Stewart v. Stewart, 16994

• Decision Date: 19 December 1986
• Docket Number: No. 16994,16994
• Citation: 351 S.E.2d 439,177 W.Va. 253
• Court: West Virginia Supreme Court
• Parties: Charles Allen STEWART v. Thelma Jean STEWART.

Page 439

351 S.E.2d 439

177 W.Va. 253

Charles Allen STEWART v. Thelma Jean STEWART.

No. 16994.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1986.

Syllabus by the Court

"Under the provisions of W.Va. Code, 48-2-15, as amended, jurisdiction to provide for the support, maintenance and education of a minor child is not abrogated or limited by the existence of child support provisions in a property settlement agreement which has been "ratified and confirmed" in a divorce decree." Syl.Pt. 2, State ex rel. Trembly v. Whiston, 159 W.Va. 298, 220 S.E.2d 690 (1975).

R. Sue Core, Elkins, for appellant.

Harry A. Smith, III, Elkins, for appellee.

PER CURIAM:

The appellant, Thelma Jean Stewart, appeals from a final order of the Circuit Court of Randolph County which, inter alia, awarded her custody of the parties' two infant children and denied her request for child support. For the reasons set forth below, we reverse.

Mr. and Mrs. Stewart were originally married on January 14, 1962. The marriage lasted until December 9, 1977 when a final divorce decree was entered. In that decree the court approved a "Property Settlement and Agreement" entered into by the parties which provided that Mrs. Stewart would receive custody of the couple's three children with reasonable visitation rights afforded Mr. Stewart. The agreement further provided that Mr. Stewart would convey his one-half undivided interest in two parcels of real estate jointly owned by the parties, and that in consideration of that conveyance, the appellant would waive her claim for alimony, make no claim for child support and agree to assume the unpaid balance on three deeds of trust and a paving lien of record against said real estate, such indebtedness as of August, 1977 being approximately $20,000. The parties stipulated that Mr. Stewart's equity in the real estate conveyed was at least $13,500 which was "considered in lieu of child support."

On January 14, 1982, Mr. and Mrs. Stewart remarried each other. They lived together until May 9, 1984, when Mr. Stewart left the marital home. The parties were granted a divorce on May 31, 1985 on the grounds of irreconcilable differences. In the second divorce proceeding, the appellant was given custody of the two remaining infant children but denied child support by the court because she had accepted the property in lieu of child support in the first divorce proceeding. The court also ruled, inter alia, that the appellant was solely responsible for a loan obtained by the parties during the second marriage. The appellant objects to both of the rulings.

W.Va. Code, 48-2-15 [1986] expressly empowers a court to make and enter orders and decrees requiring support and maintenance of minor children. Smith v. Smith, 134 W.Va. 448, 59 S.E.2d 894 (1950). The statute, by its own terms, contemplates continuing jurisdiction to modify child support orders. In Syllabus Point 6 of In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978), we held that "[c]hild support is always subject to continuing judicial modification," and in State ex rel. Trembly v. Whiston, 159 W.Va. 298, 220 S.E.2d 690 (1975), we held that the court's jurisdiction is not abrogated or limited by the existence of child support provisions in a property settlement agreement which has been approved by the court.

Continuing jurisdiction under W.Va. Code, 48-2-15, as amended, in matters of child custody and support is based on sound public policy. The welfare and interest of minor children must be protected by the courts. They are not independently represented in connection with any property settlement agreement and they are not parties to such an agreement. 159 W.Va. at 302, 220 S.E.2d at 693.

Although there was only one divorce proceeding in Trembly, the principles announced in that case are equally applicable here. We find that the court had jurisdiction to make an award of child support after the parties remarried and divorced a second time and that that jurisdiction was not abrogated by the property settlement in the first divorce. The only question before us is whether the court erred in refusing to make an award under the particular circumstances of this case.

The evidence was that the appellant received property in the first divorce in lieu of child support which was worth at least $13,500. She solely supported three children for three years after the first divorce until the oldest child reached eighteen, and supported two children thereafter for the following two years until her remarriage to...