State ex rel. Wv Dept. of Health v. Varney

• Citation: 655 S.E.2d 539
• Decision Date: 21 November 2007
• Docket Number: No. 33332.,33332.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD SUPPORT ENFORCEMENT DIVISION, and Angela L. Varney, Petitioners Below, Appellants v. Cecil C. VARNEY, Respondent Below, Appellee.

655 S.E.2d 539

STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHILD SUPPORT ENFORCEMENT DIVISION, and Angela L. Varney, Petitioners Below, Appellants v. Cecil C. VARNEY, Respondent Below, Appellee.

No. 33332.

Supreme Court of Appeals of West Virginia.

Submitted October 24, 2007.

Decided November 21, 2007.

Syllabus by the Court

1. "In a proceeding governed by the Rules of Civil Procedure, a judgment rendered in such proceeding is not final and effective until entered by the clerk in the civil docket as provided in Rule 58 and Rule 79(a) of the Rules of Civil Procedure." Syl. pt. 4, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819 (1974).

2. "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).

3. "The ten-year statute of limitations in W.Va.Code, 38-3-18 [1923] and not the doctrine of laches applies when enforcing a decretal judgment which orders the payment of monthly sums for alimony or child support.' Syllabus point 6, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993)." Syl. Pt. 6, Collins v. Collins, 209 W.Va. 115, 543 S.E.2d 672 (2000).

4. "By the specific terms of W.Va.Code § 38-3-18 (1923) (Repl.Vol.1997), the issuance of an execution operates to preserve the judgment, and the statute of limitations commences to run from the return date of the execution." Syl. Pt. 7, Collins v. Collins, 209 W.Va. 115, 543 S.E.2d 672 (2000).

Angela L. Varney, Delbarton, WV, pro se.

Cecil C. Varney, Williamson, WV, pro se.

PER CURIAM.

This is an appeal by Appellant Angela L. Varney¹ from an order of the Circuit Court of Mingo County, West Virginia, which denied her appeal and affirmed the final order of the Family Court of Mingo County. At issue is the enforceability of a decretal judgment for alimony arrearages against Appellant's former spouse, Appellee Cecil C. Varney. The court below determined that the statute of limitations applies to bar Appellant's claim. Upon careful review of the briefs, record, arguments of counsel, and applicable precedent, this Court reverses the order of the circuit court.

I. Factual and Procedural Background

During the pendency of the parties' divorce proceedings—which began over seventeen years ago—numerous motions and briefs were filed with respect to custody of the parties' only child, the payment of certain marital debts and the disposition of certain marital assets. As a result of this protracted ordeal, a plethora of orders were entered addressing these issues, which either have been resolved or are not relevant to the instant appeal. Therefore, we recite only those facts and refer only to those filings and court orders which are pertinent to resolution of this appeal.

The sole question in this appeal involves a judgment for alimony arrearages entered against Appellee and in favor of Appellant. On June 5, 1991, the circuit court entered an Order Pendente Lite, which, inter alia, provided that "[b]y agreement of the parties, the defendant [Appellee herein] shall pay $1,000 per month as alimony to the plaintiff [Appellant herein] during the pendency of this action."

The parties were subsequently divorced by Divorce Decree entered in the Circuit Court of Mingo County on January 27, 1992. Also on that date, the circuit court entered a Final Order with Findings of Facts, Conclusions of Law and Recommendations to the Court,² in which the various issues relating to the parties' divorce were addressed.³

Relevant to the instant appeal, the court made reference to Appellee's failure to comply with the June 5, 1991, Order Pendent Lite⁴ and stated, in paragraph 35, that

Since the time a temporary hearing was held in this matter by the former Special Family Law Master[,] the Defendant [Appellee herein] has failed to comply with his agreement made. Whether, due to the delay of the entry of the Order, the matter can be said not to constitute a decretal judgment, it nevertheless constituted a contractual commitment of the Defendant to make such payments. Accordingly the Plaintiff [Appellant herein] should be granted a judgment against the Defendant for all arrearages of support and Five Thousand Two Hundred Dollars ($5,200.00) for payments made by the Plaintiff on the debts.

Absent from the January 27, 1992, order was any calculation of the amount of support in arrears, including any reference to a specific time period during which the Appellee failed to make the subject support payments.

