Hairston v. Lipscomb

• Decision Date: 15 July 1987
• Docket Number: No. 17629,17629
• Citation: 359 S.E.2d 571,178 W.Va. 343
• Court: West Virginia Supreme Court
• Parties: , 56 USLW 2147 Cassandra HAIRSTON v. Regina LIPSCOMB, in her own right, and as Commissioner of the West Virginia Department of Human Services; Sandra K. Gilmore, in her own right and as Assistant Commissioner (Director of the Child Advocate Office) of WVDHS; John McClusky, in his own right, and as Commissioner of the West Virginia Department of Finance and Administration; Glen B. Gainer, Jr., in his own right, and as Auditor of the State of West Virginia; and A. James Manchin, in his own right and as Treasurer of the State of West Virginia.

Page 571

359 S.E.2d 571

178 W.Va. 343, 56 USLW 2147

Cassandra HAIRSTON v. Regina LIPSCOMB, in her own right, and as Commissioner of

the West Virginia Department of Human Services; Sandra K.

Gilmore, in her own right and as Assistant Commissioner

(Director of the Child Advocate Office) of WVDHS; John

McClusky, in his own right, and as Commissioner of the West

Virginia Department of Finance and Administration; Glen B.

Gainer, Jr., in his own right, and as Auditor of the State

of West Virginia; and A. James Manchin, in his own right

and as Treasurer of the State of West Virginia.

No. 17629.

Supreme Court of Appeals of West Virginia.

July 15, 1987.

Syllabus by the Court

1. "A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review." Syllabus Point 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1983).

2. "Where a special fund is created or set aside by statute for a particular purpose or use, it must be administered and expended in accordance with the statute and may be applied only to the purpose for which it was created or set aside, and not diverted to any other purpose or transferred from such authorized fund to any other fund." Syllabus Point 7, McGraw v. Hansbarger, 171 W.Va. 758, 301 S.E.2d 848 (1983).

3. The Department of Human Services and Child Advocate Office must adopt an efficient, expeditious method to distribute support payments collected pursuant to W.Va.Code, 48A-2-12 [1986]; this fund is not subject to the requirements of W.Va.Code, 12-2-2 [1983] because its deposits are not money due the State, and proceeding by the requirements mandated in W.Va.Code, 12-2-2 [1983] makes it impossible to comply with the W.Va.Code, 48A-2-12 [1986] requirement that money be paid within ten days.

David B. McMahon, Bruce G. Perrone, Legal Aid Soc. of Charleston, Charleston, for appellant.

NEELY, Justice:

Cassandra Hairston is the mother of three young children. She is not employed and has no income for herself or her children independent of the child support payments at issue in this case. Ms. Hairston was divorced from the father of her three children in 1981. The divorce order provided child support of $375 per month ($125 per child) and alimony of $25 per month for a total court ordered support payment of $400 per month.

For most of the period from 1981 through 1986 the children's father failed to pay child support. Due to the father's absence and refusal to support the children, Ms. Hairston received $312 per month of cash assistance, food stamps and Medicaid coverage from the Department of Human Services (WVDHS) from November 1986 through March 1987.

Pursuant to an assignment from Cassandra Hairston to WVDHS of rights to collect child support, WVDHS collected child support payments from the father by obtaining money withheld from the father's wages. For each month from November 1986 through April 1987, Ms. Hairston received the $50 "pass through" mandated by W.Va.Code, 48A-2-12(a)(1) [1986]. ¹ At the same time, WVDHS retained a portion of the child support collected each month equal to the amount of the AFDC cash assistance paid to Ms. Hairston in that month. ² Ms. Hairston also received a portion of the child support collected each month equal to the amount by which court ordered child support exceeded the AFDC cash assistance grant in that month. ³ Finally, the WVDHS retained all child support collected above the court-ordered support amount for Ms. Hairston as reimbursement for past AFDC cash assistance paid to the Hairston family ⁴.

On 16 March 1987 WVDHS notified Ms. Hairston that her family's AFDC cash assistance benefits would be terminated in April because child support was being collected in excess of the AFDC grant. Ms. Hairston was allegedly told by her case worker that she would continue to receive food stamps and that she would continue to have Medicaid coverage. Then, on 18 March 1987 WVDHS notified Ms. Hairston that her eligibility for food stamps would be terminated unless she verified the amount of child support collected by WVDHS from the children's father. In response to this notice, Ms. Hairston explained to her case worker that she did not know how much child support had been collected by WVDHS because the payments went directly to WVDHS and not to Ms. Hairston. She was allegedly told by her economic services worker that he would obtain the necessary information from the child support worker, and her food stamp eligibility and Medicaid eligibility would be continued.

