Robinson v. McKinney

• Decision Date: 24 June 1993
• Docket Number: No. 21549,21549
• Citation: 432 S.E.2d 543,189 W.Va. 459
• Parties: Michael L. ROBINSON, Plaintiff Below, Appellee v. Debra Catherine Robinson McKINNEY, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 543

432 S.E.2d 543

189 W.Va. 459

Michael L. ROBINSON, Plaintiff Below, Appellee v. Debra Catherine Robinson McKINNEY, Defendant Below, Appellant.

No. 21549.

Supreme Court of Appeals of

West Virginia.

Submitted May 5, 1993.

Decided June 24, 1993.

Syllabus by the Court

1. "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).

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).

3. "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).

4. "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).

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

6. 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.

7. 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.

8. "A nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby." Syl. pt. 3, State ex rel. Palumbo v. County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966).

J.C. Pomponio, Jr., Child Advocate Office, Lewisburg, for appellant.

Gordon T. Ikner, Gordon T. Ikner & Associates, L.C., Lewisburg, for appellee.

Justice McHUGH delivered the Opinion of the Court.

This case is before the Court upon the appeal of Debra Catherine Robinson McKinney from the August 12, 1992 order of the Circuit Court of Greenbrier County. The appellee is Michael L. Robinson. For reasons set forth below, we reverse the circuit court's order and remand the case for further proceedings consistent with this opinion.

I

The appellant, who is the mother, and the appellee, who is the father, were divorced by an order of the circuit court dated February 7, 1977. At that time custody of the minor child was granted to the mother, and the father was ordered to pay $100.00 per month in child support.

On December 2, 1977, the custody of the child was transferred from the mother to the father by a court order. The December 2, 1977 order was silent on the issue of child support payments. However, the parties agreed that the child support payments would be discontinued after the December 2, 1977 order was entered since the father had custody of the child.

Five years later, in September of 1982, the parties made another agreement in which the custody of the child would be returned to the mother. ¹ No court order was entered reflecting the transfer of custody of the child to the mother. The father states that he told the mother he would not pay child support if the child was returned to her. If the mother could not support the child on her own, then the child would be returned to the father. The mother agreed to the change in custody and acquiesced to the father's statement that he would not provide child support. The mother had custody of the child from September of 1982 until May of 1989, when the child turned 18 years old, with the exception of three months and some visitation in the summer.

The mother represents that the present action arose when she sought to enforce the original child support order of $100.00 per month for the time period during which she had custody of the child by garnishing the father's wages. The father had requested that a nunc pro tunc order be entered to reflect that the parties had agreed to terminate child support when the custody of the child was transferred to the father on December 2, 1977.

The Circuit Court of Greenbrier County held in its August 12, 1992 order that it could not enter a nunc pro tunc order since the December 2, 1977 order was an agreed to order which did not address the issue of child support; therefore, there was no order regarding child support intended by the circuit court. The circuit court also applied the doctrine of laches and held that the mother could not recover child support payments "due to the agreement of the parties and the passage of time." It is from this August 12, 1992 order that the mother seeks relief.

II

We first address the mother's contention that the circuit court erred by applying the doctrine of laches to bar unpaid child support. We agree with the mother that the ten-year statute of limitations set forth in W.Va.Code, 38-3-18 [1923] applies in this case and not the doctrine of laches. ²

In Korczyk v. Solonka, 130 W.Va. 211, 218, 42 S.E.2d 814, 819 (1947), this Court stated that "[W.Va.] Code, 38-3-1, 2, provide that decrees for the payment of money shall have the same effect as a judgment. Enforcement of such decretal judgment can be barred by the statute of limitations, but its enforcement may not be barred by laches." We have continued to follow the above statement set forth in Korczyk. See Hudson v. Peck, 183 W.Va. 300, 395 S.E.2d 544 (1990) and Zanke v. Zanke, 185 W.Va. 1, 404 S.E.2d 92 (1991).

However, in Zanke, supra at n. 5, we noted that the doctrine of laches was applied in Hartley v. Ungvari, 173 W.Va. 583, 318 S.E.2d 634 (1984). In Hartley the husband had not been personally served in the divorce action; however, the wife later attempted to collect past support expenses after the circuit court acquired personal jurisdiction over the husband. We held that the doctrine of laches barred the wife's suit to collect past support expenses since the wife had a number of opportunities in the past to obtain personal service and did not do so.

Hartley is distinguishable from the case before us because in Hartley the circuit court did not originally have jurisdiction to order support payments from the husband. Therefore, there was no enforceable original order in Hartley, and the wife failed to obtain personal jurisdiction on many occasions when she had the opportunity so that an enforceable order could be entered. Unlike Hartley, in the case before us there is an original enforceable order which awards child support. Furthermore, that order has never been modified.

In syllabus point 2 of Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987), we stated: "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."

In the case before us there is no evidence of fraud or of another judicially cognizable circumstance which would allow the circuit court to modify the child support award retroactively. Although there was an order entered which changed the custody of the child from the mother to the father after the original divorce order was entered, the order failed to reflect anything about child support. Therefore, the doctrine of laches cannot be applied to modify the child support award.

Furthermore, in syllabus point 1 of Goff v. Goff, supra, we stated that "[m]atured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as 'decretal judgments' against the party charged with the payments." Accordingly, we hold under Korczyk, supra, that 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. Therefore, in the case before us, the mother is not barred by the statute of limitations from collecting child support from September of 1982 until May of 1989, the time period during which the child resided with her, since the mother began the collection process in early 1992 by a Notice to Employer/Source of Income dated February 18, 1992 and by a motion to establish arrearages dated March 12, 1992.

III

Next, we address the mother's contention that the circuit court erred by finding that the mother could not recover child support due to the agreement of the parties and the passage of time. We will also address the father's contention that the mother is equitably estopped from seeking enforcement of the initial order of child support.

In general, courts have closely guarded children's rights since they are often voiceless. In particular, during and after the parents' divorce, courts have sought to ensure that the child receives the support he or she is entitled to receive. In fact, this Court has stated that "[t]he 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). Furthermore, we have stated that "[a] decretal child support obligation may not be...