*1 SHAFFER, (Stanley) Nada D. Below, Appellee,
Plaintiff Gary STANLEY,
Wetzel Defendant
Below, Appellee, Virginia Department West Resources, Human Bureau
Health and Enforcement, Appel- Support
for Child
lant.
No. 31118. Appeals
Supreme Court Virginia. Sept. 2003.
Submitted Davis, J., part. opinion dissenting in Nov. Decided Dissenting Opinion of Justice
Davis Dee.
April order of the Circuit Court of County Lincoln that holds the BCSE and Stanley jointly severally liable to appellee, Garry Stanley, Wetzel $19,837.96,which the court determined to be overpayment support paid by of child Stanley.
I.
FACTS gleaned The essential facts this case pleadings from the record and the of the parties appellee, are as follows. The Wetzel Garry Stanley (“Mr.Stanley”), and Nada D. Stanley1 in 1978. were divorced Nada Stan- ley granted custody couple’s was of the two children, Stanley and Mr. was pay ordered to per support.2 month child $200 1, By August Stanley order of Nada granted judgment against Mr. Stanley unpaid support. the amount of child for $1000 16, 1981, or about On a writ of June execu- suggestion attempt tion filed were execute award. In appellant, Bureau for (“BCSE”), Support Child Enforcement inter- cepted Stanley the income tax refund Mr. year tax unpaid for child support. for According Stanley’s to Mr. during counsel Court, argument oral this for before the next years Stanley several Mr. “did what he Hamlin, Hill, Esq., Virginia, L. David West support obligation could” meet his child Attorney Stanley. for W.G. occasionally payments cash direct- Kimberly Esq., Bentley, D. Assistant Gen- admitted, however, ly Stanley. to Ms. He Counsel, Department West eral paid the total amount was “minimal.” Resources, and Human Bureau for Health During time, action no official was taken Enforcement, Charleston, Support Child Stanley by the or Ms. BCSE enforce Mr. DHHR, Virginia, Attorney for WV Stanley’s support obligation, although child BCSE. Stanley apparently regular Mr. received bill- Perrone, Legal Esq., Bruce G. Aid of West ing statements and letters the BCSE Curiae, Virginia, Attorney for Amicus support. effort to collect child Stanley. years through for the tax 1997, it regularly attempted unsuccessfully to MAYNARD, Justice: intercept Stanley’s Mr. income tax refunds. appellant, Sup- Stanley In peti- the Bureau Child October Ms. filed (“BCSE”), port appeals contempt against Stanley Mr. Enforcement tion for his Although Stanley’s appears again Ms. name in the vorced Mr. Shaffer and once took the Shaffer, Stanley. style (Stanley) name of this case as Nada D. explains in her brief she amicus curiae that after Stanley, support obligation she her divorce Mr. married a man This ceased in March 1994 However, by operation subsequently Shaffer. named she di- of law. Stanley’s withholding from Mr. support. that income Later
failure security monthly social check be limited month, To the BCSE issued “Notice Source order was This recommended errone- $300. Withholding” to the Income To Initiate Of ously April on entered absent Security to withhold Administration Social ten-day period opportunity afforded Mr. specified amounts to meet exceptions to a which to file recommended obligations. Mr. December family Accordingly, law master. order disability Security Stanley received a Social 23,1998 January orders November $20,000, from which backpay award of about order, 22,1999, circuit court set aside the withholding.3 Also in was no Decem- there family regarded it as a valid law master’s petition filed ber exceptions could be filed with- order which Although a hear- arrears. determination days. in ten family law on ing was held before master4 parties’ petitions, no order was entered family exceptions hearing. as a result law master’s recommended order based apply statute of failure March issued On judgments limitations the execution Compensation Division a “No- the Workers’ *5 Subsequently, § 38-3-18. the W.Va.Code Employer/Source To Of Income To Initi- tice Stanley circuit court held that Nada and the result, Withholding.” As a in March ate pursue failed to collection of child BCSE $32,796.60 intercepted from the BCSE in support the writ of execution filed between lump Compensation sum award a Workers’ petition in contempt 1981 and the filed Stanley sup- payment of child to