However, in April 1987 Ms. Hairston did not receive either food stamps or her Medicaid card. When she called WVDHS to inquire, she was told that her food stamp case had been closed for her failure to verify the amount of child support collected by WVDHS. Ms. Hairston was given no notice of the decision to terminate her food stamp eligibility, and was given no opportunity to contest that decision.

On 10 April 1987 WVDHS received a payment of $260.50 as child support from the father of Ms. Hairston's children. Ms. Hairston did not receive any portion of this child support collected by the WVDHS in April although more than ten days had elapsed since WVDHS received the child support payment. ⁵ Ms. Hairston's only income in April 1987 was the $50.00 "disregard" paid from the child support payments collected in March of 1987 and $76.00 of child support paid by the father in December 1986 and March 1987. The Hairston family could not meet their basic expenses for food, rent, utility bills, etc. In addition, one of Mrs. Hairston's sons went to the hospital or doctor's office five times in April 1987.

Ms. Hairston began this action to collect AFDC moneys, food stamps and Medicaid coverage that had been wrongfully terminated by the WVDHS. She also wanted timely disbursement to her of the child support payments collected by the WVDHS on her behalf as required by W.Va.Code, 48A-2-12(a) [1986]. After the filing of this action, Ms. Hairston had her child support benefits and food stamps reinstated and the problems peculiar to Ms. Hairston's case have been resolved. Thus, respondents raise the issue of mootness. However, the problem of late payments per se by the WVDHS is an issue to be addressed because without court relief the problems of near starvation and financial desperation that Ms. Hairston has encountered are likely to recur.

I

In State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1983), we held that a case will not be rendered moot if "such issues are capable of repetition and yet will evade review." We outlined three considerations in Kinder for determining exceptions to the mootness doctrine: (1) Whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; (2) whether questions of great public interest should be addressed for the future guidance of the bar or the public; and (3) whether the issues may be repeatedly presented yet escape review because of their fleeting nature. Clearly, Ms. Hairston's situation meets all three Kinder criteria.

Similar delays in future payments may occur over and over again for Ms. Hairston, or for any other obligee entitled to disbursement of child support within ten days of receipt by WVDHS. Recognition of the multitude of other obligees entitled to disbursement within ten days of receipt meets the second Kinder consideration and Ms. Hairston's original problem should be addressed to provide future guidance for public officials. Guidance on this question serves the public interest by assuring that funds paid for child support are directed to the children who need them in accordance with the time limits prescribed by the legislature. By the very nature of the short (ten day) limitation in question, the issue may repeatedly be presented yet escape review when late payment is made. The U.S. Supreme Court has phrased this condition as "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." Gannett Co. v. De Pasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979) quoting from Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975).

II

W.Va.Code, 48A-2-1 [1986] establishes the Child Advocate Office, which is an internal division of the Department of Human Services. The Child Advocate Office is charged by W.Va.Code, 48A-2-13 [1986] with receiving payments of support issued to an obligee who applies for or receives services of the Child Advocate Office as well as with receiving payments of support from an obligor who requests that support payments be made to the Child Advocate Office. The Child Advocate Office is charged by W.Va.Code, 48A-2-12(a) [1986] with distributing sums collected either as child or spousal support within ten days of receipt, except as otherwise provided under W.Va.Code, 48A-2-12(a) [1986].

Upon receipt of payments of child or spousal support, the Child Advocate Office, through the WVDHS, deposits money received with the State Treasury under the system described in W.Va.Code, 12-2-2 [1983]. The WVDHS then requests that a payment be made through the State Department of Finance and Administration, the Office of the Auditor, and the State Treasurer. This process requires 2-3 business days. If a weekend falls during this process the time lengthens to 4-5 days. Although the Treasurer performs the acts required of him in four hours and no later than one working day, much time is wasted by delivery of paperwork from office to office. After all offices have performed their functions, the completed warrants are picked up by the Department of Human services for distribution. The Hairston family is a victim of this waste of time in delivering child...