Scott v. Wagoner, No. 19527

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 400 S.E.2d 556,184 W.Va. 312
• 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.
• Decision Date: 12 December 1990
• Docket Number: No. 19527

Page 556

400 S.E.2d 556 184 W.Va. 312, 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. No. 19527. Supreme Court of Appeals of
West Virginia. Dec. 12, 1990. 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

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[184 W.Va. 313] 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,

Page 558

[184 W.Va. 314] 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...