Kathy L.B. v. Patrick J.B.
| Decision Date | 01 July 1988 |
| Docket Number | No. 18201,18201 |
| Court | West Virginia Supreme Court |
| Parties | KATHY L.B. v. PATRICK J.B., JR. |
1. In a paternity action under W.Va.Code, 48A-6-1, et seq., the mother may recover the birth expenses enumerated in W.Va.Code, 48A-1-3(20)(C) (1986), from the child's natural father.
2. Upon a judicial determination of paternity, the paternal parent shall be required to support his child under W.Va.Code, 48A-6-4 (1986), and may also be liable for reimbursement support from the date of birth of the child. The right of reimbursement support on behalf of the custodian of the child is subject to the doctrine of laches.
3. A court or master in a paternity suit may, as an incident to support, order the defendant to procure and maintain hospitalization and health care insurance for the child, subject to the limitations contained in W.Va.Code, 48-2-15(b)(3) (1986).
4. A plaintiff who applies for a support order under W.Va.Code, 48A-5-1 (1986), may, in the discretion of the trial court, recover reasonable attorney's fees and costs.
This case involves novel questions relating to the remedies available under our paternity statute, W.Va.Code, 48A-6-1, et seq. These questions are: (1) whether the statute authorizes the recovery of retroactive child support and of birth-related hospital and medical costs; (2) whether the court or master may order the defendant to procure and maintain hospitalization and health care insurance for the child; and (3) whether the statute authorizes the recovery of attorney's fees and costs.
We summarize the facts as they were developed below. Kathy L.B., the plaintiff, and Patrick J.B., Jr., 1 the defendant, met in July, 1984, and cohabitated at the defendant's home in Parkersburg from September, 1984, until March, 1986. While the two seriously contemplated marriage, and even applied for and obtained a license, they were never married.
On August 1, 1985, the plaintiff was informed by her physician that she was pregnant. She continued to live with the defendant, but moved out of the home in early March, 1986, after a dispute over the unborn child's surname. On March 28, 1986, the plaintiff delivered a baby daughter.
Two weeks after the birth of the child, the defendant accompanied the plaintiff to the office of the circuit clerk of Wood County. There he executed a declaration of paternity in which he stated, under oath, that he was the child's natural father. 2 The declaration, and the accompanying affidavit, were transmitted to the state registrar of vital statistics in Charleston for recordation.
This suit was filed on April 30, 1986, in the Circuit Court of Wood County. The plaintiff averred in her complaint that the defendant was the child's natural father and demanded custody of the child, reasonable child support, and attorney's fees and costs. As an incident to the child support, she also sought to require the defendant to procure and maintain hospitalization and health care insurance for the child.
On May 12, 1986, the plaintiff moved for the entry of a pendente lite order to award her temporary custody and child support. The defendant filed a written objection to the motion in which he contended that the paternity statute did not authorize pendente lite relief. The circuit court denied the plaintiff's motion orally and by order dated October 28, 1986.
The defendant answered the complaint on May 21, 1986, and specifically denied paternity of the child. He also filed a counterclaim which, in the alternative, prayed for custody of the child and reasonable child support.
A pretrial order entered by the court on August 15, 1986, required the parties and the child to submit to blood grouping tests. These tests were delayed until the child attained the age of six months. The test results showed a 91 percent statistical probability that the defendant was the child's natural father.
A two-day bench trial was held on November 14, 1986, and January 5, 1987. In a final order dated March 11, 1987, the circuit court determined by clear and convincing evidence that the defendant was the child's natural father. The order awarded permanent custody of the child to the plaintiff and directed the defendant to pay the sum of $500 per month as child support. These payments were to commence on January 1, 1987. 3
The plaintiff objected to the order in three respects: (1) it required the payment of child support prospectively only, and not retroactively to the child's date of birth; (2) it did not require the purchase and maintenance of hospitalization and health care insurance for the child; and (3) it did not require the payment of attorney's fees and costs. This appeal followed.
