Skidmore v. Skidmore, 34736.

• Court: Supreme Court of West Virginia
• Citation: 691 S.E.2d 830
• Decision Date: 10 March 2010
• Docket Number: No. 34736.,34736.
• Parties: Donna Sue SKIDMORE, Petitioner Below, Appellee, v. Walter Burke SKIDMORE, Respondent Below, Appellant.

691 S.E.2d 830

Donna Sue SKIDMORE, Petitioner Below, Appellee,
v.
Walter Burke SKIDMORE, Respondent Below, Appellant.

No. 34736.

Supreme Court of Appeals of West Virginia.

Submitted January 13, 2010.

Decided March 10, 2010.

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COPYRIGHT MATERIAL OMITTED

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Daniel R. Grindo, Gassaway, WV, for Appellant.

Donna Sue Skidmore Williams, Sutton, WV, Appellee, Pro Se.

PER CURIAM:

The appellant herein and respondent below, Walter Burke Skidmore (hereinafter

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"Mr. Skidmore"), appeals from an order entered June 19, 2008, by the Circuit Court of Braxton County. By that order, the circuit court refused Mr. Skidmore's petition for appeal from orders of the Family Court of Braxton County entered May 21, 2008. In its May 21, 2008, orders, the family court granted the requests of the appellee herein and petitioner below, Donna Sue Skidmore (now Williams) (hereinafter "Mrs. Skidmore"),¹ to modify custody of the parties' minor child and to retroactively modify child support; however, the family court denied Mrs. Skidmore's request to prospectively modify child support. The family court additionally entered judgment against Mr. Skidmore and in favor of Mrs. Skidmore in the amount of $7,596.48 for retroactive child support. On appeal to this Court, Mr. Skidmore assigns error to the circuit court's refusal to consider his petition for appeal and contends that the family court erred by (1) retroactively modifying child support so as to retroactively increase Mr. Skidmore's child support obligation and (2) refusing to prospectively modify child support so as to prospectively decrease Mr. Skidmore's child support obligation. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we conclude that the family court erred by retroactively modifying Mr. Skidmore's child support obligation. Accordingly, we reverse that portion of the circuit court's order that refused Mr. Skidmore's appeal from this ruling and remand this matter to the Circuit Court of Braxton County for entry of an order reversing the family court's retroactive modification of child support. We further conclude, however, that the family court did not err by refusing to prospectively modify child support in favor of Mr. Skidmore, and, therefore, affirm that portion of the circuit court's order refusing Mr. Skidmore's appeal of that issue

I.

FACTUAL AND PROCEDURAL HISTORY

The parties to this proceeding, Mr. and Mrs. Skidmore, were married on March 11, 1989. Two children were born of the parties' union: Amber² and Janet.³ Thereafter, the parties separated on January 8, 1998, and Mr. Skidmore filed for divorce approximately one month later.

By order of the Braxton County Circuit Court entered April 1, 1998, which adopted the March 10, 1998, recommendations of the family law master, the parties were divorced. Pursuant to this order ratifying the family law master's recommendations, Mrs. Skidmore was awarded custody of the parties' two children, and Mr. Skidmore was granted visitation. Mr. Skidmore also was ordered to pay child support of $800.00 per month.⁴ Subsequently, by nunc pro tunc order entered May 17, 1999, the circuit court awarded the parties joint custody of their two children, with further proceedings to be had regarding child support.⁵

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At issue in the instant proceeding is the custody of and child support for Janet;⁶ Amber's custody and child support are not at issue herein. By the family court's June 30, 2003, order, the parties were granted "joint decision-making responsibility" vis-a-vis Janet, and it was contemplated that she would spend one-half of her time with each parent. This order further required the parties to continually provide each other with updated income information:

That the parties should exchange income information, including federal and state tax returns, with all schedules and W-2's, each year by February 15, and, said parties shall report to the BCSE Bureau for Child Support Enforcement any change in gross income within 15 days of any significant change in gross income; however, said reporting requirement should not be necessary if the change in gross income is less than a sic 15 percent.⁷

(Footnote added).

