Hopkins v. Yarbrough, No. 14861

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 168 W.Va. 480,284 S.E.2d 907
• Parties: Joan Claire HOPKINS v. Allen H. YARBROUGH, III.
• Docket Number: No. 14861
• Decision Date: 11 December 1981

Page 907

284 S.E.2d 907 168 W.Va. 480 Joan Claire HOPKINS
v.
Allen H. YARBROUGH, III. No. 14861. Supreme Court of Appeals of West Virginia. Dec. 11, 1981.

Syllabus by the Court

In the absence of fraud or other judicially cognizable and harmful circumstance in the procurement of a decree for child support, a circuit court is without authority to modify or cancel arrearages of a former husband's child support payments, which payments accrued prior to the date of the adoption of such children by the wife's subsequent husband. W.Va.Code, 48-4-5 [1969].

Robert L. Godbey, Huntington, for appellant.

Broh, Vital & Neuner and Richard Vital, Barboursville, for appellee.

McHUGH, Justice:

This action is before this Court upon the petition of Joan Claire Hopkins (hereinafter "appellant") for an appeal from the final orders of the Circuit Court of Cabell County, West Virginia. The circuit court held that inasmuch as the present husband of the appellant had adopted the appellant's two minor children, the appellee, Allen H. Yarbrough, III, was relieved from all obligations to the children including arrearages in child support. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

According to the petition, the appellant and the appellee, Allen H. Yarbrough, III, were married on August 14, [168 W.Va. 481] 1965. However, by order entered May 10, 1973, in the Domestic Relations Court of Cabell County, the parties were divorced. ¹ Pursuant to

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that order, the appellant was to receive custody of the parties' two minor children and $50.00 per month as alimony. The appellee was ordered to pay $400.00 per month as support and maintenance for the children. Furthermore, the circuit court ratified, approved and confirmed the parties' property settlement agreement.

On April 9, 1976, the appellant married her present husband, Dale W. Hopkins, and the appellee was relieved by court order of further alimony payments. On July 2, 1979, the appellant's present husband adopted the parties two minor children. The adoption took place in Colorado, and the appellee was present and represented by counsel.

The record indicates that the appellee failed to comply in several respects with the May 10, 1973, divorce decree of the Domestic Relations Court of Cabell County. Among other things, child support payments were in arrears, and the appellant instituted various proceedings seeking relief in Cabell County against the appellee. Subsequently, the appellee filed a petition in the Circuit Court of Cabell County praying that he be relieved from child support payments. In that petition, the appellee alleged that the children had been adopted by the appellant's present husband.

On October 25, 1979, a hearing was held in the circuit court upon the appellee's petition for relief from payment of child support and upon prior orders of the circuit court entered in favor of the appellant requiring the appellee to make such payments. No evidence was taken at that hearing.

By order entered on November 8, 1979, the Circuit Court of Cabell County denied the motion of the appellant to [168 W.Va. 482] establish the appellee's child support arrearages as a sum certain. Specifically, the circuit court held that, as a result of the adoption, the appellant had, from the date of divorce to the date of adoption and thereafter, forfeited her right to enforce the payment of child support. The appellee was relieved of all payments to the appellant "past, present and future." ²

By order entered November 20, 1979, the circuit court overruled the motion of the appellant to set aside the circuit court's order of November 8, 1979. Subsequently, by order entered March 31, 1980, the circuit court overruled the appellant's motion for attorney fees and court costs.

It is from the final orders of the Circuit Court of Cabell County that the appellant appeals to this Court.

The appellant is not seeking in this action to require the appellee to pay child support for any period of time subsequent to the July 2, 1979, adoption of her two children. Rather, the appellant contends that the Circuit Court of Cabell County was without authority to alter or cancel the liability of the appellee for unpaid child support payments which accrued prior to the adoption. Consequently, the appellant asks this Court to direct the circuit court to ascertain the specific amount of child support arrearages payable by the appellee.

In determining the appellee's liability for child support arrearages, this Court must consider the legal effect of the [168 W.Va. 483] Colorado order of adoption upon such arrearages. Moreover, this Court must consider the legal effect of the May 10, 1973, divorce decree which ordered the appellee to pay the appellant $400.00 per month in child support.

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In West Virginia, the legal effect of an order of adoption is described by statute. As W.Va.Code, 48-4-5 [1969], states, in part:

Upon the entry of such order of adoption, the natural parent or parents, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such parent or parents, except any such parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this State, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.

The legal effect of an order of adoption is also described by statute in Colorado, where the adoption of the appellant's two minor children by her present husband occurred. Comparable to the West Virginia statute, Colo.Rev.Stat., § 19-4-113, states as follows:

(1) After the entry of a final decree of adoption, the person adopted shall be, to all intents and purposes, the child of the petitioner. He shall be entitled to all the rights and privileges and be subject to all the obligations of a child born in lawful wedlock to the petitioner.

(2) The natural parents shall be divested of all legal rights and obligations with respect to the child, and the adopted child shall be free from all [168 W.Va. 484] legal obligations of obedience and maintenance with respect to the natural parents.

(3) Nothing in this article shall be construed to divest any natural parent or child of any legal right or obligation where the adopting parent is a stepparent and is married to said natural parent.

As indicated above, the appellant is not seeking child support payments from the appellee for any period of time subsequent to the adoption. However, the West Virginia and Colorado statutes do not expressly answer the question concerning the appellee's liability for child support arrearages which accrued prior to the adoption. Very few courts have discussed such question, and no cases on that point have been decided in West Virginia.

In C. v. R., 169 N.J.Super. 168, 404 A.2d 366 (1979), a motion to...