Hartley v. Ungvari

• Court: West Virginia Supreme Court
• Writing for the Court: McHUGH
• Citation: Hartley v. Ungvari, 173 W.Va. 583, 318 S.E.2d 634 (W. Va. 1984)
• Decision Date: 13 July 1984
• Docket Number: No. 15877,15877
• Parties: Carol Jean HARTLEY v. Steven Frank UNGVARI.

Page 634

318 S.E.2d 634

173 W.Va. 583

Carol Jean HARTLEY v. Steven Frank UNGVARI.

No. 15877.

Supreme Court of Appeals of West Virginia.

July 13, 1984.

Syllabus by the Court

1. Under the provisions of W.Va.Code, 48-2-15 [1980], where a divorce is granted upon constructive service of process and the divorce order grants custody of a child but makes no further provision for the support of that child, the custodial parent may maintain an action against the noncustodial parent, upon obtaining personal jurisdiction thereof, for reimbursement of reasonable past support expenditures furnished to the child by the custodial parent since the divorce unless, because of circumstances, the custodial parent is estopped from asserting the action.

2. " 'Where a party knows his rights or is cognizant of his interest in a particular subject-matter, but takes no steps to enforce the same until the condition of the other party has, in good faith, become so changed, that he cannot be restored to his former state if the right be then enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right. This disadvantage may come from death of parties, loss of evidence, change of title or condition of the subject-matter, intervention of equities, or other causes. When a court of equity sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.' Syllabus Point 3, Carter v. Price, 85 W.Va. 744, 102 S.E. 685 (1920); Syllabus Point 2, Mundy v. Arcuri, W.Va., 267 S.E.2d 454 (1980)." Syl. pt. 5, Laurie v. Thomas, W.Va., 294 S.E.2d 78 (1982).

Joseph W. McFarland, Redmond & McFarland, Parkersburg, for appellant.

R. Edison Hill, Charleston, for appellee.

McHUGH, Chief Justice:

This action is before this Court upon the appeal of Steven Frank Ungvari, the appellant, from an order of the Circuit Court of Jackson County in which that court awarded to Carol Jean Hartley, the appellee, limited reimbursement of past child support and attorney fees and prospective child support and attorney fees. The issues to be resolved by this Court are whether the trial court had the authority to award reimbursement of past child support expenditures and attorney fees to the appellee and whether it did so properly. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

The appellant and the appellee were married on November 25, 1967. Their daughter, Heather, was born on January 3, 1969. In 1972, the appellee left the marital home in New York with her daughter, and moved into her parent's home in Ravenswood, West Virginia. On July 2, 1973, the appellee obtained a divorce from the appellant in the Circuit Court of Jackson County upon constructive service of process. Consequently, in the final divorce order, the circuit court expressly reserved jurisdiction to award alimony, child support and attorney fees in the event personal jurisdiction is later acquired of the appellant.

Over the next nine years, the appellant frequently visited his daughter in West Virginia. During these visits, the appellant would give the appellee money for the support of his daughter, and he would frequently take his daughter on shopping trips to buy her clothing and other necessities. In addition, the appellant would periodically send the appellee checks for the support of his daughter. Over the period of 1973-1981, the appellant estimated his total contribution to the support of his daughter to be approximately $12,000. The circuit court, applying a five-year statute of limitations to the appellee's request for reimbursement of child support, calculated the appellant's contribution to the support of his daughter to be $4,205.09 over the period of 1977-1981.

On December 29, 1981, the Circuit Court of Jackson County obtained personal jurisdiction over the appellant when he was served with the appellee's petition for an award of child support while he was in this State visiting his daughter. On March 5, 1982, the court entered an order awarding the appellee temporary child support in the amount of $300.00 per month pending a subsequent hearing on the issues of child support and attorney fees. Following the hearing, the circuit court, in an order entered June 4, 1982, applied a five-year statute of limitations and awarded the appellee $10,731.25 plus interest as reimbursement for past child support expenditures and $325 as reimbursement for past attorney fees. The circuit court further awarded the appellee permanent child support in the amount of $300 per month until the daughter reaches the age of 18 or is otherwise emancipated. ¹

The issue concerning the power of the trial court to award reimbursement of past child support expenditures revolves around the meaning of language found in W.Va.Code, 48-2-15 [1980]. It provides, in pertinent part, as follows:

In any case where a divorce is granted in this State upon constructive service of process, and personal jurisdiction is thereafter obtained of the defendant in such case, the court may make such further order as it shall deem expedient, concerning the maintenance of the parties, or either of them, or concerning the care, custody, education and maintenance of the minor children....

