Lauderback v. Wadsworth

• Decision Date: 20 March 1992
• Docket Number: No. 20447,20447
• Citation: 187 W.Va. 104,416 S.E.2d 62
• Parties: Mary J. Wadsworth LAUDERBACK, Plaintiff Below, Appellant, v. Dale L. WADSWORTH, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

Page 62

416 S.E.2d 62

187 W.Va. 104

Mary J. Wadsworth LAUDERBACK, Plaintiff Below, Appellant, v. Dale L. WADSWORTH, Defendant Below, Appellee.

No. 20447.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1992.

Decided March 20, 1992.

Syllabus by the Court

1. "A decretal child support obligation may not be modified, suspended, or terminated by an agreement between the parties to the divorce decree." Syllabus Point 2, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986).

2. "Matured installments provided for in a decree, which orders the payment of monthly sums for alimony and child support, stand as 'decretal judgment' against the party charged with the payments." Syllabus Point 1, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

3. "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 circumstances in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments." Syllabus Point 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

4. "Mature alimony and child support installments are judgments for money which accrue statutory interest from the date the payments are due." Syllabus Point 5, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

Mark E. Gaydos, William Frame, Wilson, Frame and Metheney, Morgantown, for appellant.

Susan L. Riffle, Brent E. Beveridge, Fairmont, for appellee.

PER CURIAM:

The Circuit Court of Marion County certified the following questions on child support arrearage to this Court:

1. Is the plaintiff estopped from seeking enforcement of an accrued arrearage in child support as a result of a post-divorce agreement accepting the sum of $25,000 for her interest in the parties' jointly owned real estate and for all past and future child support?

2. Is the plaintiff in such a case entitled to the entire amount of arrearages in one lump sum when she sits on her rights for ten years before enforcing collection of the arrearages?

3. Is the plaintiff entitled to interest on the arrearages?

The circuit court answered question 1 negatively and questions 2 and 3 affirmatively. After careful review of the record, we find that the circuit court's answers for questions 1 and 3 were correct. With respect to question 2, we find that although the plaintiff is not precluded from a lump sum award, given the equities, the circuit court should conduct a hearing to determine the defendant's ability to pay and to order the appropriate payment.

On April 24, 1978, Dale L. Wadsworth and Mary J. Wadsworth (Lauderback) were divorced and Mrs. Lauderback was awarded custody of the parties' four children, then ages 14, 13, 9, and 2, and Mr. Wadsworth was ordered to pay $400 per month in child support. However, Mr. Wadsworth paid no child support and in July 1979, the circuit court found the child support arrearage to be $7,500 and temporarily reduced payments to $300 per month. Despite the court order, Mr. Wadsworth paid no child support. On August 17, 1981, Mr. Wadsworth and Mrs. Lauderback signed an agreement in which Mrs. Lauderback, in exchange for a $25,000 payment from Mr. Wadsworth, (1) released her interest in some jointly owned real estate, and (2) released Mr. Wadsworth from all child support, past, present and future. Mrs. Lauderback maintains that Mr. Wadsworth also promised to help with extraordinary expenses such as school clothes and Christmas. ¹

After the 1981 agreement, Mrs. Lauderback requested help from Mr. Wadsworth twice, once for school clothes and the second time for utility bills. Mr. Wadsworth refused both times. ² After Mr. Wadsworth refused to buy school clothes, Mrs. Lauderback called the lawyer who drafted the 1981 agreement and was told she had waived all assistance. Because of the 1981 agreement, Mrs. Lauderback did not seek enforcement of the child support order.

However, when in 1990 Mrs. Lauderback sought money to pay her utility bills from the Department of Health and Human Services, she was referred to the Child Advocate Office. With help from the Child Advocate Office, Mrs. Lauderback sought to enforce the child support order by requesting automatic wage withholding.

