Lang v. Iams, 23551

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM; MAYNARD; MAYNARD
• Citation: 491 S.E.2d 24,201 W.Va. 24
• Parties: David B. LANG, Plaintiff Below, Appellee, v. Catherine L. IAMS, Formerly Catherine L. Lang, Defendant Below, Appellant. West Virginia
• Docket Number: No. 23551,23551
• Decision Date: 08 July 1997

Page 24

491 S.E.2d 24 201 W.Va. 24 David B. LANG, Plaintiff Below, Appellee,
v.
Catherine L. IAMS, Formerly Catherine L. Lang, Defendant
Below, Appellant. No. 23551. Supreme Court of Appeals of West Virginia. Submitted Jan. 29, 1997.
Decided July 8, 1997.

Page 25

[201 W.Va. 25] Syllabus by the Court

1. " 'This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We

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[201 W.Va. 26] review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, State ex rel. Martin v. Spry, 196 W.Va. 508, 474 S.E.2d 175 (1996).

2. " 'The duty of a parent to support a child is a basic duty owed by the parent to the child, and a parent cannot waive or contract away the child's right to support.' Syl. Pt. 3, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991)." Syl. Pt. 2, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

3. "In order to ensure that the best interests of the child are considered, ordinarily an agreement to modify or terminate a child support obligation is effective only upon entry of a court order, authorized by W.Va. code, 48-2-15(3) [1991], which modifies or terminates the child support obligation." Syl. Pt. 7, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

4. "A decretal child support obligation 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 (1986).

5. "A circuit court lacks the power to alter or cancel accrued installments for child support." Syl. Pt. 2, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980).

6. "The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments." Syl. Pt. 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

7. "The ten-year statute of limitations set forth in W.Va. code, 38-3-18 [1923] and not the doctrine of laches applies when enforcing a decretal judgment which orders the payment of monthly sums for alimony or child support." Syl. Pt. 6, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993).

W.T. Weber, Jr., Weber & Weber, Weston, for Appellee.

J. Burton Hunter III, Hunter, Law & Levine, Buckhannon, for Appellant.

PER CURIAM:

This is an appeal by Catherine L. Iams (hereinafter "Appellant" or "mother") from a December 11, 1995, order of the Circuit Court of Upshur County awarding $14,400 in child support arrearage, rather than the $25,000 arrearage, plus interest, sought by the Appellant. We reverse the lower court's determination and remand for entry of an order awarding the Appellant the total amount of arrearage, plus 10% interest.

I.

The Appellant and Appellee David B. Lang (hereinafter "Appellee" or "father") were divorced on May 21, 1984. Pursuant to the divorce order, the Appellee was required to pay child support of $600 monthly for the parties' two children, Brieanne, presently age twelve, and Joshua, presently age seventeen. That order of child support has never been modified.

In early 1990, following the loss of the Appellee's employment, the parties allegedly agreed to reduce child support payments from $600 to $300 per month. The Appellant testified that she and the Appellee entered into an agreement, without court order, to postpone the required payments due to his lack of employment. The Appellant further explained that the Appellee had told her that he had lost his job and could not afford to pay the $600 per month. She specifically stated that she never agreed to waive the child support payments, only to postpone them.

The Appellee, however, contends that the reduction from $600 to $300 per month was not temporary in nature and that, in exchange for the reduction, the Appellant and her husband were permitted to claim the children as an exemption for income tax purposes. ¹

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¹ [201 W.Va. 27] A March 1990 letter from the Appellant to the Appellee indicates the Appellant's dissatisfaction with the reduction and raises the issue of unfairness to the children due to the Appellee's failure to pay the amount of child support he should be paying.

The Appellee continued to pay the $300 monthly child support from 1990 through 1995, and on October 5, 1995, the lower court entertained the Appellant's petition to hold the Appellee in contempt for failure to pay the required $600 monthly child support. The Appellant sought child support arrearage of $18,450.00, medical expenses of $2,475.90, and $4,727.40 interest, for a total of $25,653.30. During the hearing, the Appellant sought to establish that her acquiescence to the reduction was temporary in nature, based upon the Appellee's temporary unemployment. ² The Appellee maintained that the reduction was permanent and was premised upon the Appellant's receipt of the privilege of claiming the children as exemptions. The Appellee also argued that the Appellant was equitably estopped from raising the issue due to the passage of time.

By order dated December 11, 1995, the lower court resolved the arrearage issue by awarding $14,400 to the Appellant for child support arrearage, to be paid in $600 monthly installments, without interest, from October 1995 through October 1997. The lower court arrived at the $14,400 award by giving the Appellee credit for the tax reductions received by the Appellant and her husband. From October 1, 1997, when the oldest child will turn eighteen, to October 1, 2001, the Appellee was ordered to pay $300 monthly for Brieanne plus $300 monthly to cover the arrearage of $14,400 over the specified four years. The lower court specified that no interest would be due as long as the Appellee makes timely payments. Thus, the lower court acknowledged the $600 monthly original award, and ordered payments of that amount to commence until the oldest child reaches eighteen. However, under the scheme delineated by the lower court, only $14,400 of the arrearage will be repaid by the Appellee, and no interest will be charged upon that amount. ³

II.

The Appellant raises three particular issues for resolution by this Court: the lower court's waiver of a portion of the $25,000 arrearage, its failure to award post-judgment interest, and its credit to the Appellee of the amounts received by the Appellant and her husband by claiming the children as exemptions.

" 'This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469...