A contempt proceeding was conducted on January 27, 1992,⁵ before the Honorable David W. Knight, Special Judge. Judge Knight subsequently entered an Order Pursuant to Rule and Modifying Divorce Decree on March 19, 1992. This order was entered by the clerk of the circuit court in Civil Order Book No. 82, at page 546, on March 23, 1992. The Order Pursuant to Rule and Modifying Divorce Decree concluded, inter alia:

During the course of the hearings, various testimony on documentary evidence was introduced which leads the Court to believe that there should be a modification of the Divorce Decree for the purposes of clarification.

It is, therefore, ORDERED that the Divorce Decree entered on the 27th day of January, 1992, be, and hereby is, modified as follows:

1. Paragraph 35 of the Family Law Master's Recommended Decision which was incorporated into the Divorce Decree shall henceforth read as follows:

Since the time a temporary hearing was held in this matter by the former Special Family Law Master, the Defendant has failed to comply with his agreement made. Whether, due to the delay of the entry of the Order, the matter can be said not to constitute a decretal judgment, it nevertheless constituted a contractual commitment of the Defendant to make such payments. Accordingly, the Plaintiff shall be granted a judgment against the Defendant for all arrearages of alimony totalling Eleven Thousand Dollars ($11,000.00), plus interest calculated at ten percent (10%) from the month of October, 1991, per annum, and Five Thousand Two Hundred Dollars ($5,200.00) for payments made by Plaintiff on the debts, plus interest, from the month of October, 1991, at a rate of 10%, per annum.

. . . .

3. All the rest and residue of the Divorce Decree . . . shall remain unchanged and in full force and effect.

During the course of the January 27, 1992 contempt proceeding, the judge explained his reason for modifying paragraph 35 of the previously-entered divorce decree⁶ as follows:

I find that the arrearage should have been stopped and the alimony should have been stopped at the time the law master made his finding, which was the first of October, 1991⁷ and that there was a period of 11 months, according to my calculation between the last hearing and what would have been the end of September. So, I find that the arrearage from that period of time or [sic] $11,000.00, in addition to that the law master made a finding of $5,200.00 in paragraph 35. I find that the $400.00 a month figure set by the law master, set by the agreement for additional support in the temporary petition order on paragraph 35 and will grant a judgment against the defendant for $11,000.00 and the $5,200.00.

. . . .

The judgment should include the $11,000.00 and the $5,200.00 and the pre-judgment interest from the last of September and the first of October, 1991 and I am not going to compound the interest.

(Footnote added).

The court also found that Appellee's failure to make support payments under the June 5, 1991, order did not amount to either civil or criminal contempt. According to the transcript, the court explained that its ruling that the interest should not be compounded was based, in part, on its finding of no contempt. Additionally, the March 23, 1992, order denied the BCSE's motion to establish a program of automatic withdrawal from Appellee's business account for amounts owed under the June 5, 1991, order.

Thereafter, Appellant, along with the BCSE, attempted to collect the foregoing judgment. As reflected in a December 19, 1996, circuit court order, a Writ of Suggestion was issued and served on an officer of the Bank of Mingo in an effort to secure funds on deposit there in the name of Appellee and his mother, Mary Varney. The December 19, 1996, order refers to the family court's March 23, 1992, order awarding Appellant "alimony which was unpaid resulting in arrearage against the defendant of $17,214.16 as of August 31, 1996, including interest[.]" Notably, on January 10, 1997, Appellee filed a Motion for Stay of Order and an accompanying affidavit, in which he neither objects to or otherwise questions the court's reference to the March 23, 1992 order as awarding the judgment against Appellee. Ultimately, an Order Quashing Suggestion Execution and Lifting Stay was entered on November 3, 1997, on the ground, inter alia, that notwithstanding the apparent joint ownership of the funds, the funds are the sole property of Appellee's mother and not subject to execution by Appellee's creditors.

Meanwhile, the West Virginia Department of Health and Human Resources, Child Support Enforcement Division, filed a Petition for Contempt. On September 22, 1997, the circuit court granted the petition and entered an Order to Show Cause requiring Appellee to show cause as to why he should not be adjudged in contempt for refusing to obey the March 23, 1992,⁸ order requiring him to pay a judgment for alimony. On January 15, 1998, Appellee filed a Motion to Dissolve Order to Show Cause. Approximately five years later, by order entered August 26, 2002, the court found Appellee not to be in contempt and, accordingly, entered a Final Order...