Rebecca v. Michael

• Decision Date: 01 July 2003
• Docket Number: No. 30411.,30411.
• Citation: 584 S.E.2d 600,213 W.Va. 744
• Parties: REBECCA Lynn C., Plaintiff Below, Appellant, v. MICHAEL Joseph B., Defendant Below, Appellee.
• Court: West Virginia Supreme Court

584 S.E.2d 600

213 W.Va. 744

REBECCA Lynn C., Plaintiff Below, Appellant, v. MICHAEL Joseph B., Defendant Below, Appellee.

No. 30411.

Supreme Court of Appeals of West Virginia.

Submitted on Rehearing March 11, 2003.

Decided July 1, 2003.

Dissenting Opinion of Justice Davis July 9, 2003.

Rebecca Lynn C., Wheeling, Pro se.

Kimberly D. Bentley, Esq., Assistant Attorney General, Charleston, for Amicus Curiae WV Bureau for Child Support Enforcement.

Christopher P. Riley, Esq., Bailey, Riley, Buch & Harman, Wheeling, for Appellee.

PER CURIAM.

In this case we review a ruling by the Circuit Court of Ohio County that dismissed a mother's petition seeking to modify an order that had been entered in a paternity action. The order that the mother sought to modify terminated the duty of a biological father to pay child support, based on a lump-sum payment to the child's mother.¹ We reverse the circuit court's dismissal of the petition and remand for further proceedings.

I.

This case involves a child ("B.L.C.") who was born in May of 1988. The child's mother ("R.L.C.") is the appellant in this case, and the child's father ("M.J.B.") is the appellee; we use initials for privacy reasons.

The child's father and mother were never married and did not live together, and the father denied paternity after the child was born. The mother instituted paternity proceedings in circuit court. A paternity test showed that the appellant M.J.B. was the child's father, and the circuit court so found in the paternity proceeding, setting child support at $300.00 per month. Visitation was granted to the father, and the father was required to be responsible for reasonable health care insurance coverage for the child. The parties were ordered to share any uncovered medical expenses. On June 7, 1990, the court entered judgment for the mother in the amount of $7,200.00 for child support from June 1, 1988, to May 31, 1990, and for birth expenses of $1,541.38, for a total judgment of $8,741.38.²

Thereafter, following discussions between the father and the mother, the father prepared a "letter agreement" proposal whereby the father would pay a total payment of $35,000.00 to the mother, this sum to include the past-due support earlier ordered. In exchange, the mother would waive any claim to past or future child support of any sort. The money was payable as follows: $15,000.00 on or before September 1, 1990; $6,666.68 on or before March 1, 1991; $6,666.68 on or before September 1, 1991; and $6,666.68 on or before March 1, 1992. The agreement also provided that the father would agree to voluntarily terminate all of his parental rights and to execute any necessary consent to an adoption of the child. See note 6 infra.

The mother agreed to the proposal, and on November 14, 1990, a hearing before the Circuit Court of Ohio County was held for entry of an agreed order in the paternity proceeding. The father was represented by counsel, but apparently did not attend the hearing; the mother was not present at the hearing, nor was she represented by counsel. The child was not present nor represented by counsel or by a guardian ad litem. The child advocate's office did not appear, nor did it receive notice. The court entered an order incorporating the terms that were set forth in the proposed agreement. Payments pursuant to the agreement were apparently made on schedule, and apparently the father did not have any contact with the child thereafter.

Subsequently, in October of 1994, the child was diagnosed with Type I juvenile brittle diabetes, a condition that requires monthly medical treatment at an apparent current approximate monthly cost of $250.00 over and above the mother's health insurance payments. In January of 1996, the mother, apparently having been advised that the lump-sum agreement that she had entered into was legally unsound, filed (in the original paternity proceeding) a "Petition for Order to Set Aside Provisions in Settlement Agreement Regarding Waiver of Child Support Obligation of [M.J.B.] and for Order to Institute Current Child Support." The appellee father filed a response, requesting that the petition be dismissed.

