Scott v. Wagoner

Citation400 S.E.2d 556,184 W.Va. 312
Decision Date12 December 1990
Docket NumberNo. 19527,19527
CourtSupreme Court of West Virginia
Parties, 59 USLW 2495, 14 A.L.R.5th 1031 Donna Jo SCOTT, Individually, and as Next Friend for Donald Benjamin Wagoner and Luke Harmon Wagoner v. William L. WAGONER, Executor of the Estate of Timothy Allan Wagoner; Lou Ann Wagoner; and Lloyd Winters.

Syllabus by the Court

In a case involving child support, if compelling equitable considerations are present, under the provisions of W.Va.Code, 48-2-15(e), as amended, a court has the authority to enforce the child support obligation as a lien against the deceased obligor's estate. To the extent that Robinson v. Robinson, 131 W.Va. 160, 50 S.E.2d 455 (1948), is inconsistent herewith, it is overruled.

Roy David Arrington, Marlinton, for Donna Jo Scott.

David Webb, Staggers & Webb, Keyser, for Lou Ann Wagoner.

McHUGH, Justice:

This case is before the Court upon the appeal of Donna Jo Scott, from the final order of the Circuit Court of Mineral County. The appellees are William L. Wagoner, executor of the estate of Timothy Allan Wagoner, Lou Ann Wagoner, and Lloyd Winters.

The appellant and Timothy Wagoner were married on September 4, 1977. Two children were born of the marriage, both minors.

The appellant and Timothy Wagoner were divorced on June 17, 1985. The appellant was awarded custody of the two children, and Timothy Wagoner was ordered to pay child support in the amount of $200 per month per child.

In November, 1985, Timothy Wagoner married Lou Ann Wagoner, an appellee herein. Lou Ann Wagoner began having an adulterous affair with Lloyd Wayne Winters, another appellee herein. The adulterous meetings took place in the home of Timothy and Lou Ann Wagoner.

There are allegations, but no evidence in the record before this Court, that Timothy Wagoner knew of this adulterous relationship and that there had been at least one confrontation between Timothy Wagoner and Lloyd Wayne Winters prior to their final confrontation on March 22, 1988.

On that date, March 22, 1988, Timothy Wagoner came home to find Lloyd Wayne Winters with his wife, Lou Ann Wagoner. A struggle apparently ensued and Lloyd Wayne Winters shot and killed Timothy Wagoner. It is alleged that Winters shot Wagoner four times.

There are also allegations, but again, no testimony on the record before this Court, that on several occasions, Winters brought a gun to the Wagoners' home during the adulterous affair.

Winters pleaded guilty to voluntary manslaughter.

The appellant brought suit in the Circuit Court of Mineral County on behalf of her two children against the estate of Timothy Wagoner, seeking to require the estate to continue paying the child support awarded to the children. The circuit court dismissed the complaint for failure to state a claim upon which relief can be granted. See W.Va.R.C.P. 12(b)(6).

In this appeal, the appellant contends that equity requires that the estate of Timothy Wagoner continue to make payments to support her children.

In support of this contention, the appellant relies upon this Court's decision in In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978). The issue which we addressed in Hereford was whether an alimony decree may survive the death of a former spouse and become a charge against the former spouse's estate. In syllabus point 2 of Hereford, we held:

While as a general rule alimony does not survive the death of the payor former spouse, where there are compelling equitable considerations which militate in favor of making alimony a charge against a deceased former spouse's estate, the circuit court has the power to make such an award pursuant to the same authority which entitles a court of equity to modify any alimony award to reflect changed circumstances.

We also pointed out in Hereford that a trial court could charge alimony payments against a deceased former spouse's estate if the property settlement agreements providing for alimony payments contained language such as "so long as [the former spouse] is living and has not remarried," and the divorce decree requiring such payments contained language such as "so long as [the former spouse] lives or until [the former spouse] remarries[.]" Id., syl. pt. 1. We also pointed out factors that should be present where a trial court could require such continued alimony payments: (1) where the present value of alimony payments is not speculative; (2) where extenuating and equitable considerations militate in favor of continued alimony payments; and (3) where no undue hardship would be created upon other dependents. Id.

The appellant contends that these factors are present in the case now before us with respect to child support payments. Because the divorce decree provides for child support payments in the amount of $200 per month per child, the appellant points out that the present value is not speculative.

The appellant also maintains that, in this case, equity militates in favor of the financial protection of Timothy Wagoner's children. Specifically, the appellant argues that Lou Ann Wagoner created, by her adulterous affair, the situation leading to the fatal confrontation between Lloyd Wayne Winters and Timothy Wagoner. Moreover, Lou Ann Wagoner will receive the entire proceeds of Timothy Wagoner's estate. 1

The appellant asserts that one of her two children suffers from extraordinary medical problems incurring expenses which could be met by child support payments. It is also asserted by the appellant that her children would have eventually benefitted from Timothy Wagoner's pension benefits but now cannot because such benefits did not vest due to his untimely death.