Mr. for the Therefore, of limitations the statute arrearage. money for- port This was then support prior of barred collection child owed Stanley. to Nada warded 1,1983 years prior which was ten October Stanley peti- In Mr. a October Stanley’s petition. contempt Ac- Nada support child in which tion for modification of cordingly, the circuit court ordered withholdings requested that BCSE he support child ar- BCSE to recalculate the monthly Security Social check be from by rearage Stanley. Mr. owed hearing February After terminated. recalculation, Following the circuit family April master law entered Stanley to Mr. granted judgment court 9, 1998, rejected Mr. order in which she overpayment Stanley for an of of Stanley’s claim that the statute limitations $17,855.49, support amount of portion barred collection of the arrear- plus interest. The BCSE ordered Stanley age.5 gave also Mr. a credit She Stanley Mr. return held monies to Security arrearage for Social ben- toward the activity. cease collection directly Stanley paid to Nada on behalf efits Stanley subsequently filed motion to couple’s children the amounts of $96 clarify requesting circuit court’s order February per through No- month BCSE, Stanley, to Nada that the addition 1994; month from per December $98 vember responsible refunding also be held 1995; through May lump sum overpayment. court The circuit found the addition, $2,745.90 in 1993. In payment of jointly severally liable BCSE for the family law master awarded the BCSE repayment because it breached Stanley in against Mr. a decretal proper withholdings party. to the forward $2,896.76, the amount reimbursement formerly paid Stanley to Nada Stan- It is now known that Nada re- welfare benefits family discharge bankruptcy of all ley. Finally, law ordered ceived a debts master BCSE, (2001). Stanley’s proceedings one of Mr. 51-2A-23 this case security dependent family system. children received a social master occurred under the law backpay ongoing $3078.00 benefits award monthly payments $96.00. family law found that Mr. 5.The master hands,” judgment, the “unclean the 1980 family system operate law ceased to 4. The master suggestion, intercepts tolled income tax January replaced and was on the statute limitations. system family judges. claims, decedent, including representative claim asserted shall be overpayment. brought support years qualifi- within five Accordingly, solely respon- representative. is now cation of such overpayment to Mr. sible for the found, The circuit court support obligations pursuant his child exception 10-year there circuit court’s order.6 statute limitations set forth in West Virginia ... Code 38-3-18. Section
II.
Zanke,
Zanke v.
princi-
the Court
reaffirmed
STANDARD OF REVIEW
pal
Accordingly,
[sic].
is ORDERED
In considering the circuit court’s
...
plaintiff
ADJUDGED that
challenged by
now
order
we are
State West
are barred
guided
our
rule that “[t]his
oft-stated
from collecting
statute
limitations
Court reviews the circuit court’s final order
any past
pay-
due child
which was
disposition
and ultimate
under an
abuse
prior
October,
including
able
discretion
challenges
standard.
review
We
judgment.
Support
Child
En-
findings
clearly
of fact under a
erroneous
recompute
forcement Division shall
the de-
standard; conclusions of law are reviewed de
'
arrearage beginning
fendant’s
with a zero
Syllabus
Burgess
novo.”
Point
v. Porter
1,1983[.]
balance
due October
(1996).
field, 196 W.Va.
Initially, we conclude that
man
ner
applied
III.
the circuit court
time limitation in W.Va.Code
38-3-18 is
*6
DISCUSSION
dispute
correct. There is no
that the limita
whether the circuit court erred in its
judgments
tion
(1923),which states:
The first
A. Applicability
the time
Year Limitation Period
found in W.Va.Code
issue before
limitation
for
the Teiv-
execution of
Court is
38-3-18
applica
McKinney, 189
to the collection of child
set
tion
forcing
not the doctrine of laches
forth in
period
“[t]he
decretal
W.Va.Code,
Syllabus
ten-year
W.Va.Code
W.Va.
judgment
Point
statute of limitations
459,
38-3-18
support judgments.
§
applies
which
6 of
432
38-3-18
Robinson v.
S.E.2d 543
[1923]
orders the
when en
applies
and
judgment,
may
payment
On
of monthly
alimony
execution
be issued
sums
addition,
years
within
support.”
ten
the date
child
after
thereof.