On July 12, 1999, a hearing was held on the mother's petition before a family law master.³ The master issued a Recommended Order on January 4, 2001, denying the mother's petition and granting the father's motion to dismiss. The mother sought review by the circuit court, which affirmed the recommended decision on July 2, 2001. This is the ruling that we review in the instant case. We set forth other pertinent facts in our discussion.

II.

Although the lower court made certain findings of fact and conclusions of law in connection with its ruling, we do not find in the record before this Court either the transcript of any hearings or copies of any written stipulations upon which those findings and conclusions are based. This Court is not obliged to give weight or deference to findings and conclusions of a lower court when we are unable to find support for those findings and conclusions in the record. Cf. Ruble v. Office of Secretary of State, 192 W.Va. 134, 138, 451 S.E.2d 435, 439 (1994)

(in reviewing a contested case, a court is required to examine the record of the proceeding below to ascertain whether there is evidence to support the lower tribunal's decision). In any event, our decision in the instant case turns essentially on matters of law, which this Court determines de novo.

The appellee father contends that because the lower court ratified the lump-sum child support payment and the "voluntary termination" of his parental rights in the paternity proceeding—and stated that the same would be in the best interests of the child—that as a consequence, the appellant does not and cannot have any further duty to provide support for his child.⁴ The appellee also contends that because the child's mother "bargained for" the lump-sum agreement, she (and through her assent, the parties' child) should be "held to the terms of the bargain." However, on this latter point, our cases are clear that even the best-intentioned parents cannot "bargain away" their children's right to ongoing support from their parent. "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." Syllabus Point 3, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991). See also Runner v. Howell, 205 W.Va. 359, 518 S.E.2d 363 (1999)

.⁵

As to the lower court's ratification of the parties' agreement, a review of the entire record, and especially the absence in any of the lower court proceedings of either a guardian ad litem for the child or the child advocate office, leads to the inescapable conclusion that the child's independent interests were not properly represented or protected. In this regard, we note that we stated in Michael K.T. v. Tina L.T., 182 W.Va. 399, 406, 387 S.E.2d 866, 873 (1989)—a case that was decided before the 1990 order that ratified the parties' lump-sum agreement—that the involvement of a guardian ad litem in a paternity proceeding was "... necessary to protect the child's interests ...." (emphasis added).⁶

For the foregoing reasons, we conclude that the circuit court erred in refusing to set aside the 1990 limitation of the appellee's child support obligation to $35,000.00. We therefore reverse the lower court's order and remand the case for proceedings consistent with the following principles, which we adopt and prescribe in the belief that they will enable this contentious matter to come to a more rapid conclusion:

1. The $35,000.00 paid by the appellee is to be applied to child support at $300.00 per month since the child's birth. Taking into account the birth expenses, inflation, and the child's added medical costs as roughly balancing and compensating for reasonable interest, we calculate that this sum covers a period of ten years from the child's birth, or until May of 1998, and the lower court should use this calculation unless it can determine from readily available evidence obtained without extensive discovery, etc., that this calculation is grossly erroneous and inequitable, in which case it may be adjusted by the court;

2. The lower court on remand should appoint a guardian ad litem for the child. The court should then ascertain and enter judgment for the appellant for past-due child support (including half of the child's uninsured medical expenses) from the child's tenth birthday in May of 1998 to the present, according to the ordinary principles of child support calculation—based upon the parties' incomes, expenses, etc. during that period. No interest should be added. Hopefully this calculation can be made without extensive litigation—and we recognize that due to the passage of time, the lower court may have to do some approximating to achieve a fair result. A reasonable payment plan should be ordered, if the appellee cannot afford to pay any sum of back support that is due;

3. The lower court should then calculate a present/future child support obligation of the appellee in the same fashion as in other child support cases, including dealing with the issue of medical insurance, if it is available; and

4. If other issues arise regarding the child and the parties, they are in the first instance committed to the sound discretion of the lower court, guided by the principles enunciated in this opinion. We express no opinion on possible issues like custody, visitation, inheritance, etc., as they have not been raised by the parties. We do, however, conclude that the circuit court has the authority to enter any appropriate order necessary to permit or facilitate the child's coverage under the appellee's health insurance.

III.

The order of the circuit court dismissing the mother's petition is reversed, and this case is remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

Just...