The case was referred to a family law master who determined that the 1981 agreement was invalid in so far as it waived child support. The family law master determined that the total past due child support was $45,400. The family law master found that of the $25,000 received by Mrs. Lauderback as a result of the 1981 agreement, $7,500 was a property settlement and $17,500 was for child support. ³ Deducting $17,500, the child support paid in 1981, from $45,400, the past due child support, the family law master found that Mr. Wadsworth owed $27,900 in child support. Using the Child Support Guidelines, the family law master also recommended Mr. Wadsworth pay $300 per month in child support for the one unemancipated child. ⁴

Mr. Wadsworth appealed the decision of the family law master to the Circuit Court of Marion County who, upon his own motion, certified three questions concerning child support arrearage to this Court. We find that the circuit court correctly determined that 1981 agreement did not estop Mrs. Lauderback from seeking unpaid child support and that Mrs. Lauderback was entitled to interest on the arrearage. We also find that although Mrs. Lauderback is not precluded from receiving a lump sum, given the equities, the circuit court should conduct a hearing to determine Mr. Wadsworth's ability to pay and to order the appropriate payment either as a lump sum or from wage withholding or a combination.

I

The first question certified to this Court concerns whether Mrs. Lauderback is estopped from seeking unpaid child support by the 1981 agreement in which she waived all past, present and future child support from Mr. Wadsworth.

In Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986), we discussed a similar situation wherein the father, in exchange for termination of his child support obligations, consented to the adoption of his child. Thereafter Mr. Kimble stopped paying child support and about one year later, Mrs. Kimble petitioned for delinquent child support payments (the adoption had not occurred) and requested an increase in child support. In Syllabus Point 1, Kimble, id., we held 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.

In accord Stevens v. Stevens, 186 W.Va. 259, 412 S.E.2d 257 (1991). Our holding requiring Mr. Kimble to pay child support was based on the fact that "[T]he parties cannot by contract alter or change the terms of [a divorce] decree." Kimble, id. 176 W.Va. at 49, 341 S.E.2d at 424 (quoting Bailey v. Bailey, 127 W.Va. 826, 829, 35 S.E.2d 81, 83 (1945)). In Syllabus Point 2, Kimble, supra, we concluded:

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

"The welfare and interest of minor children must be protected by the courts. They are not independently represented in connection with any property settlement agreement and they are not parties to such an agreement." Stewart v. Stewart, 177 W.Va. 253, 351 S.E.2d 439 (1986) (Stewart I ) (quoting State ex rel. Trembly v. Whiston, 159 W.Va. 298, 302, 220 S.E.2d 690, 693.) See also, Stewart v. Stewart, 183 W.Va. 307, 310, 395 S.E.2d 551, 554 (1990) (affirming our holding in Stewart I, that Mrs. Stewart was entitled to child support and that "no consideration" be given to the real estate equity); Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 n. 2 (1987) (holding that "only a court may modify a decree ordering the payment of support").

We also note that the circuit court's authority to modify child support is prospective only. Syllabus Point 2, in part, Goff, id.; Farley v. Farley, 186 W.Va. 263, 266, 412 S.E.2d 261, 264 (1991); Syllabus Point 3, Nancy Darlene M. v. James Lee M., Jr., 184 W.Va. 447, 400 S.E.2d 882 (1990).

In Syllabus Point 3, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991), we said:

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.

In the present case, we find that the 1981 agreement between Mr. Wadsworth and Mrs. Lauderback, in which Mrs. Lauderback waived her interest in jointly titled real estate and all past and future child support payments by Mr. Wadsworth, did not modify, suspend or terminate Mr. Wadsworth's obligation to pay child support. ⁵ We also note that the circuit court's authority to modify a child support award is prospective only.

Based on our holding in Kimble, we agree with the negative answer to the first certified question given by the circuit court that "the plaintiff [Mrs. Lauderback] is not estopped from enforcing an accrued arrearage excepting the portion of the $25,000 payment which was to be credited for child support."

II

The second certified question concerns whether Mrs. Lauderback is entitled to a lump sum payment of the entire amount of child support arrearage. In Syllabus Point 1, Goff, supra, we said:

Matured installments provided for in a decree, which orders the payment of monthly sums for alimony and child support, stand as 'decretal judgment' against the party charged with the payments.

See Syllabus Point 1, Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991); Sauls v. Howell, 172 W.Va. 528, 309 S.E.2d 26 (1983); Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947); Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889 (1940).

In the present case, Mr. Wadsworth argues that Mrs. Lauderback is not entitled to the total arrearage in one lump sum because she did not pursue her...