Runner v. Howell, 25342.

• Decision Date: 09 July 1999
• Docket Number: No. 25342.,25342.
• Citation: 205 W.Va. 359,518 S.E.2d 363
• Court: West Virginia Supreme Court
• Parties: Elaine M. RUNNER, Plaintiff below, Appellee, v. Eric Mark HOWELL, Defendant below, Appellee, and The State of West Virginia Department of Health & Human Resources, Child Support Enforcement Division, Intervenor below, Appellant.

518 S.E.2d 363

205 W.Va. 359

Elaine M. RUNNER, Plaintiff below, Appellee, v. Eric Mark HOWELL, Defendant below, Appellee, and The State of West Virginia Department of Health & Human Resources, Child Support Enforcement Division, Intervenor below, Appellant.

No. 25342.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1999.

Decided July 9, 1999.

Daniel J. Calvert, Esq., Bureau for Child Support Enforcement, Weston, West Virginia, Attorney for Appellant.

Scott Curnutte, Esq., Elkins, West Virginia, Attorney for Appellee Runner.

Bridgette R. Wilson, Esq., Busch & Talbott, L.C., Elkins, West Virginia, Guardian Ad Litem.

David H. Wilmoth, Esq., Elkins, West Virginia, Attorney for Appellee Howell.

PER CURIAM:

This case is before us on appeal of a final order of the Circuit Court of Randolph County, entered March 9, 1998. The appellant, the Department of Health and Human Resources Child Support Enforcement Division ("CSED"), seeks reversal of the circuit court's order that: (1) terminated appellee Eric Howell's ("Howell") parental rights of a child he fathered with appellee Elaine Runner ("Runner"), and (2) waived all past, present and future child support owed Howell on behalf of the child. Upon consideration of the record and briefs, we reverse the circuit court's March 9, 1998 order and remand the case for further proceedings.

I.

On August 11, 1986, Runner and Howell were married in Randolph County, West Virginia. They were the parents of one child who was born on July 13, 1987. Runner and Howell were divorced on September 15, 1988 by the Circuit Court of Randolph County. Under the provisions of the divorce decree, Runner was awarded custody of the minor child and Howell was ordered to pay child support in the amount of $150.00 per month commencing on September 15, 1988.

Howell failed to pay the required child support and accumulated a substantial child support arrearage.¹ Runner made an application to the Child Advocate Office² to collect the unpaid child support. Several enforcement efforts were unsuccessful.

On November 15, 1994, Runner and Howell entered into an agreement terminating both Howell's parental rights to the minor child and his obligation to pay child support. The agreement terminated all past, present and future child support due and owing from Howell to Runner. The agreement was presented to the circuit court, and was approved and incorporated into an order dated September 22, 1995.

A copy of the September 22, 1995 order was forwarded to the CSED. The CSED filed a petition to "Intervene, Vacate Order, and Reinstate Child Support," along with a motion for a guardian ad litem to be appointed to represent the interests of the minor child. A hearing was held on July 1, 1996 with the circuit court granting the CSED's petition to intervene by order dated July 12, 1996; the court also appointed a guardian ad litem. The parties submitted briefs to the court, and by order dated October 10, 1996, the court vacated its September 22, 1995 order, thereby requiring Howell to resume child support payments. The court also left open the right for the parties to "schedule further hearings in this matter with the court."

On February 26, 1997, a status conference was conducted to discuss inter alia visitations of the child by Howell. The circuit court appointed Dr. Alan LaVoie, a psychologist, to perform an evaluation of the minor child and to advise the court of the child's best interest concerning visitation with the child's father, Howell.³ On April 1, 1997, a report was presented to the court by Dr. LaVoie. The report indicated that at that time it would not be in the child's best interest to have visitation with her father, Howell. The report also indicated that if in the future the minor child did decide to have contact with her father, supervised visitation should be arranged.

At a subsequent status conference on February 26, 1998, Runner, Howell and the guardian ad litem presented to the circuit court an agreed order which terminated the parental rights of Howell and terminated Howell's obligation to pay past, present and future child support. This agreed order provided for substantially the same arrangements as did the 1994 agreement between Howell and Runner. The court entered the agreed order on March 9, 1998. This appeal of the circuit court's order by the CSED followed.

II.

In considering the appeal of a circuit court's order, this Court employs a two-prong deferential standard:

When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.

Syllabus Point 1, McCormick v. Allstate Insurance Company, 197 W.Va. 415, 475 S.E.2d 507 (1996).

The obligation to provide child support is based on the moral and legal duty of a parent to support one's child from birth. We have recognized that "child support payments are exclusively for the benefit and economic best interest of the child." Carter v. Carter, 198 W.Va. 171, 176, 479 S.E.2d 681, 686 (1996) (citations omitted). "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). We also have held that " `child support payments vest as they accrue,' and matured installments thereof stand as decretal judgments against the party owing such support payments." Carter, supra, 198 W.Va. at 175, 479 S.E.2d at 685 (citations omitted).

We have recognized that "courts have closely guarded children's rights since they are often voiceless." Robinson v. McKinney, 189 W.Va. 459, 463, 432 S.E.2d 543, 547 (1993). W.Va.Code, 48A-5-2(a) [1998] provides, in pertinent part:

(a) The total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a court of competent jurisdiction ... shall stand, by operation of law, as a decretal judgment against the obligor owing such support.... A child support order shall not be retroactively modified so as to cancel or alter accrued installments of support.

A circuit court's power to modify accrued child support is limited to those instances of fraud or other judicially cognizable circumstance in procuring the original support award. As we have 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.

Syllabus Point 2, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). See also Syllabus Point 2, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980) ("A circuit court lacks the power to alter or cancel accrued installments for child support.").

The prohibition against canceling accrued child support also extends to those circumstances where the parties have agreed to the cancellation. "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). Howell relies on Kimble, supra, arguing that equitable estoppel should apply in this matter. Howell contends that he has relied upon his agreement with Runner to terminate his child support obligation to his detriment and should not now be made to pay the accrued child support.

In Kimble we did recognize that there may be circumstances in which the custodial parent would be estopped from seeking to enforce a decretal obligation. We stated that when there has been detrimental reliance by the noncustodial parent and "[w]here 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[.]" Syllabus Point 3, in part, Kimble, supra.

In Kimble the noncustodial parent consented to the adoption of his child in exchange for the termination of his child support obligations. Approximately 1 year after the agreement, the custodial parent petitioned the court for delinquent...