State, Dept. of Health and Human Resources, Child Advocate Office on Behalf of Robert Michael B. v. Robert Morris N.

• Decision Date: 15 December 1995
• Docket Number: No. 22916,22916
• Citation: 195 W.Va. 759,466 S.E.2d 827
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD ADVOCATE OFFICE, on Behalf of ROBERT MICHAEL B., Minor Child of Trudy Mae B., Plaintiff Below, v. ROBERT MORRIS N., Defendant Below, Appellee, Trudy Mae B., Plaintiff Below, Appellant.

Page 827

466 S.E.2d 827

195 W.Va. 759

STATE of West Virginia, DEPARTMENT OF HEALTH AND HUMAN

RESOURCES, CHILD ADVOCATE OFFICE, on Behalf of

ROBERT MICHAEL B., Minor Child of Trudy

Mae B., Plaintiff Below, v. ROBERT MORRIS N., Defendant Below, Appellee, Trudy Mae B., Plaintiff Below, Appellant.

No. 22916.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 27, 1995.

Decided Dec. 15, 1995.

Syllabus by the Court

1. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court ... 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, in part, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

2. "Upon a judicial determination of paternity, the paternal parent shall be required to support his child under W.Va.Code, 48A-6-4 (1986), and may also be liable for reimbursement support from the date of birth of the child. The right of reimbursement support on behalf of the custodian of the child is subject to the doctrine of laches." Syl.Pt. 2, Kathy L.B. v. Patrick J.B., 179 W.Va. 655, 371 S.E.2d 583 (1988).

3. There is a presumption that reimbursement child support is retroactive to the child's date of birth, absent any assertion and proof that the doctrine of laches or other affirmative defense is applicable to said reimbursement support.

4. " 'Mere delay will not bar relief in equity on the ground of laches. "Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right." ' Syllabus point 2, Bank of Marlinton v. McLaughlin, 123 W.Va. 608, 17 S.E.2d 213 (1941)." Syl.Pt. 1, State ex rel. Smith v. Abbot, 187 W.Va. 261, 418 S.E.2d 575 (1992).

5. "According to Rule 15(b), W.Va.R.C.P. [,] an amendment to a pleading to assert an affirmative defense offered during or after trial over the objection of the opposing party should not be accepted unless (1) it permits the presentation of the merits of the action; (2) the adverse party will not be prejudiced by the sudden assertion of the defense; and (3) the adverse party is given ample opportunity to meet the issue." Syl.Pt. 4, Nellas v. Loucas, 156 W.Va. 77, 191 S.E.2d 160 (1972).

Appeal from the Circuit Court of Lincoln County; Honorable Jay M. Hoke, Judge; Civil Action No. 93-C-319.

Michael R. Cline, Charleston, for Appellant.

Boyce Griffith, Alum Creek, for Appellee, Robert Morris N.

R. Jeffrey Johnson, Ellen R. Archibald, Charleston, for West Virginia Department of Health and Human Resources, Child Advocate Office, Amicus Curiae.

WORKMAN, Justice:

This appeal is before the Court from the final order of the Circuit Court of Lincoln County, West Virginia, arising out of a paternity action. Pursuant to that order, entered on November 17, 1994, the circuit court approved and entered the family law master's recommended order. According to the family law master's recommended order, the Appellee, Robert Morris N., ¹ was directed to pay monthly child support and, in addition, a lump sum representing child support reimbursement accruing during the paternity litigation. The Appellant, Trudy Mae B., contends that the reimbursement support should have been calculated from the child's date of birth. Having considered all matters of record ² and the parties' briefs and arguments, we reverse the circuit court's final order and remand for further proceedings consistent with this opinion.

I.

On March 11, 1986, the Appellant gave birth to a child, Robert Michael B., who is now approximately nine years old, and who has continuously lived with and been supported by the Appellant mother. On or about October 1, 1993, the Appellant contacted the Child Advocate Office of the West Virginia Department of Health and Human Resources (hereinafter "CAO") concerning child support. In November 1993, the CAO, pursuant to West Virginia Code § 48A-6-1(e)(3) (1993), ³ filed a paternity action on the child's behalf against the Appellee asserting, inter alia, that the Appellee's duty to reimburse the Appellant for child support commenced from the child's date of birth. Upon the filing of an answer denying the averments of the complaint, the family law master entered an order requiring paternity blood testing, the results of which demonstrated a 99.99% probability that the Appellee was the child's father.

