Kimble v. Kimble, No. 16600

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation176 W.Va. 45,341 S.E.2d 420
PartiesBetty Sue KIMBLE v. Lawrence Allen KIMBLE.
Docket NumberNo. 16600
Decision Date12 March 1986

Page 420

341 S.E.2d 420
176 W.Va. 45
Betty Sue KIMBLE
v.
Lawrence Allen KIMBLE.
No. 16600.
Supreme Court of Appeals of
West Virginia.
March 12, 1986.

Page 422

[176 W.Va. 46] Syllabus by the Court

1. The execution of consent to the adoption of a child by its custodial parent and the custodial parent's current spouse is [176 W.Va. 47] alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments.

2. A decretal child support obligation may not be modified, suspended, or terminated by an agreement between the parties to the divorce decree.

3. Where the welfare of the child has not been adversely affected, a custodial parent may be barred by the doctrine of equitable estoppel from seeking enforcement of the decretal obligation of a noncustodial parent who has executed formal consent to its adoption by the custodial parent and the custodial parent's current spouse in exchange for the release of that decretal obligation if the adoption is not consummated to the detriment or disadvantage of the noncustodial parent due to inaction on the part of the custodial parent.

4. Where the welfare of the child has been or becomes adversely affected, a custodial parent will not be barred by the doctrine of equitable estoppel from seeking reinstatement of the decretal support obligation of a noncustodial parent who has terminated child support payments pursuant to execution of formal consent to its adoption by the custodial parent and the custodial parent's current spouse in exchange for the release of that decretal obligation even if the adoption has not been consummated to the detriment or disadvantage of the noncustodial parent due to inaction on the part of the custodial parent.

5. Reinstatement of the decretal obligation of a noncustodial parent who has terminated child support payments pursuant to the execution of formal consent to its adoption by the custodial parent and the custodial parent's current spouse in exchange for the release of that decretal obligation shall be made retroactive to the date on which the welfare of the child became adversely affected by such termination in order that there exists no hiatus in support.

James F. Cain, Elkins, for appellant.

John T. Yeary, Sp. Asst. Atty. Gen., Dept. of Human Services, Charleston, amicus curiae.

Harry A. Smith, III, Elkins, for appellee.

McGRAW, Justice:

The appellant, Betty Sue Kimble, appeals from an order releasing her ex-husband, Lawrence Allen Kimble, the appellee, from his decretal obligation to pay support for their infant daughter based upon his consent for her adoption by the appellant and her present husband. The appellant concedes the propriety of this ruling had the adoption been finalized, but contends that failure to consummate the adoption resulted in a continuation of the appellee's duty to make child support payments. Although we agree that consent to an adoption or an agreement between former spouses to terminate an obligation to make child support payments in exchange for consent to an adoption are alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments, we hold that, in certain limited circumstances, where the welfare of the child has not nor will not be adversely affected, a custodial parent may be equitably estopped from seeking enforcement of the support obligation of a noncustodial parent who has executed formal consent to the adoption of the child by the custodial parent and the custodial parent's current spouse in exchange

Page 423

for the release of that decretal obligation if the adoption is not consummated to the detriment or disadvantage of the noncustodial parent due to inaction on the part of the custodial parent. Because no determination was made in the instant proceeding with respect to (1) whether the welfare of the child would be adversely affected by the appellee's release from either his past or future support obligation; (2) whether the adoption was not consummated due to inaction on the part of the appellant; and, (3) whether the failure to consummate the adoption has operated to the detriment or disadvantage of the appellee, we must remand the case for further factual development and entry of an order consistent with the opinion to follow.

On October 12, 1982, at the request of the appellant, the appellee executed formal consent to the adoption of his daughter by [176 W.Va. 48] the appellant and her husband. The quid pro quo for this consent was an agreement that the appellee would "no longer be responsible for any care or maintenance or support of said child, subject to the Court's approval." Following execution of this instrument, and in compliance with its terms, the appellee apparently ceased making child support payments and exercising his visitation and other parental rights. 1 One year after executing this consent, however, without warning, the appellee, who had never been informed that the adoption proceedings had not been completed, 2 was served a petition for delinquent child support payments, along with a request for modification to provide increased support in the future.

Although, following a hearing on the appellant's petition, the trial court did award delinquent child support that had accumulated through October 1982, it further held that "based upon his execution of a consent to the adoption of the parties' infant child ... [the appellee] is relieved and discharged as of the month of October, 1982, of any further responsibility for child support payments...." The trial court expressly relied upon West Virginia Code § 48-4-1a (1980 Replacement Vol.), 3 which at the time of the hearing provided, in relevant part, that, with the exception of consent given within seventy-two hours after the birth of a child and in the absence of fraud or duress, "no consent or relinquishment of legal custody for the adoption of a child ... shall be revocable." The trial court's apparent view, although unexpressed, was that the irrevocability of the consent automatically severed all ties between the appellee and his daughter, including those involving the appellee's support obligation under the divorce decree.