On August 29, 2007, Mrs. Skidmore filed a petition for modification of child custody and child support in the Family Court of Braxton County. In short, the petition indicated that Janet, who was fifteen years old, wished for her mother to have her sole custody; the petition additionally sought an increase in child support commensurate with the change in Janet's custodial placement.⁸ Mrs. Skidmore's motion to modify the parties' parenting plan was denied by the family court's temporary order of September 26, 2007; the court additionally referred Janet to a counselor to examine her desire to change her custody. Thereafter, the parties attended mediation and counseling.

During the pendency of the aforementioned petition, Mrs. Skidmore filed a second petition for modification, on January 16, 2008, seeking "back child support due to not working because of health problems and Mr. Skidmore not turning in increase in income from 2002-2003-2004-2005-2006 and 2007." In response to this petition, Mr. Skidmore filed his personal and corporate tax returns for 2006 and 2007. By temporary order entered March 24, 2008, the family court awarded Janet's sole custody to Mrs. Skidmore "due to DV domestic violence against Father Mr. Skidmore by Mr. Skidmore's second wife." Accordingly, the family court awarded Mr. Skidmore supervised visitation with Janet.

The family court held a hearing on Mrs. Skidmore's petitions on April 24, 2008. By order entered May 21, 2008, entitled "Findings of Fact and Conclusions of Law," the family court determined that, as a result of Mr. Skidmore's failure to provide his updated income information, Mrs. Skidmore was entitled to a retroactive modification of child support⁹ in the amount of $7,915.76.¹⁰ The family court additionally denied both parties' request for prospective modification of child support. Mrs. Skidmore's request for a prospective

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increase in child support was denied because Mr. Skidmore's income had decreased. Moreover, Mr. Skidmore's request for a prospective decrease in child support was denied because of "his failure to actively seek a modification himself either by petition or a counter-claim."¹¹

A second order of the family court entered on May 21, 2008, entitled "Order Adopting Parenting Plan and Granting Judgement Against Father on Retroactive Modification," adopted Mrs. Skidmore's parenting plan,¹² granted Janet's sole custody to Mrs. Skidmore, and permitted Janet to determine her visitation with her father. This order also entered judgment against Mr. Skidmore, upon Mrs. Skidmore's request for retroactive modification of child support, in the amount of $7,596.48.¹³ Finally, this order refused Mrs. Skidmore's request for prospective modification of child support through which she had sought an increase in Janet's child support award commensurate with her assumption of Janet's sole custody.

Mr. Skidmore appealed from these adverse rulings to the Circuit Court of Braxton County. By order entered June 19, 2008, the circuit court refused Mr. Skidmore's petition for appeal. From this decision, Mr. Skidmore now appeals to this Court.

II.

STANDARD OF REVIEW

The instant proceeding comes to this Court from the circuit court's refusal to consider Mr. Skidmore's petition for appeal from the family court's orders. We previously have held that,

"in reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

Syl. pt. 1, Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548 (2005). Cf. Syl. pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003) ("`In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.' Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)."). We will apply this standard to our review of the errors assigned by the parties.

III.

DISCUSSION

On appeal to this Court, Mr. Skidmore assigns two errors to the lower court's rulings:

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(1) improper retroactive modification of child support and (2) improper refusal to prospectively modify child support. Each of these errors will be considered in turn.

A. Retroactive Modification of Child Support

Mr. Skidmore first assigns error to the circuit court's refusal to reverse the family court's decision retroactively modifying his child support obligation. In this regard, the family court entered judgment against Mr. Skidmore for $7,596.48 in retroactive child support because it found that Mr. Skidmore had failed to disclose his income from 2002 to 2007. In its May 21, 2008, order setting forth findings of fact and conclusions of law, the family court explained its ruling as follows:

It was not disputed that the Mother Mrs. Skidmore had not received corporate or personal tax returns for the Father Mr. Skidmore since 2003, until after she filed her second Petition for Modification. The Father claims that he was unaware of the provisions in a prior order requiring such disclosure.

. . . .

In calculating the difference between the Child Support

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