In Re: W.J.
15-0881
W. Va.Nov 16, 2016Background
- Parents divorced; Family Court ordered father to pay $562/month support on Jan 7, 2013.
- Father injured, stopped working, and filed a pro se petition to modify support in Family Court (Clay County) in August 2014; that petition was dismissed for lack of jurisdiction because an abuse-and-neglect action was pending in Braxton County Circuit Court.
- In the Braxton County abuse-and-neglect proceeding (DHHR co-petitioner; mother co-petitioner), the father’s parental rights were later terminated (Oct. 8, 2013), but the support obligation remained at issue.
- Father (with counsel) filed a petition to modify child support in the Braxton County abuse-and-neglect case on Jan 5, 2015; the petition was mailed to parties that day but the Bureau for Child Support Enforcement (Bureau) was not served until June 25, 2015.
- Circuit Court reduced support to $50/month and set the modification effective July 1, 2015; father appealed solely contesting the effective date (seeking retroactivity to Aug 1, 2014 or Jan 1, 2015).
- Supreme Court held the circuit court erred: applying Family Court Rule 23 principles, the effective date should be Jan 1, 2015 (month service was made on parties in the abuse-and-neglect action), and remanded for recalculation of arrearage.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Bureau/Court) | Held |
|---|---|---|---|
| Whether modification should be retroactive to Aug 1, 2014 (date father filed in Family Court) | August 2014 filing should trigger retroactivity | Family Court lacked jurisdiction; filing in wrong court cannot support retroactivity | No — filing in Family Court was void for jurisdictional reasons, so Aug 2014 is not effective |
| Whether modification should be retroactive to Jan 1, 2015 (date petition mailed in Braxton abuse-and-neglect case) | Jan 2015 service on parties should make modification retroactive to that month | Circuit court required service on Bureau and set effective date when Bureau was served (July 2015) | Yes — Rule 23 retroactivity principles apply; effective date is Jan 1, 2015 because parties (and prosecuting attorney representing DHHR interests) were served then; remand to recalculate arrears |
Key Cases Cited
- In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit court findings in abuse-and-neglect bench trials)
- Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987) (circuit court modifications of support are prospective only absent fraud or other cognizable circumstances)
- Hayhurst v. Shepard, 219 W. Va. 327, 633 S.E.2d 272 (2006) (modifying Goff to reflect creation of Family Courts)
- State of W. Va. Dept. of Health & Human Resources, Bureau for Child Support Enforcement v. Smith, 218 W. Va. 480, 624 S.E.2d 917 (2005) (orders establishing child support in abuse-and-neglect cases must use Child Support Guidelines)
- In re J.L., 234 W. Va. 116, 763 S.E.2d 116 (2014) (circuit court retains jurisdiction over child support orders entered in abuse-and-neglect proceedings)
- In re Ryan B., 224 W. Va. 461, 686 S.E.2d 601 (2009) (termination of parental rights does not necessarily relieve parent of child support obligation)