State ex rel. West Virginia Dept. of Health and Human Resources, Child Support Div. on Behalf of Laura F.M. v. Cline, 23411

• Decision Date: 08 July 1996
• Docket Number: No. 23411,23411
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD SUPPORT DIVISION, on Behalf of LAURA F.M. and Joseph Charles C., Plaintiff Below, Petitioner, v. Honorable Danny O. CLINE, Judge of The Circuit Court of Braxton County, and Mark Edward C., Defendants Below, Respondents.

Page 79

475 S.E.2d 79

197 W.Va. 79

STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF

HEALTH AND HUMAN RESOURCES, CHILD SUPPORT

DIVISION, on Behalf of LAURA F.M. and Joseph Charles C., Plaintiff Below, Petitioner, v. Honorable Danny O. CLINE, Judge of The Circuit Court of

Braxton County, and Mark Edward C., Defendants

Below, Respondents.

No. 23411.

Supreme Court of Appeals

of West Virginia.

Submitted June 25, 1996.

Decided July 8, 1996.

Syllabus by the Court

1. "Once a man and woman properly acknowledge that the man is the father of a child under W.Va.Code 48A-6-6 (1990), then absent a challenge to that acknowledgment by a person with standing to challenge the acknowledgment, no blood testing shall be required to disestablish paternity." Syl.Pt. 2, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).

2. Absent a judicial determination that an acknowledgment of paternity was entered into under fraud or duress, a written notarized acknowledgment by both the man and woman that the man is the father of the named child legally and irrevocably establishes the man as the father of the child for all purposes including child support obligations.

3. Pursuant to West Virginia Code § 48A-6-6(b) (Supp.1995), a written acknowledgment establishing paternity shall include: (1) the filing instructions; (2) the parents' social security numbers and addresses; and (3) a statement regarding the rights and obligations of acknowledging paternity, including, but not limited to, the duty to support a child. Failure or refusal to include all this required information, however, shall not affect the validity of the written acknowledgment, absent a finding by a court of competent jurisdiction that the acknowledgment was obtained by fraud or duress.

Ilene S. Schnall, Deputy In-House Counsel, West Virginia Department of Health and Human Resources, Child Support Enforcement Division, Charleston, for Petitioner.

Bernard R. Mauser, Sutton, for Respondent, Mark Edward C.

WORKMAN, Justice:

This case is before the Court upon the petition of the West Virginia Department of Health and Human Resources, Child Support Enforcement Division ("CSED" or "Petitioner"), seeking to prohibit a paternity test ordered on January 23, 1996, by the Respondent, the Honorable Danny O. Cline, Judge of the Circuit Court of Braxton County, West Virginia. The Petitioner contends that the circuit court erred in concluding that the subject child, mother and putative father should undergo a blood test when the putative father had previously signed an affidavit establishing his paternity at the time of the child's birth as provided for in West Virginia Code § 48A-6-6 (1990). ¹ Having reviewed the record, the petition ² and all other matters submitted to this Court, we grant the writ of prohibition finding that the circuit court ignored the express provisions of West Virginia Code § 48A-6-6, and concluding that, in light of the affidavit wherein the father admits paternity, blood testing is unwarranted. We remand this case to the family law master for complete disclosure of the parties' assets and a determination of child support in accordance with the West Virginia child support guidelines.

I.

Joseph Charles C., ³ the child who is the subject of the instant case, was born to Laura Frances M. at Women and Children's Hospital in Charleston, West Virginia on April 4, 1995. At the time of the child's birth, Mark Edward C., as well as Ms. M., signed a document entitled "State of West Virginia, Declaration of Paternity Affidavit" ("paternity affidavit"). ⁴ The paternity affidavit provided: "We, Mark E. C[ ][.] and Laura F. M[ ][.] ... [followed by both individual's social security numbers] being duly sworn acknowledge that Mark Edward C[ ][.] is the natural father of Joseph Charles C[ ][.], a male child born on 4-4-95[.] ..." Moreover, the affidavit contained the following statement: "W.Va.Code [ ] 48A-6-6(b) provides that 'a written acknowledgment by both the man and the woman that the man is the father of the named child legally establishes the man as the father of the child for all purposes and child support can be established under the provisions of this chapter.' " See W.Va.Code § 48A-6-6(b) (1990).