We preface our discussion of the issues with a brief review of the history of paternity law in West Virginia. A father did not, at common law, owe a duty of support to a child born out of wedlock. Such a child was, therefore, deemed to be filius nullius and a public ward. 1 H. Clark, The Law of Domestic Relations in the United States § 5.4 (1987); 4 Family Law & Practice § 63.01 (1987). To correct this obvious inequity, and to lessen the strain on the public purse, many states passed statutes to impose a duty of support upon the father. 4 As early as 1849, Virginia adopted a procedure to determine the paternity of an out-of-wedlock child and to compel the father to pay sums "for the maintenance of the said child[.]" Va.Code ch. 125 (1849). This statute was carried into West Virginia law upon statehood. 1863 W.Va.Acts ch. 60 (passed Oct. 8, 1863); W.Va. Const. art. XI, § 8 (1863).
For the next 120 years, the procedure provided for in our paternity statute was quasi-criminal in nature. 5 The 1969 statute is representative. A married 6 or unmarried mother could appear before a justice of the peace and "accuse" another of being the father of her child. The justice would examine the woman under oath, record her testimony, and issue a warrant for the arrest of the putative father. Once in custody, the accused was required to enter into a recognizance to assure his appearance and compliance with any future court order. W.Va.Code, 48-7-1 (1969). When he appeared before the justice, the accused was called upon to plead "guilty" or "not guilty." He was to be apprised of his right to counsel and, if indigent, counsel was to be appointed to represent him. W.Va.Code, 48-7-4 (1969).
This procedure was abolished by the Legislature in 1983. Senate Bill 300 7 incorporated the paternity procedure into W.Va.Code ch. 48, art. 7, which dealt with the topic of intrastate child support. Specifically, W.Va.Code, 48-7-4 (1983), replaced the former paternity procedure with a civil suit to be commenced by the mother, by any person with custody of the child, or by the child. Suit could be brought any time before the child's tenth birthday.
In 1986, our paternity statute was amended by House Bill 2094, 8 the Family Obligations Enforcement Act, which is contained in W.Va.Code, 48A-1-1, et seq. This act was a comprehensive measure to broaden the State's role in the enforcement of support obligations via the family law master and child advocate systems. It commissioned the child advocate office to represent the interest of children in most family law matters. W.Va.Code, 48A-2-2(b) (1986), expressly states that the establishment of paternity in disputed cases is to be one of the primary responsibilities of the office. The procedure to be applied in paternity cases was also modified by the act, and recodified at W.Va.Code ch. 48A, art. 6. It is the 1986 statute which is applicable to the case at hand. 9
W.Va.Code, 48A-6-4 (1986), provides that after paternity has been proved, the court or master must order the defendant to provide support for the child. 10 This court-ordered support is not intended merely to assure the child's subsistence, but to allow the child to share meaningfully in the parent's resources. This is clear from the comprehensive support guidelines contained in W.Va.Code, 48A-2-8 (1986), which are made applicable "to cases of divorce, paternity, actions for support, and modifications thereof." W.Va.Code, 48A-2-8(e) (1986). Such uniformity in support guidelines is compatible with our 1983 support statute. Under the 1983 statute, a parent's duty of support was to be construed consistently with our divorce statute, as illustrated by W.Va.Code, 48-7-2 (1983):
"This article shall be construed in pari materia and applied whenever possible to aid in the enforcement of the provisions of article two [§ 48-2-1 et seq.] of this chapter relating to pendente lite decrees in divorce or separate maintenance, final decrees and modification of any such decrees, and the provisions of article nine [§ 48-9-1 et seq.] of this chapter, relating to reciprocal proceedings in other states: Provided, That the remedies established by this article shall be cumulative to and not in lieu of other remedies provided by law, except as otherwise expressly set forth in this article."
We turn now to the issues raised by the parties on appeal. We address first the assertion by the plaintiff that the circuit court improperly denied her request for reimbursement for hospital and medical costs incident to the birth. We observe that nothing in our paternity statute, expressly or by implication, precludes child support from covering the payment of expenses for the birth of the child. Moreover, by tying the support guidelines in W.Va.Code, 48A-2-8(e) (1986), to "paternity" actions, the legislature must have intended the term "support" as defined in the act to cover paternity support.
We are reinforced in this view by the language in the paternity statute, W.Va.Code, 48A-6-4 (1986), which requires the setting of support once the defendant is found liable "in accordance with the provisions of this chapter." As previously pointed out, the definition of "support" is...
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