Supcoe v. Shearer, 24995.

• Decision Date: 14 December 1998
• Docket Number: No. 24995.,24995.
• Citation: 512 S.E.2d 583,204 W.Va. 326
• Court: West Virginia Supreme Court
• Parties: Susan Shearer SUPCOE, Plaintiff Below, Appellee, v. Dan L. SHEARER, Defendant Below, Appellant.

512 S.E.2d 583

204 W.Va. 326

Susan Shearer SUPCOE, Plaintiff Below, Appellee, v. Dan L. SHEARER, Defendant Below, Appellant.

No. 24995.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 1998.

Decided December 14, 1998.

Michael J. Del Guidice, Esq., Ciccarello, Del Guidice & LaFon, Charleston, West Virginia, Attorneys for Appellee.

Edmund J. Rollo, Esq., Morgantown, West Virginia, Attorney for Appellant.

PER CURIAM:

This is an appeal by Dan L. Shearer (hereinafter "Mr. Shearer" or "Appellant") from a child support order of the Circuit Court of Monongalia County obligating Mr. Shearer to pay his former wife, Appellee Susan Shearer Supcoe (hereinafter "Mrs. Supcoe" or "Appellee"), retroactive child support of $8970.41 and prospective monthly support of $356.10. Mr. Shearer contends that retroactive child support is patently unfair based upon Mrs. Supcoe's failure to request court-ordered child support in a timely fashion. We affirm in part, reverse in part, and remand.

I. Facts

Mr. Shearer and Mrs. Supcoe were divorced in 1992, and custody of their child was originally granted to Mr. Shearer. By opinion filed in July 1994, in Shearer v. Shearer, 191 W.Va. 734, 448 S.E.2d 165 (1994), this Court reversed the circuit court decision and ordered that custody be granted to Mrs. Supcoe. Although Mr. Shearer voluntarily provided custody to Mrs. Supcoe subsequent to this Court's decision, a circuit court order reflecting the alteration in custody was not immediately entered, and no child support order was entered. Mr. Shearer maintained regular visitation with the child, but he did not make formal child support payments. He subsequently fathered a child by a different woman, and is voluntarily, without court order, paying $600 per month in support of that child.

In February 1996, Mr. Shearer and Mrs. Supcoe allegedly agreed that Mr. Shearer would pay $200 per month in child support for their child, and Mr. Shearer has made payments pursuant to that agreement. In January 1997, Mrs. Supcoe requested court-ordered child support during a hearing before a family law master. On February 4, 1997, the lower court entered an order reflecting this Court's July 1994 decision regarding change of custody. The family law master filed findings of fact and conclusions of law on April 25, 1997, recommending that Mr. Shearer pay $376.53 per month in child support prospectively and concluding that Mr. Shearer owed $9283.70 in back support dating from the August 1, 1994, change of custody from Mr. Shearer to Mrs. Supcoe.

The lower court, by order dated August 1, 1997, reduced the family law master's recommendation of support from $376.53 to $356.10 monthly and recalculated the arrearage at $8970.41. Mr. Shearer appeals that determination, and Mrs. Supcoe has also filed cross assignments of error. Mr. Shearer first maintains that the lower court erred by ordering him to pay child support from August 1, 1994, the date of the de facto change of custody, rather than January 29, 1997, the date upon which Mrs. Supcoe first requested court-ordered child support. Second, Mr. Shearer contends that the lower court erred by ordering that no part of the $600 voluntarily paid to another child should be an offset to the amount owed to Mrs. Supcoe. Third, Mr. Shearer argues that the lower court erred by finding that he knew of his obligation to support his child and should therefore be required to pay the retroactive support. Fourth, Mr. Shearer alleges that the lower court erred by finding that Mrs. Supcoe's request was not barred by laches.

Mrs. Supcoe assigns the following cross-assignments of error: The lower court erred by failing to award interest on the arrearage; and the lower court erred by failing to utilize the child support guidelines which became effective on July 1, 1997.

II. Standard of Review

Syllabus point one of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), instructs as follows:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; 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.

