Howell v. Goode

• Decision Date: 06 February 2009
• Docket Number: No. 34145.,34145.
• Citation: 674 S.E.2d 248
• Court: West Virginia Supreme Court
• Parties: Ulissa HOWELL, Petitioner Below, Appellant v. John GOODE, Respondent Below, Appellee.

674 S.E.2d 248

Ulissa HOWELL, Petitioner Below, Appellant v. John GOODE, Respondent Below, Appellee.

No. 34145.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 2009.

Decided February 6, 2009.

Syllabus by the Court

1. "In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

4. "The duty of a parent to support a child is a basic duty owed by the parent to the child[.]" Syl. Pt. 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991).

5. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

6. "In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meaning." Syl. Pt. 1, Tug Valley Recovery Center, Inc. v. Mingo Co. Comm'n, 164 W.Va. 94, 261 S.E.2d 165 (1979).

7. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

8. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).

Jodie K.R. Gardill, Bridge A. Remish, Mathew Irby, Legal Aid of West Virginia, Wheeling, Counsel for the Appellant.

Gary L. Rymer, Rymer & Furbee, Middlebourne, Counsel for the Appellee.

PER CURIAM.¹

This is an appeal by Ulissa Howell (hereinafter "Appellant") from a September 24, 2007, order of the Circuit Court of Tyler County affirming an August 3, 2007, order of the Family Court of Tyler County denying the Appellant's petition to extend the child support obligations of her former husband, John Goode (hereinafter "Appellee"), during the period in which their son, R.J.,² remained in high school. Subsequent to thorough review of the briefs, arguments of counsel, and the record as provided to this Court, the order of the Circuit Court of Tyler County is reversed, and this case is remanded with directions to enter an order extending the Appellee's child support obligation to October 16, 2007, the date upon which R.J. attained the age of twenty.

I. Factual and Procedural History

The Appellant and the Appellee were divorced on February 9, 1995, and the Appellant was granted custody of the parties' son, R.J., born October 16, 1987. The Appellee was ordered to pay child support. By order dated April 21, 2005, the child support amount was modified, and that order specified as follows with regard to child support:

Said Child Support shall continue until said child reaches the age of 18 or is sooner emancipated; provided that said Child Support shall continue after the age of 18 if said child is enrolled in high school or vocational school and making substantial progress toward a degree in said high school or vocational school; and further provided that such payments shall not extend past the child's expected graduation date of June, 2006, without further Order of this Court.

On March 29, 2006, the Appellant initiated the action currently before this Court by filing a pro se petition requesting the Family Court of Tyler County to order continued child support beyond R.J.'s eighteenth birthday. A final hearing on the Appellant's motion was conducted by the family court on May 17, 2007. The Appellant presented evidence through her own testimony and the testimony of R.J.'s special education instructor and case manager, Ms. Kimberly Gongola. The evidence indicated that R.J. had been diagnosed³ with a learning disability, had been identified by Wetzel County Schools as disabled within the meaning of the Individuals with Disabilities Education Act (IDEA),⁴ and had been receiving learning disability services since his first year in elementary school. An Individualized Education Plan (hereinafter "IEP") had been formulated for R.J., and educational goals and transition plans had been developed through the IEP Team. The evidence indicated that recent IEP goals had provided for a transition plan, including work-study programs designed to educate R.J. within the setting of local businesses, including a work-study opportunity as a statistician with a local newspaper.

The evidence further indicated that R.J. was enrolled as a full-time student at Magnolia High School in New Martinsville, Wetzel County, West Virginia, and had not yet received a diploma from any high school or vocational school. Although R.J. had completed all minimum core courses required by the State of West Virginia for graduation from high school, Ms. Gongola explained that he had not yet progressed on the goals identified by his IEP to the extent that he would be employable without significant assistance from his instructors at the high school. School administrators had determined that R.J. had not transitioned to the point where he could be gainfully employed and that additional education was necessary.⁵

The family court entered an order, dated August 3, 2007, finding that the Appellee's child support obligation concluded on May 31, 2006, noting that R.J. had completed all the minimum requirements of the State of West Virginia and Wetzel County by May 2006. The circuit court refused the Appellant's petition for appeal by order entered September 24, 2007. This Court granted the Appellant's petition for appeal on May 22, 2008. Having remained enrolled as a full-time student at Magnolia High School since the initiation of this action, R.J. reached the age of twenty of October 16, 2007, and he ultimately received his high school diploma in June 2008.

II. Standard of Review

In establishing a standard of review for examining a lower tribunal's rulings, this Court has consistently held as follows:

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Moreover, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995); see also Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."). Based upon the guidance of these standards, we address the merits of this appeal.

III. Discussion

West Virginia Code § 48-11-103 (2002) (Repl. Vol. 2004)⁶ provides that child support may be extended beyond the date upon which the child reaches the age of eighteen under certain delineated circumstances. In pertinent part, that statute provides as follows:

Upon a specific finding of good cause shown and upon findings of fact and conclusions of law in support thereof, an order for child support may provide that payments of such support continue beyond the date when the child reaches the age of eighteen, so long as the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma: Provided, That such payments may not extend past the date that the child reaches the age of twenty.

W. Va.Code § 48-11-103(a) (emphasis supplied).

The West Virginia Legislature explained its general intent with respect to child support issues in West Virginia Code § 48-11-101(a) (2001) (Repl. Vol. 2004), as follows:

It is one of the purposes of the Legislature in enacting this chapter to improve and facilitate support enforcement efforts in this state, with the primary goal being to establish and enforce reasonable child support orders and thereby improve opportunities for children. It is the intent of the Legislature that to the extent practicable, the laws of this state should encourage and require a child's parents to meet the obligation of providing that child with adequate food, shelter, clothing, education, and health and child care.

In conformity with the intent enunciated by the Legislature, this Court has succinctly stated that "[a] parent's duty to support his/her child(ren) has long been recognized to be an integral part of the rubric of parental responsibilities." In re Stephen Tyler R., 213 W.Va. 725, 740, 584 S.E.2d 581, 596 (2003) "The duty of a parent to support a child is a basic duty owed by the parent to the child[.]" Syl. Pt. 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991). I...