In re K.S.

Decision Date28 April 2022
Docket Number21-0180
Parties IN RE K.S.
CourtWest Virginia Supreme Court

P. Todd Phillips, Esq., Lyons Phillips Legal Group PLLC, Morgantown, West Virginia, Counsel for Petitioner G.H.

Cheryl L. Warman, Esq., Morgantown, West Virginia, Counsel for Respondent S.S.

Patrick Morrisey, Esq., Attorney General, Lee Niezgoda, Esq., Assistant Attorney General, Fairmont, West Virginia, Counsel for Respondent DHHR.

Stephanie Nethken, Esq., Westover, West Virginia, Guardian ad litem.

WALKER, Justice:

Shortly after K.S. was born in 2009, her parents split up and her father, Petitioner G.H., was ordered to pay her mother, S.S., $248 per month in child support.1 Ten years later, K.S. was placed in Petitioner's custody after she was removed from S.S.’s home because of a child abuse and neglect petition. The circuit court suspended Petitioner's child support obligation when he took custody of K.S., but he owed nearly $25,000 in past unpaid child support and interest. Claiming that paying the past due child support would be a burden on his family's finances and contrary to the best interest of K.S., Petitioner filed a motion to discharge the child support arrearage. The circuit court denied the motion, finding that it was prohibited from retroactively modifying or canceling child support awards, except in limited circumstances not present here.

On appeal, Petitioner urges this Court to create an exception permitting a court to cancel accrued child support owed by a custodial parent to a person whose parental rights have been terminated, as eventually happened to S.S. Respondent Department of Health and Human Resources (DHHR), the child's mother, and the child's guardian ad litem support the circuit court's order. Because West Virginia Code § 48-1-205 (2015) plainly provides that "a child support order may not be retroactively modified so as to cancel or alter accrued installments of support[,]" we affirm the circuit court's order.


K.S.’s parents, who never married, separated a few months after she was born in 2009. The DHHR's Bureau for Child Support Enforcement (BCSE) started providing services to the child's mother and filed an action in the Family Court of Monongalia County to establish Petitioner's child support obligation.2 In 2009, the family court ordered Petitioner to pay the mother $248 a month in child support. Petitioner did not appeal this ruling.

In February 2019, the DHHR filed a petition in the Circuit Court of Monongalia County alleging that K.S.’s mother was an abusive and neglectful parent as a result of her substance abuse.3 Because no allegations were made against Petitioner,4 the child was placed in his custody and the circuit court suspended Petitioner's child support obligation, effective when the child's custody changed. But Petitioner still owed nearly $25,000 for unpaid child support including interest.

The child's mother stipulated to the allegations in the petition, she was adjudicated, and granted an improvement period. While these proceedings were pending, she filed a petition for contempt in family court seeking to enforce the 2009 child support order. The family court conducted a hearing on her motion and issued a Contempt and Judgment Order on July 8, 2019.5 The family court noted that the custodial and decision-making responsibility for the child was governed by the order entered by the circuit court in the child abuse and neglect proceeding, and held that Petitioner "has a child support arrearage in the amount of $24,938.65 through January 31, 2019." But it did not distinguish how much Petitioner owed to the child's mother and the BCSE, respectively. Petitioner did not appeal the family court's order.

As the abuse and neglect matter moved toward disposition, in May 2020 Petitioner filed a motion to discharge the child support arrearage he owed to the mother. He did not seek to discharge the arrearage owed to the BCSE. According to Petitioner's motion, he claimed that he owed the mother $9,711.78 in principal and $5,521.07 in interest as of June 8, 2020. In his affidavit attached to the motion, Petitioner stated, in part:

I paid support to [the mother] for a time, but stopped when I learned that [she] was buying drugs with the child support money delivered to her through BCSE. [The mother] was living with her mother and had few, if any, expenses. The child support payments provided [the mother] with extra money to spend on illegal substances. I purchased items, such as clothes, diapers, diaper wipes and formula and delivered these to [the mother] to assist her in caring for my daughter.
[The mother] and I reunited three more times before this action commenced in February 2019. In all, [K.S.], [the mother] and I lived together on four occasions, for a total of 2-3 years before February 2019. At these times, I worked full-time and provided all, or nearly all of [K.S.]’s financial support. [The mother] had no steady employment during this time. She was either unemployed or worked an occasional house-cleaning job....
[The mother]’s lack of employment remained at times when I was not living with [K.S.] and [her] prior to the institution of this action. [The mother] lived with [S.M.] during a large portion of this time, and I believe that [he] likely supported [K.S.]’s needs when he and his son, [B.M.], were living with [K.S.] and [the mother].

Petitioner also stated by affidavit that in addition to having sole custody of K.S. since February 2019, he also shared custody of his daughter, E.H., and supported his fiancé who was about to give birth to his child. Petitioner stated that if he were required to pay past due child support to K.S.’s mother, it "would create a burden on our family's finances and would be adverse to [K.S.]’s interest. [She] would be deprived of the resources she needs if I were required to make arrearage payments to" the mother. The circuit court ordered briefing on this motion.

At the disposition hearing, the circuit court involuntarily terminated the mother's parental rights.6 In its December 2019 order, the circuit court found that the mother had failed to remedy her substance abuse and there was no reasonable likelihood that she could correct the conditions of abuse and neglect.

In November 2020, the circuit court held a hearing on Petitioner's motion to discharge the child support arrearage owed to the mother.7 Petitioner acknowledged that a child support arrearage is generally not dischargeable but claimed this was an unusual case where an arrearage is owed by a custodial parent of a child to an individual whose parental rights were terminated. Petitioner argued that the most analogous case was Costello v. McDonald ,8 where this Court was asked to determine whether child support arrearage at the time of the death of the parent owed the funds should be recoverable as an asset of her estate.9 Petitioner argued that since the mother's parental rights to the child had been terminated, she was in a similar situation to that of a deceased parent. Petitioner claimed that he could overcome the rebuttable presumption created by Costello10 —that the mother had expended additional money in caring for the child in light of his failure to pay child support—because he provided the mother with necessities for the child. Petitioner also argued that ordering him to pay the past due child support to the mother now created an absurdity because she would be obligated to return it to him—as an offset—since the child was now in his custody and she would presumably owe him child support although the circuit court had not yet ordered it. Petitioner offered alternatives, such as paying the arrearage into a college fund for the child to ensure that she got the benefit of the child support.

The mother argued against Petitioner's attempt to liken her to a deceased parent. She also noted that the family court entered a decretal judgment against Petitioner and he failed to appeal that order. Petitioner responded that the family court lacked jurisdiction to rule on the child support issue because the abuse and neglect proceeding was in circuit court. The mother replied that the law is clear that a child support order cannot be retroactively modified or canceled. The guardian for the child agreed that the mother was owed the arrearage for the time the child was in her custody and suggested that the circuit court order the mother to pay Petitioner child support for the time the child had been in his custody, beginning February 2019.

The circuit court denied Petitioner's motion, finding that it was prohibited from retroactively modifying the support order entered by the family court except in the case of fraud or other circumstance involved in the procurement of the award, which was not present here. The circuit court concluded that this case was not analogous to Costello . It stated that had Petitioner requested child support during the proceedings, he could have offset his arrearage. The circuit court entered its order denying Petitioner's motion on February 19, 2021.11

After his motion was denied, Petitioner filed a motion seeking child support from K.S.’s mother. The circuit court held a hearing on the matter and ordered the mother to pay $248 in monthly child support to Petitioner, effective February 1, 2021.


In a child abuse and neglect case, we give deference to the circuit court's factual findings and conduct an independent review of questions of law:

Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is

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