Both parties focus upon different language in this statutory provision to support their respective positions. The appellant argues that the word "further," as contained in the above statute, indicates a clear intent on the part of the legislature to only provide a prospective remedy with respect to child support. The appellee contends, on the other hand, that the inclusion of the word "expedient" in this statute authorizes a trial court to award whatever support it deems necessary for the maintenance of the minor children, including reimbursement to a custodial parent of past child support expenditures. The appellee further asserts that the trial court's authority to award such reimbursement emanates from the continuing duty of parents to support their minor children regardless of judicially determined support obligations.

Many jurisdictions have held that where a divorce order grants custody of a child to a parent and no other provision is made for the support of the child, the support obligations of the noncustodial parent are not terminated and under the proper circumstances, the noncustodial parent may be liable to the custodial parent for reimbursement of support furnished to the child after the divorce. See generally H. Clark, Law of Domestic Relations § 15.1 (1968); Annot., 91 A.L.R.3d 530 (Supp.1983); 24 Am.Jur.2d Divorce and Separation § 1095 (1983); 27B C.J.S. Divorce § 319(1)(c) (Supp.1984). On the other hand, as noted in the editorial summary of Annot., 91 A.L.R.3d 530 (Supp.1983):

[I]t has been held that a father is not liable to the mother for support of a child after a divorce decree granting the mother custody without providing for support of the child, where the father was financially unable to furnish support, where the mother furnished the support without expectation of reimbursement, or where the father had supplied the child with his reasonable needs.

(footnotes omitted).

In Gill v. Gill, 56 Ill.2d 139, 306 N.E.2d 281 (1973), the Supreme Court of Illinois was confronted with a factual situation similar to the case now before this Court. In Gill, the plaintiff mother had received a divorce from the defendant father by constructive service of process and was awarded custody of their son. In granting the divorce, the trial court had "reserved the question of child support, alimony and attorney's fees." 56 Ill.2d at 141, 306 N.E.2d at 282. Approximately 15 years later, personal jurisdiction was obtained of the defendant by the trial court and the plaintiff sought reimbursement from the defendant for support expenditures furnished to the child since the divorce. The trial court subsequently awarded the plaintiff $13,500 as reimbursement for support furnished to the child from the date of the original divorce to the date of the child's eighteenth birthday: a total of 13 years.

In affirming the trial court's reimbursement award, the court in Gill reasoned that the obligation of a parent to support his or her minor child is a duty that begins at the birth of the child and continues throughout the minority of the child. ² It is a duty that is not affected by a divorce between the parents nor the award of custody to one of them. "It is not their fault that their parents have been divorced." 56 Ill.2d at 144, 306 N.E.2d at 283, quoting Kelley v. Kelley, 317 Ill. 104, 110, 147 N.E. 659, 662 (1925). The court further stated that its decision to allow such reimbursement conforms with

the view held in the majority of jurisdictions that when a divorce decree provides for the custody of a child but is silent as to the question of child support, a mother may maintain an action against her former husband for moneys expended by her after the decree to support the child.

56 Ill.2d at 144, 306 N.E.2d at 283.

In Marks v. Mitchell, 90 W.Va. 702, 111 S.E. 763 (1922), this Court impliedly acknowledged that a custodial parent may seek reimbursement of child support expenditures from the noncustodial parent. In that case we held, inter alia, that although a subsequent award of child custody and alimony to the ex-wife was void for lack of personal jurisdiction over the ex-husband, the ex-wife's attachment of the ex-husband's partial interest in real estate for purposes of reimbursement of support furnished to their children was valid and was improperly dismissed by the trial court.

Based upon all of the above, we hold that under the provisions of W.Va.Code, 48-2-15 [1980], where a divorce is granted upon constructive service of process and the divorce order grants custody of a child but makes no further provision for the support of that child, the custodial parent may maintain an action against the noncustodial parent, upon...