On June 7, 1995, Ms. M., with the CSED's help, filed a complaint for child support in the Circuit Court of Braxton County. Based on a hearing conducted before the family law master on August 15, 1995, the family law master, by order dated September 22, 1995, found that "[t]he Defendant MARK EDWARD C[ ][.], is the father of JOSEPH CHARLES C[ ][.] ..., [since] [t]he Defendant, MARK EDWARD C[ ][.], has acknowledged that he is the father of JOSEPH CHARLES C[ ][.], born on April 1, 1995 as evidenced by the Declaration of Paternity Affidavit." Further, the family law master found

[t]hat Defendant's Motion for blood tests and Motion to [s]et aside Declaration of Paternity Affidavit on the grounds of fraud or duress are DENIED. The Defendant is an educated man. The Plaintiff-Mother did not trick, mislead, or threaten him into signing the affidavit. Additionally, there is no statutory 72 hour "window" to revoke a paternity affidavit as the Legislature provide[d] in the case of Consents for Adoption. ⁵ (Footnote added).

Pursuant to the family law master's findings and conclusions, Mark Edward C. was ordered to pay child support in the amount of $135 per month, based upon a finding that his monthly net income was $855 per month. ⁶ According to the Petitioner, both parties filed exceptions and objections to this order. The CSED objected to the amount of child support, asserting that Mark Edward C. has substantial assets that warrant a higher child support amount. Mark Edward C. objected to the denial of the blood test and to paying child support as ordered.

To consider these objections to the family law master's recommendations, the circuit court conducted a hearing on December 8, 1995. By order entered January 23, 1996, the circuit court rejected the affidavit establishing paternity and directed that blood testing be performed "to determine the paternity of the subject child ... born unto the Plaintiff-Mother on April 4, 1995...." Specifically, the circuit court stated that it was

of the opinion that even though an acknowledgment was signed by both the Defendant and the Plaintiff, pursuant to W.Va.Code § 48A-6-6(b) (1990), that the Defendant-Father, being alleged to be the biological father of the subject child, has standing to challenge the written acknowledgment. The Court is of the opinion that scientific blood test[s] are available to accurately determine the paternity of the subject child. Furthermore, the Court questions whether or not that such acknowledgment adequately informs putative fathers as regards their respective "rights and obligations of acknowledging paternity" " as apparently contemplated in the amended statute of W.Va.Code § 48A-6-6(b) (1995).

The circuit court, however, did sustain the temporary support order established by the family law master, based upon the father's signing of the affidavit, and left in abeyance the father's motion for reimbursement of child support in the event he was found not to be the child's father. Further, the circuit court sustained the CSED's motion "to permit discovery so that it can investigate the adequacy of such [child] support amount [awarded by the family law master]."

II.

We recently held in syllabus point two of State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995), that "[o]nce a man and woman properly acknowledge that the man is the father of a child under W.Va.Code 48A-6-6 (1990), then absent a challenge to that acknowledgment by a person with standing to challenge the acknowledgment, no blood testing shall be required to disestablish paternity." We have never, however, addressed the effect that West Virginia Code § 48A-6-6 ⁷ has on paternity determinations. The statute provides that:

(a) A written, notarized acknowledgment by both the man and woman that the man is the father of the named child legally establishes the man as the father of the child for all purposes and child support may be established under the provisions of this chapter. The acknowledgment of paternity is irrevocable from the time of execution, unless a court of competent jurisdiction finds that such acknowledgment was obtained by fraud or duress.

(b) The written acknowledgment shall include:

(1) Filing instructions;

(2) The parents' social security numbers and addresses; and

(3) A statement regarding the rights and obligations of acknowledging paternity, including, but not limited to, the duty to support a child.

(c) Failure or refusal to include all information required by subsection (b) of this section shall not affect the validity of the written acknowledgment, in the absence of a finding by a court of competent jurisdiction that the acknowledgment was obtained by fraud or duress.

(d) The original written acknowledgment should be filed with the state registrar of vital statistics. Upon receipt of any acknowledgment executed pursuant to this section, the registrar shall forward the copy of the acknowledgment to the child support enforcement division and the parents, if the address of the parents is known to the registrar. If a birth certificate for the child has been previously issued which is incorrect or incomplete, a new birth certificate shall be issued.

Id.

The legislature is clear in its mandate that absent a judicial determination that an acknowledgment of paternity was entered into under fraud or duress, a written notarized acknowledgment by both the man and woman that the man is the father of the named child legally and irrevocably establishes the man as the father of the child for all purposes including child support obligations under the provisions of chapter 48A of the West Virginia Code. Moreover, pursuant to West Virginia Code § 48A-6-6(b), a...