The trial court's reasoning, however, appears to be flawed in at least three

Page 424

respects. First, it conflicts with the plain language of the consent agreement, which was expressly "subject to the Court's approval." 4 By the terms of the agreement, disapproval of the adoption by the court would have automatically reinstated the appellee's support obligation. Second, it contradicts West Virginia Code § 48-4-5 (1980 [176 W.Va. 49] Replacement Vol.), 5 the applicable statute at the time of the court's order, which releases parents from all obligations with respect to the adopted child only "[u]pon the entry of [an] order of adoption." The rule is that, until an adoption becomes final, support payments are unaffected. For example, this Court held in the single Syllabus of Hopkins v. Yarbrough, 168W.Va. 480, 284 S.E.2d 907 (1981), that:

In the absence of fraud or other jurisdictionally cognizable and harmful circumstances 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.

Third, it confounds public policy, which mandates that the welfare of the child is of paramount importance in the resolution of support disputes. See Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357, 361 (1981). If the execution of consent was alone sufficient to release a responsible parent from the obligation to make support payments, unilateral consent could be fraudulently granted solely in order to avoid paying child support. It is therefore clear that the execution of consent to the adoption of a child by its custodial parent and the custodial parent's current spouse is alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments, and that the circuit court's order releasing the appellee from his support obligation on this ground must be reversed.

In addition to mere consent to an adoption, however, the form executed by both parties also contained a provision which released the appellee from his decretal child support obligation. As previously noted, however, this Court stated in Bailey v. Bailey, 127 W.Va. at 829, 35 S.E.2d at 83, that, "[T]he parties cannot by contract alter or change the terms of [a divorce] decree." This proposition is especially relevant with respect to decretal child support obligations. Courts in several jurisdictions have invalidated agreements between former spouses which released the noncustodial parent from a decretal obligation to make child support payments. See 100 A.L.R.3d 1129, at § 4(c) (1980), but see 100 A.L.R.3d 1129, at § 4(a).

In Armour v. Allen, 377 So.2d 798, 799-800 (Fla.Dist.Ct.App.1979), the court noted:

The law is clear that the parents may not contract away the rights of their child for support. Neither may the mother waive the child's right to support by acquiescing in the father's non-payment of support. Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.

See also Smith v. Smith, 125 Cal.App.2d 154, 164, 270 P.2d 613, 621 (1954) ("A parent may not by any act, conduct, or arrangement of whatever sort shift from his

Page 425

shoulders the legal responsibility and moral duty to support his minor child. It is an absolute, inalienable right enjoyed by the child which no form of contract between the parents, nor change of the domestic circumstances of either of them, may effect."); Weaver v. Garrett, 13 Md.App. 283, 287, 282 A.2d 509, 511 (1971) ("Child support is not a debt, but a duty.");...

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27 practice notes
  • In re Stephen Tyler R., No. 30654.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2003
    ...... child support, stand as `decretal judgments' against the party charged with the payments."); Syl. pt. 2, in part, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986) ("A decretal child support obligation may not be modified, suspended, or terminated by an...
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...to do with father, refused support when it was offered, and he, in reliance, married and incurred other obligations); Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420, 431 C. Equitable Deviation In Setting Past Child Support ¶44 South Dakota law clearly allows for retroactive child support in......
  • Griffis v. Griffis, No. 24628-24630.
    • United States
    • Supreme Court of West Virginia
    • May 21, 1998
    ...may not be modified, suspended, or terminated by an agreement between the parties to the divorce decree." Syl. pt. 2, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 Considering the above principles, the CSED argues that "[i]f a circuit court lacks the authority to retroactively modify a chi......
  • Hall v. Hall, No. 17-0452
    • United States
    • Supreme Court of West Virginia
    • May 11, 2018
    ...children, they are also rights which belong to children . "Child support is a right which belongs to the child. " Kimble v. Kimble , 176 W. Va. 45, 49, 341 S.E.2d 420, 424 (1986), quoting Armour v. Allen , 377 So.2d 798, 799-800 (Fla. Dist. Ct. App. 1979). Allowing a parent who voluntarily ......
  • Request a trial to view additional results
26 cases
  • In re Stephen Tyler R., No. 30654.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2003
    ...... child support, stand as `decretal judgments' against the party charged with the payments."); Syl. pt. 2, in part, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986) ("A decretal child support obligation may not be modified, suspended, or terminated by an...
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...to do with father, refused support when it was offered, and he, in reliance, married and incurred other obligations); Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420, 431 C. Equitable Deviation In Setting Past Child Support ¶44 South Dakota law clearly allows for retroactive child support in......
  • Griffis v. Griffis, No. 24628-24630.
    • United States
    • Supreme Court of West Virginia
    • May 21, 1998
    ...may not be modified, suspended, or terminated by an agreement between the parties to the divorce decree." Syl. pt. 2, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 Considering the above principles, the CSED argues that "[i]f a circuit court lacks the authority to retroactively modify a chi......
  • Hall v. Hall, No. 17-0452
    • United States
    • Supreme Court of West Virginia
    • May 11, 2018
    ...children, they are also rights which belong to children . "Child support is a right which belongs to the child. " Kimble v. Kimble , 176 W. Va. 45, 49, 341 S.E.2d 420, 424 (1986), quoting Armour v. Allen , 377 So.2d 798, 799-800 (Fla. Dist. Ct. App. 1979). Allowing a parent who voluntarily ......
  • Request a trial to view additional results

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