final order granting the divorce. As of June 1, 1997, Steve was in arrears to Kimberly in the amount of $550.41.

C. Mitchell

By an order entered on October 2, 1978, the Circuit Court of Boone County found that Thomas G. Mitchell was the father of a child born to Shirley Mitchell on September 8, 1975. Pursuant to the order, Thomas was required to pay Shirley $75 per month for support of the child. The payments were to begin on October 1, 1978. Also in October, 1978, Shirley began receiving AFDC benefits. She continued receiving AFDC benefits through March, 1979. As a result of the AFDC benefits paid to Shirley, Thomas owed the State of West Virginia $300. Meanwhile, in November, 1978, a second child was born to Thomas and Shirley.⁷ The couple married in July, 1979. As a result of the marriage, the CSED ceased calculating Thomas' child support obligation to Shirley. At the time of the marriage, Thomas still owed $300 to the State and also owed Shirley $302.27 in unpaid child support.

The couple subsequently divorced in April, 1988. Custody of the couple's two minor children was awarded to Shirley, and Thomas was ordered to pay Shirley $200 per month for support of the two children. Shirley again received AFDC benefits from April, 1988, through May, 1989, and from February, 1990, through December 1990. The AFDC benefits received by Shirley created a corresponding debt for Thomas in the amount of $5,000.

Shirley and Thomas were married a second time in December 1990. The CSED again ceased calculations on the child support obligation upon the remarriage of the couple. At that time, Thomas was indebted to the State in the amount of $5,147. He also owed Shirley $2,415.48 in unpaid child support. Thereafter, Thomas and Shirley separated again in August, 1995. Following the separation, Shirley received AFDC benefits from September, 1995, through December, 1996. No order for child support has been entered since this separation. As of June 1, 1997, Thomas owed Shirley $4,024.24 in child support arrears and owed the State $5,147⁸ for AFDC benefits received by Shirley.

D. Certified Questions

In each of the above described cases, the CSED motioned the circuit court to certify certain questions of law to this Court for resolution. Deciding these motions by three separate orders,⁹ the circuit court certified two questions to this Court. Because the questions in each case are identical, we have consolidated the cases for the purpose of addressing the following questions certified by the Circuit Court of Boone County:

Question 1

Whether either divorce order automatically terminated upon the cohabitation, marriage, or re-marriage of the parties?

Answer of the Circuit Court

Each divorce order terminated automatically upon the marriage or re-marriage of the parties, but not upon cohabitation.

Question 2

Whether child support arrearages were eliminated upon the cohabitation, marriage, or re-marriage of the parties?

Answer of the Circuit Court

Child Support arrearages were eliminated upon the marriage or re-marriage of the parties, with the exception of arrearages that were assigned to the State of West Virginia. Arrearages were not eliminated upon the cohabitation of the parties.

Pursuant to our authority to do so, we rephrase the certified questions before us as follows:¹⁰

Question 1

When the parents of a minor child or children marry, remarry or cohabit, does any pre-existing child support order/obligation regarding the child or children automatically terminate with respect to payments thereafter accruing?

Question 2

When a court order requires payment of child support by one parent to another, and the parent who is required to make such payments has failed to make any or all of the required child support payments, does the marriage, remarriage or cohabitation of the parents operate to nullify the accumulated arrearages?

Before this Court, the CSED contends that no statutes or cases in West Virginia squarely deal with issues regarding the status of child support and child support arrearages upon the marriage, remarriage or cohabitation of the parents. It further submits that its field offices resolve such issues on a case by case basis, which results in inconsistent resolutions. The CSED also argues that there is a lack of consistency among the various circuit courts of this state in dealing with these issues.

II. STANDARD OF REVIEW

We have repeatedly stated that we apply a de novo standard when reviewing certified questions. See Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996) ("The appellate standard of review of questions of law answered and certified by a circuit court is de novo."). See also...