Thereafter, on August 4, 1994, the family law master conducted a hearing during which an agreement was entered into between the CAO and the Appellee. Pursuant to the agreement, the Appellee admitted the paternity of the child and consented to pay $321.57 per month child support; however, the issue of child support reimbursement remained in dispute, and argument upon that issue was received at the hearing.

Subsequent to the hearing, the family law master, on September 8, 1994, entered a recommended order finding the Appellee to be the child's father and ordering the Appellee to pay $321.57 per month for child support. The child support payments were ordered to commence as of September 1, 1994. Furthermore, the recommended order directed the Appellee to pay $3,692.37 for child support reimbursement, representing the period from October 1, 1993, when the Appellant first contacted the CAO, to August 31, 1994. ⁴ The reimbursement award back to the date of October 1, 1993, was based upon the family law master's determination at the August 4, 1994, hearing that "there's a limit, I think, to how far we can go back in setting the support, and the earliest date that is in the file is October of 1993, so I will set it back to October of 1993." These comments, when read in the context of the discussion of back child support, indicate that the family law master believed the date the Appellant initiated the proceedings was the earliest date she (the family law master) had the authority to order back support. ⁵

There was absolutely no finding of fact or conclusion of law in the family law master's recommended order with regard to the issue of laches. The Appellee did not plead the affirmative defense of laches, nor did he offer evidence to support it. In fact, neither the word nor the concept of laches was ever raised until the October 6, 1994, hearing before the circuit court.

Following the issuance of the recommended order, the Appellant, who was a pro se ⁶ litigant before the family law master, obtained counsel and filed an exception to the recommended order. Specifically, the Appellant asserted that the family law master erred in failing to award child support reimbursement from March 11, 1986, the child's date of birth.

The circuit court conducted a hearing on the Appellant's exception. It was at this hearing that laches was first invoked, when the Appellee's counsel argued that laches prevented the Appellant from receiving further child support reimbursement. The Appellee's counsel argued that the laches issue was agreed upon by the parties prior to the August 4, 1994, family law master hearing, and was considered by the family law master. That alleged discussion, however, was never set forth in the record, and the Appellant claims not to have been privy to it. Furthermore, counsel for the Appellee and the child advocate specifically stated their agreement on the record and indicated that a dispute remained with regard to the arrearage dating back to the child's birth. In contrast, the Appellant's counsel argued before the circuit court that the family law master "made no findings of any kind or nature that finds any laches or anything like that that bears in the record of this case. And I invite you [the court] to reread the transcript in that regard."

The Appellee argues on appeal that the defense of laches was asserted during the course of the hearing before the family law master by the Appellee's counsel's claim that "it [would] just be manifestly unfair" to order child support from the date of birth.

However, as will be set forth more fully herein, one who seeks to assert the defense of laches must show "(1) lack of diligence by the party against who the defense is asserted, and (2) prejudice to the party asserting the defense." State ex rel. Smith v. Abbot, 187 W.Va. 261, 264, 418 S.E.2d 575, 578 (1992) (citing Mogavero v. McLucas, 543 F.2d 1081 (4th Cir.1976)).

By order entered on November 17, 1994, the circuit court denied the Appellant's exception and approved and entered the family law master's recommended order. The circuit court found that the family law master "properly applied the doctrine of laches" to the Appellant's requested relief. ⁷

II.

Initially, we note that a recommended order of a family law master is reviewable by a circuit court pursuant to West Virginia Code §§ 48A-4-16 (1993) and 48A-4-20 (1993), as well as Rules 22 to 29 of the Rules of Practice and Procedure for Family Law. As stated in West Virginia Code § 48A-4-20(c): "The circuit court shall examine the recommended order of the master, along with the findings and conclusions of the master[.]" Id. In turn, the final order of a circuit court in such cases is reviewable by this Court. Marilyn H. v. Roger Lee H., 193 W.Va. 201, 204, 455 S.E.2d 570, 573 (1995). Also, we recently held in syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995) that: "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court ... 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." Id. at 264, 460 S.E.2d at 265, Syl.Pt. 1, in part.

III.

The sole issue before the Court is whether the circuit court erred in holding that the affirmative defense of laches was a proper basis in this case to deny reimbursement support to the Appellant back to the...