Hartley v. Ungvari, No. 15877

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

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.

Page 635

[173 W.Va. 584] 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,[173 W.Va. 585] 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.

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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 [173 W.Va. 586] 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

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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...