In
is well estab
years
within
provision
periodic
Where execution issues
ten
as
lished that when a
aforesaid,
may
other
payments
executions
be issued
is
support
a di
decree,
judgment
years
on such
within ten
from vorce
these installments become de
day
judgments
the return
last execution
they
issued
cretal
as
become due. See
thereon,
Syllabus
Goff,
on which
is no
there
return
an
Point 1 of
v.
177 W.Va.
Goff
742,
(1987)
officer or which
356
(holding
has been returned unsatis-
S.E.2d 496
action,
may
An
provided
fied.
suit or scire facias
for in
“[m]atured
be
installments
a de
cree,
brought upon a judgment
monthly
where there has
which
payment
orders the
change
parties by
alimony
support,
been
death or
sums for
or child
other-
stand as
any
years
at
judgments’
against
party
wise
time within ten
next
‘decretal
judgment;
charged
payments.”). Finally,
after the date of
or within
with
“[t]he
Code,
years
day
38-3-18,
provided
applied
ten
the return
the last
limitation
payable
judgment
execution issued
on which there is
to a decretal
thereon
install
ments,
no return
or which has
officer
been
commences to run when each install
action,
due,
part
if
returned unsatisfied. But
ment becomes
as to the
of said
3,
personal
judgment
payable.” Syllabus
suit or scire facias
be
then
Point
Although
Stanley protected
Nada
from liabil-
filed an amicus curiae
with this Court on
brief
ity
bankruptcy discharge,
as a result of the
behalf of the
she
BCSE.
Solonka,
given
but will
interpreted
the courts
be
S.E.2d
Korczyk v.
130 W.Va.
Syllabus
(1947).
and
Point
full force
effect.”
7. Rule 69 issuance, days days subject nor than 90 after also of execu- more Procedure addresses by 69(a) procuring concerning person issuance of directed to Rule exe- tions. writ; (2) to a money: an answer summons payment for the of cutions suggestion proceeding in a shall be issued pay- judgment for tire Process to enforce a days upon plaintiff within 20 after served execution, money shall be a writ of a ment summons; (3) a on a service of return suggestee such writ of execution and other suggestee writ of execution shall be made provided by procedure writs as are law. year expiration on of one after forthwith process, final in execution and other such on of the writ. issuance supplementary proceedings and in aid to of a proceedings § judgment, in and in aid W.Va.Code 8. The former version of 48-14-201 process or such final shall be execution other which would have been available Nada Stan- procedure running practice ley with toll tíre of the ten- accordance BCSE to existing by year prescribed period after the issuance of the the laws of State at limitation § remedy sought, subject W.Va.Code 48A-5- 1981 writ execution was the time the (1) following qualifications: A writ of execu- obligor secretary When an ments arrears of the trea- payment support required sury be United States. The bureau for paid by support the terms of an order for child support shall all enforcement take child, obligee necessary or steps the bureau for implement and utilize support may child file an such procedures. enforcement ab- giving sup- stract of the order rise (2001) Similarly, § W.Va.Code 48-18-118 port obligation and an “affidavit of accrued provides that Tax Commissioner support,” setting particulars forth the procedures shall establish for the Bureau for arrearage requesting writ a Support pay- Child Enforcement obtain execution, suggestion9 or suggestee execu- past ment of due support from state tax filing tion.10 The of the abstract and affi- may refunds wherein the Bureau a enforce rise, give law, by operation davit shall support through order a notice to Com- personal property lien an obli- missioner which causes refund of state gor who resides within this state who obligor tax income owed be reduced property owns within this state for over- support the amount overdue owed (Footnotes added.). support. due obligor.11 affidavit, “Upon receipt of the shall the clerk A comparison of traditional definition execution, suggestion issue a sug- writ procedure of and judg- the execution of a gestee § execution[J” 48-14- provisions ment with the for tax indi- offsets 204(a) conclude, therefore, (Supp.2001). We cates to this tax Court that a offset is not an necessarily that an execution involves court process execution does not involve judicial process writ wherein is issued. of the court that results the issuance of a Concerning past the obtainment of due Rather, judicial purely writ. a tax offset is a refunds, support (cid:127) federal tax also action initiated administrative and carried offsets, intercepts known as tax or tax Further, agencies. out executive (2001) provides: Code 48-18-117 dispositive Court does find the cases Virginia Support proposition [West Enforce- cited BCSE for the shall, by legislative ment] commission than may rule actions other executions toll the promulgated pursuant chapter twenty- period limitation W.Va.Code 38-3-18 be- code, seq.] 29A-1-1 [§§ nine-a of this completely et cause cases these are devoid of place procedures necessary any analysis authority sup- effect or citation of support for child port proposition. bureau enforcement such a See Robinson v. payment past to obtain McKinney, due tax overpay- federal refunds from (concluding that mother “the judg- suggestion pro-
9.Under W.Va.Code
38-5-10
the wife is entitled to institute
W.Va.Code,
may
garnishment
[1931],
pro-
*8
ceedings
ment
commence
creditor
under
38-5-10
to
ceedings by filing
suggestion against
a
upon
judgments,
writ of
a
recover
those
need
she
party
judgment
alleges
third
when
ancillary
the
creditor
proceedings
not institute
reduce
to
that:
judgments
the
amount
those
to a sum cer-
tain.