"`This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, State ex rel. Martin v. Spry, 196 W.Va. 508, 474 S.E.2d 175 (1996).

III. Retroactivity

West Virginia Code § 48-2-15(b)(2) (1998), discussing relief available upon an order of divorce, provides as follows:

When the action involves a minor child or children, the court shall require either party to pay child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated pursuant to section one, article one-b, chapter forty-eight-a of this code.

In the present case, when custody was transferred from Mr. Shearer to Mrs. Supcoe in August 1994, the lower court was statutorily authorized to determine the amount to be ordered as child support for the child. This Court remanded the case to the lower court, with directions to award Mrs. Supcoe custody of the child. Implicit in that ruling was the acknowledgment of the authority of the lower court to order such other relief as might be deemed necessary, including child support. While such relief was not immediately granted, the lower court, in the ruling presently before us, recognized the need to make the child support order retroactive to the date of transfer of custody.

Rule 19 of the Rules of Practice and Procedure for Family Law provides that child support can be made retroactive to the date of service of the motion for relief upon the opposing party, as follows: "A family law master or circuit court granting relief in the form of alimony or child support shall, except for good cause shown, make such award of alimony or child support retroactive to the date of service of the motion for relief upon the opposing party." See Wood v. Wood, 190 W.Va. 445, 438 S.E.2d 788 (1993)

.

In State ex rel. West Virginia Dep't of Health and Human Resources, Child Support Division, ex rel. Laura F.M. v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996),

we explained as follows:

Furthermore, if there is any question as to the retroactivity of any child support award, "[t]here 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." State, Dep't of Health and Human Resources, Child Advocate Office ex rel. Robert Michael B. v. Robert Morris N., 195 W.Va. 759, 764, 466 S.E.2d 827,

832 and Syl. Pt. 3 (1995).

197 W.Va. at 84, 475 S.E.2d at 84.

The obligation of child support is grounded in the moral and legal duty of support of one's children from the time of birth. In syllabus point three of Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51, 54 (1991), this Court explained: "The duty of a parent to support a child is a basic duty owed by the parent to the child, and a parent cannot waive or contract away the child's right to support." See also Lang v. Iams, 201 W.Va. 24, 491 S.E.2d 24 (1997)

. A child support order sets the amount to be paid and provides an effective basis for legal action should the obligor fail to pay. As the court succinctly explained in State v. Carbonaro, 712 So.2d 1225 (Fla.App. 2 Dist.1998), "[a] child support order, however, is never retroactive in the sense that it imposes a duty to pay for a period prior to a time when the legal and moral obligation existed."¹

712 So.2d at 1227.

Since child support is for the benefit of the child, the obligation persists regardless of the existence of an order. In Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), the Arkansas court stated: "We hold that a parent has a legal duty to support his minor children, regardless of the existence of a support order." 976 S.W.2d at 954 (citations omitted.) Even where "[t]here was no valid order of any court requiring the father to support his minor child[,]" the father "continued to have both a legal and moral duty to do so." Id. at 955, citing McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677, 678 (1943).

In Tamez v. Tamez, 822 S.W.2d 688 (Tex. App.—Corpus Christi 1991, writ denied), the court discussed the constitutionality of contempt and garnishment as a means to enforce child support orders and acknowledged that public policy imposes an obligation upon parents to support their children. Child support payments are therefore not considered a debt, but rather a legal duty. Id. at 691. In the present case, child support was originally requested in the divorce complaint. That date was understandably not employed in this retroactive order since the mother did not obtain custody until August 1, 1994. We find no abuse of discretion by lower court in setting the date of transfer of custody as the date upon which the obligation of child support would commence. The father's legal duty to support his child existed prior to the entry of an order setting the dollar amount of such duty. We affirm the lower court on this issue.

IV. Other Support Obligations

Mr. Shearer also contends that the lower court erred by ordering that no part of the $600 voluntarily paid to the other child should be an offset to the amount owed to Mrs. Supcoe. West Virginia Code § 48-2-16(b)(15) provides that a court may consider other legal obligations in calculating child support payments.² Mr. Shearer contends that the $600...