Stevens v. Stevens, 19921
| Decision Date | 12 December 1991 |
| Docket Number | No. 19921,19921 |
| Court | West Virginia Supreme Court |
| Parties | Alvin D. STEVENS, Plaintiff Below, Appellant, v. Susan A. STEVENS, Defendant Below, Appellee. |
Syllabus by the Court
1. "The execution of consent to the adoption of a child by its custodial parent and the custodial parent's current spouse is alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments." Syllabus point 1, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986).
2. "To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child." Syllabus point 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).
3. Syllabus, Holley v. Holley, 181 W.Va. 396, 382 S.E.2d 590 (1989).
Michael V. Marlow, Charleston, for appellant.
Ernest M. Douglass, Parkersburg, for appellee.
This is an appeal by Alvin D. Stevens from an order of the Circuit Court of Wood County modifying a previous child custody decree. The circuit court's order granted the appellant's former wife, Susan A. Stevens, custody of the parties' two minor children and directed the appellant to pay $599.48 child support for the two children. On appeal, the appellant claims that the court erred in directing him to pay child support for his daughter, when he had previously surrendered his parental rights to the daughter to the West Virginia Department of Human Services. He also claims that the circuit court erred in altering the previous custody arrangement and transferring custody of the parties' infant son to his former wife. He lastly claims that the amount of child support ordered by the court was unreasonable and that the court erred and abused its discretion by ordering him to pay the amount directed. After reviewing the record and the issues presented, this Court can find no reversible error. Accordingly, the judgment of the Circuit Court of Wood County is affirmed.
By order dated October 28, 1982, the appellant, Alvin D. Stevens and his wife, Susan A. Stevens, were divorced. That order awarded Susan A. Stevens custody of the parties' infant daughter, who at the time was three-years-old, and son, who at the time was one-year-old.
Subsequent to the divorce, Susan A. Stevens experienced difficulty in maintaining a home and supervising the children. As a consequence, by agreement of the parties, the divorce decree was modified on September 9, 1987, and custody of the children was transferred to the appellant.
After the appellant took charge of the children, his second wife and his daughter were unable to establish a positive relationship, and the child became uncontrollable. The situation culminated with the second wife beating the child with a belt on November 3, 1989. After the beating occurred, the appellant took his daughter to the emergency room at Camden-Clark Memorial Hospital on November 7, 1989. After seeing belt marks on the child, the physician at the emergency room filed a report of suspected child abuse and/or neglect.
Apparently as a result of the filing of the abuse and/or neglect report, the appellant, on or about January 19, 1990, executed a document by which he relinquished his parental rights to his daughter to the West Virginia Department of Human Services. Subsequently, on or about February 16, 1990, the appellant's former wife, Susan A. Stevens, petitioned for modification of the 1987 custody order and prayed that she be granted custody of the parties' two infant children, as well as child support.
A hearing was conducted on the petition for modification on March 13, 1990, before the family law master for Wood County, West Virginia. At the conclusion of the hearing, the family law master recommended that Susan A. Stevens be awarded custody of the two minor children and that the appellant pay his former wife $599.78 support for the two children.
The matter was submitted to the Circuit Court of Wood County, and the circuit court, without conducting a further hearing, by order entered May 7, 1990, adopted the family law master's rulings.
On appeal, the appellant first claims that the trial court and family law master erred in awarding his former wife child support for the couple's infant daughter. He argues that since he had previously surrendered all his parental rights to the child to the West Virginia Department of Welfare, the court erred in requiring him to pay support for the child.
A number of cases from other jurisdictions have recognized that relinquishment and termination of parental rights results in a termination of parental obligations. Coffey v. Vasquez, 290 S.C. 348, 350 S.E.2d 396 (1986); State v. Smith, 571 So.2d 746 (La.Ct.App.1990); State ex rel. Secretary of Social and Rehabilitation Services v. Clear, 248 Kan. 109, 804 P.2d 961 (1991). In each of those cases the parental rights to the child involved were terminated.
In the fairly recent case of Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986), this Court discussed a situation analogous to the one presented in the present case. In Kimble, the Court pointed out that there was a distinction between a parent executing a consent to adoption or other document expressing a willingness to surrender his parental rights and an actual judicial termination of those rights. The Court indicated that the mere execution of a document, in that case a consent to adoption, showing a willingness to surrender parental rights is alone insufficient to terminate the noncustodial parent's decretal obligation to make child support payments. In syllabus point 1 of Kimble v. Kimble, the Court stated:
The execution of consent to the adoption of a child by its custodial parent and the custodial parent's current spouse is alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments.
The Court indicated that the rationale behind this is to protect the interest of the child and indicated that a divorced parent cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise. The right of a child to support can only be reduced or terminated by court order. See Kimble v. Kimble, Id. 176 W.Va. at 50, 341 S.E.2d at 425.
From the present record, this Court cannot determine that the appellant's parental rights were ever legally terminated. Although the appellant...
To continue reading
Request your trial