person
judgment
a
is indebted or liable to the
person's possession
in
debtor or has
the
or
(1939),
(2)
§
to
38-5A-1
W.Va.Code
personal property belonging
control
to the
“[tjhe
‘suggestee
term
execution’ shall mean an
debtor,
liability
judgment
which debt or
could
differing
ordinary
execution
from an
execution
due,
enforced,
property
be
when
or which
upon
only
judgment
in that
it is directed
recovered,
could be
when it became returna-
against money due or
become
to the
to
due
ble,
law,
by
judgment
in a
tire
debtor
court
suggestee
judgment
from
therein
debtor
tire
as
liability
property
and which debt or
or
is sub-
set out.”
ject
judgment
to
of fieri
the
creditor's writ
facias[.]
Howell,
11. The
in
at
the
code sections
effect
the time
Syllabus
In
528,
Point 1 of Sauls v.
began
attempted
(1983),
BCSE
tax offsets were W.Va.
309
26
this Court
S.E.2d
held:
Matured,
(1986), concerning
§
unpaid
provided
Code 48A-2-15
the obtain-
for in
installments
refunds,
divorce,
support
ment of
federal tax
child
from
decree of
which decree ordered a
$2,700,
(1986),
concerning
§
husband
to
wife
“in
W.Va.Code 48A-2-16
to
his former
month,
alimony”
per
support
$150
lieu of
at
stand as
obtainment
from State income tax
husband,
judgments against
decretal
refunds.
above,
of limitations
As noted
the BCSE received
by
is
the statute
not barred
$32,796.60
from
Com-
September
Workers’
collecting
support
child
from
pensation
by
award
of income with-
means
May
of 1989 ...
since the
1982 until
§§
holding pursuant to W.Va.Code
48-14-401
process
early
began the collection
mother
withholding requires
et
no-
seq. While such
by
Employer/Source
In
a Notice
him,
alia,
advising
obligor
tice to the
inter
18,
February
1992 and
dated
come
challenge
right
amount of the
arrearages
March
motion to establish
dated
withholding,
withholding
significantly, income
564,
12,1992.”);
568,
Clay Clay,
v.
W.Va.
stayed
withholding
being
is
(1999)
not
while
530,
(stating that “the
system.
W.Va.
contested
process
began
on
appellee
the collection
Au
48-14-405(12)
(“That
(Supp.2001)
§
Code
gust
by filing an
Order/Notiee
withholding
being
while the
contested
Support!,]”
for Child
there
Withhold Income
court,
through
withholding
the income
may
sup
child
appellee
“the
not collect
fore
modified.”).
may
stayed,
may
be
be
but
27,
port
period prior August
for the time
accept
If this Court
the BCSE’s
were
1988.”);
ex
DHHR
rel.
Schwab v.
position
ten-year
period
limitation
554,
Schwab,
W.Va.
only
unpaid
applies
or
arrear-
to uncollected
(1999) (finding
motion
“[t]he
en
ages,
obligor’s
of limitation de-
statute
support payments
force
accrued
withholding
would
fense
income
1998[,]”therefore,
February
“the
was filed
always
arrearag-
fail
due to the fact
only
pay
appellees may
support
enforce
already
es at issue had
been collected
1988.”).