Finally, the appellant contends that no undue hardship would be created upon any other dependents involved in this case. 2

The appellee, on the other hand, relies upon this Court's holding in Robinson v. Robinson, 131 W.Va. 160, 50 S.E.2d 455 (1948). The syllabus to Robinson held:

Where, in a suit for divorce prosecuted by the wife, there is a decree in her favor for the divorce sought, and for the custody of children; and also, as a part of the same decree, the defendant husband is required to pay to the wife a fixed monthly sum for the support of said children, until the further order of the court; such decree is one for the payment of money, under Code, 38-3-6, and becomes a lien on the real estate of the husband, which may be enforced as the required payments accrue or mature, during the lifetime of the husband; but may not accrue or mature, or be enforced against the estate of the husband, real or personal, after his death.

(emphasis supplied) 3

Judge Haymond sharply dissented from the Court's decision in Robinson. In his dissenting opinion, Judge Haymond reasoned that the trial court's child support order is a lien against the deceased spouse's estate by the force of W.Va.Code, 38-3-1, -2, and -6 [1931]. 4 "The judgment is a lien by force of the statute. It does not cease to be a lien because of the death of either party and it may be enforced in equity without revival." 131 W.Va. at 174, 50 S.E.2d at 463. Judge Haymond went on to compare a child support order to that of a judgment sounding in tort:

I think it would not be seriously contended in this, or any other, jurisdiction that a judgment based on a claim for personal injuries, which claim before judgment at common law ends with the death of the tort feasor, would lose its force and effect and could not be enforced or collected with its accruing interest after the death of the defendant. A judgment against a tort feasor rendered by a court of competent jurisdiction, by universal recognition, survives his death and continues in full force and effect as a judgment and as a charge against his estate until it is satisfied or discharged in some legal manner. I can see no distinction, in law or logic, between a judgment based upon a claim in tort in its effect upon the estate of the defendant tort feasor after his death and the decree of the court of common pleas which the majority concedes is a judgment and a lien upon the real estate of the debtor, which admittedly has not been satisfied or discharged in any legal manner, and which, as to installments to accrue after his death, by the decision of the majority, never will or can be so satisfied or discharged by payment out of his estate.

Id., 131 W.Va. at 175 -76, 50 S.E.2d at 463-64. 5

Generally speaking, as this Court's Robinson decision reflects, "a child-support order terminates automatically on the death of the parent obligated for support, insofar as future payments are concerned, unless the decree provides that payments thereunder are not to be affected by such parent's death." 24 Am.Jur.2d, Divorce and Separation § 1048, at 1038 (1983). See generally annotation, Death of Parent as Affecting Decree for Support of Child, 18 A.L.R.2d 1126 (1951).

It has been held by some courts, however, that if the decree specifies that child support payments are to continue during minority of the child(ren), then such an obligation will survive the death of the parent making child support payments. Myers v. Harrington, 70 Cal.App. 680, 684-85, 234 P. 412, 414 (1925); Garber v. Robitshek, 226 Minn. 398, 402-04, 33 N.W.2d 30, 33-34 (1948); Hornung v. Estate of Lagerquist, 155 Mont. 412, 418-19, 473 P.2d 541, 544-45 (1970); Stone v. Bayley, 75 Wash. 184, 134 P. 820 (1913); cf. Newhall v. Newhall, 227 Cal.App.2d 800, 806-07, 39 Cal.Rptr. 144, 148-49 (1964) (obligation to make child support payments upheld where agreement sets forth obligation for at least ten years, but father/payor dies after six years).

It has also been held that where the decree specifies that child support payments are to continue until further order of the court, then, again, such obligation will survive the death of the obligor. Edelman v. Edelman, 65 Wyo. 271, 285, 291-92, 199 P.2d 840, 845, 847-49 (1948), reh'g denied, 65 Wyo. 295, 203 P.2d 952 (1...

To continue reading

Request your trial
8 cases
  • Carter v. Carter
    • United States
    • West Virginia Supreme Court
    • 18 November 1996
    ... ... 2, Lauderback v. Wadsworth, 187 W.Va. 104, 416 S.E.2d 62 (1992); syl. pt. 1, Hudson v. Peck, 183 W.Va. 300, 395 S.E.2d 544 (1990). See also Scott v. Wagoner, 184 W.Va. 312, 314 n. 5, 400 S.E.2d 556, 558 n. 5 (1990); Sauls v. Howell, 172 W.Va. 528, 530, 309 S.E.2d 26, 28 (1983) ... ...
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Superior Court
    • 13 August 2001
    ... ... Thompson, 166 Vt. 414, 697 A.2d 335 (1997) ; Morris v. Henry, 193 Va. 631, 636, 70 S.E.2d 417 (1952) ; Scott v. Wagoner, 184 W.Va. 312, 400 S.E.2d 556 (1990) ; Caldwell v. Caldwell, 5 Wis.2d 146, 92 N.W.2d 356 (1958) ; Edelman v. Edelman, 65 Wyo. 271, ... ...
  • Wharton v. Wharton
    • United States
    • West Virginia Supreme Court
    • 10 December 1992
    ... ... See also Scott v. Wagoner, 184 W.Va. 312, 400 S.E.2d 556 (1990) (holding that the circuit court had authority to enforce a child support obligation as a lien ... ...
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Supreme Court
    • 26 August 2003
    ... ... Burden, 603 N.W.2d 916, 925 (S.D.1999) (child support obligation should survive death); Scott v. Wagoner, 184 W.Va. 312, 400 S.E.2d 556, 560 (1990) (court may enforce child support as lien against parent's estate when compelling equitable ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT