Wyatt v. Wyatt, 19787

• Court: Supreme Court of West Virginia
• Citation: 408 S.E.2d 51,185 W.Va. 472
• Decision Date: 16 July 1991
• Docket Number: No. 19787,19787
• Parties: Ronald L. WYATT, Sr. Plaintiff Below, Appellee, v. Kimberly Ann WYATT Defendant Below, Appellant.

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408 S.E.2d 51 185 W.Va. 472 Ronald L. WYATT, Sr. Plaintiff Below, Appellee,
v.
Kimberly Ann WYATT Defendant Below, Appellant. No. 19787. Supreme Court of Appeals of
West Virginia. Submitted May 14, 1991.
Decided July 16, 1991. Syllabus by the Court

1. "The Department of Human Services receives only those rights to recoupment of benefits paid under the Aid to Families with Dependent Children Program (AFDC) that an AFDC recipient could assign: the recipient's right to support and maintenance. That right to support and

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[185 W.Va. 473] maintenance is dependent upon the ability of the responsible relative to pay, and the determination of ability to pay must be made through an administrative hearing or court proceeding." Syllabus Point 2, State ex rel. Department of Human Services v. Huffman, 175 W.Va. 401, 332 S.E.2d 866 (1985).

2. "The formal hearing that this court has required in State ex rel. Department of Human Services v. Huffman, 175 W.Va. 401, 332 S.E.2d 866 (1985), is placed by statute in the West Virginia circuit courts and the family law masters, at such time as a Child Advocate seeks a judgment for back support." Syllabus Point 1, Fenton v. Miller, 182 W.Va. 731, 391 S.E.2d 744 (1990).

3. 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.

4. "[T]he amount of child support shall be in accordance with the child support guidelines established pursuant to W.Va.Code, 48A-2-8(a) [1989], unless the family law master or the court shall determine, in a written finding or a specific finding on the record, that the application of the guidelines would be either unjust, inappropriate, waived by the parties pursuant to the safeguards outlined in W.Va.Code, 48A-2-8(a)(1) [1989], or contrary to the best interests of the children or the parties." Syllabus Point 3, in part, Gardner v. Gardner, 184 W.Va. 260, 400 S.E.2d 268 (1990).

5. W.Va.Code, 48A-2-8(a)(1) (1989), does not enable a parent to completely waive child support. The language of this subsection states that the parties must still enter "into an agreement which provides for the custody and support of the child or children[.]"

Cheryl L. Warman, James F. Sigwart II, Warman & Sigwart, Morgantown, for appellee.

Beth Longo Child Advocate Atty., Elkins, for appellant.

MILLER, Chief Justice:

This case is before us on appeal of a final order of the Circuit Court of Barbour County, entered April 12, 1990, by the Honorable John L. Waters. The appellant, Kimberly Ann Wyatt, asks us to reverse that order, which denied child support for the period from May 1988 to May 1990.

The parties to this action, Mrs. Wyatt and her former husband, Ronald L. Wyatt, Sr., were divorced on May 3, 1988, by order of the Circuit Court of Barbour County. The final divorce order ratified, approved, and confirmed a property settlement agreement entered into by the parties on April 19, 1988. This property settlement agreement granted custody of the parties' four children to Mrs. Wyatt. It provided that Mr. Wyatt would pay no child support for them during the time that he was completing his advanced education and up until the time when he had been gainfully employed for a period of at least ninety days. In ratifying the property settlement agreement, the circuit judge noted that he was not bound by the provisions regarding child support. However, no alternative provisions were made in the divorce decree.

Apparently in contemplation of the impending divorce decree, Mrs. Wyatt applied to the West Virginia Department of Human Services (Department) for Aid to Families with Dependent Children (AFDC) benefits. In compliance with the law, Mrs. Wyatt executed an assignment of her support rights to the Department on April 4, 1988. Mrs. Wyatt received her initial support payment of $360 per month from the Department in May 1988.

After the divorce, Mr. Wyatt continued his studies toward a bachelor's degree in mining engineering at West Virginia University. While engaged in these studies, Mr. Wyatt participated in a cooperative education program through which he was employed by the Mine Safety and Health Administration (MSHA). Mr. Wyatt earned approximately $910 per month while thus employed. He did not inform Mrs. Wyatt or the Department of his employment. When it came to their attention, he indicated that the job was temporary in nature.

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[185 W.Va. 474] After holding his position with MSHA for approximately one and one-half years, Mr. Wyatt quit in early 1990 and took a job paying approximately $400 per month. In reliance upon the divorce decree, Mr. Wyatt paid no child support during this period.

In December 1989, the Department and Mrs. Wyatt filed a petition for child support in the Circuit Court of Barbour County. This case was litigated by the Department as the subrogee of Mrs. Wyatt's rights to child support from Mr. Wyatt. A hearing was held before the family law master, who submitted his recommended decision to the circuit court on March 19, 1990. The family law master found that the Department had paid $360 per month to Mrs. Wyatt for the support of her children from May 1988 through March 1990, for a total of $8,280. He found that Mr. Wyatt had breached his duties of good faith and fair dealing by failing to notify Mrs. Wyatt of his employment status. He further found that Mr. Wyatt had the ability to pay $460 per month in child support during his period of employment with the MSHA. He also found that Mr. Wyatt had no intention of paying child support at all and would continue to delay his obligation as long as possible.

The family law master concluded that the property settlement agreement should be modified because it violated public policy by allowing Mr. Wyatt...