February
ments due after
challenge
withholding
time the
re-
Accordingly,
procedure
we hold that
short,
ten-year
statute of
solved.
Support
for Child
utilized
the Bureau
void in
limitation would be rendered
cases
payment
past
Enforcement to obtain
due
withholding
which the
utilizes income
BCSE
support from
and State tax
Federal
arrearages.
to collect child
Accord-
overpayments
refunds
Sec-
reject
argument
ingly,
on
we
the BCSE’s
Treasury
retary of the
of the United States
issue.
Commissioner,
provided
Tax
the State
The BCSE next contends that Mr.
(2001)
48-18-117
W.Va.
timely
did not
raise the affirmative
(2001),
does
constitute
Code 48-18-118
limitations,
of the statute of
defense
cites
under W.Va.Code
execution
N.,
Dept.
Health
Robert Morris
purpose
tolling
38-3-18
worked or war- to avail himself of the statute limitation presumption Stanley ranted the that Mr. Accordingly, reject defense. we the BCSE’s BCSE, right. According waived his it challenges application the circuit court’s withholding issued its income order to the statute of to Mr. limitation Stan Compensation Division Workers’ on March ley’s support arrearages. copy sent a the order to Stanley at the same time. On March Immunity B. Constitutional BCSE, says received inter- the BCSE/DHHR $32,796.60 cept of from the Workers’ Com- cir BCSE next asserts pensation money Division and disbursed the judgment against cuit court in granting erred Stanley. to Nada This timetable indicates it is constitutionally because immune from that Mr. had little time which suit. it is a raise the time limitation defense before instrumentality established within the West money prof- was received the BCSE and Department Health Human Moreover, Stanley. to Ms. if fered even he (“DHHR”), any money Resources it is prior had raised actual the defense compelled refund to Mr. would above, withholding, withholding as noted directly public come funds. The BCSE stayed pending would not out- have been exception contends that to consti further Therefore, Stanley’s challenge. of Mr. come immunity recognized by tutional this Court prevents do not we believe laches Pittsburgh Elevator v. Bd. Re of the statute of limitation assertion gents, defense. permits alleging suits the State
Moreover, recovery do toup we not believe the limits of State’s liabili prevented ty coverage, applicable Rule Civil Procedure 8 consid insurance is not be *10 Stanley’s Stanley repay of Mr. statute of limitation eration cause Mr. seeks to collect the Stanley’s directly challenge public Mr. in from has defense. to the ment funds and filed withholding response alleging recovery to a pleading come was not a no from the court, liability him pleading against Finally, in circuit as carrier. State’s insurance 68 Elevator, Syllabus Pittsburgh 2 recovery Point
says under Pitts- that which no recov burgh exception applicable “[s]uits is Court held seek Elevator funds, withholding por- allege that ery its action in from state but rather here because Stanley’s Compensation sought limits recovery up tion of is under and to the Mr. Workers’ liability coverage, not tortious. fall award was State’s insurance bar to outside the traditional constitutional agree BCSE that with the We against Subsequently, suits the State.” enjoys immunity suit. constitutional Syllabus Dept. 1 Eggleston Point v. W.Va. VI, § 35 of West According to Article Highways, 189 W.Va. Constitution, Virginia part: “The State (1993),we held: Virginia shall never be defendant 29-12-5(a) W.Va.Code, (1986), provides any equity[.]” law or DHHR court of exception for the State’s constitutional State, agency see is W.Va.Code immunity found Section of Article VI (2003), § is 9-2-la and the BCSE a unit Virginia It of the West Constitution. re- 48-18-101(a) the DHHR.13See W.Va.Code Insur- quires the Board of Risk and State (2002). has that con “[t]he This Court held Management purchase or contract ance immunity of state from suit stitutional requires such insur- for insurance and that agencies.” Syl governmental its extends to policy provide “shall that insurer ance part, labus v. Road Point Stewart State estopped relying shall be barred and (1936). Comm’n, S.E. 117 W.Va. upon immunity of the the constitutional policy sovereign im “[T]he underlies Virginia of West claims State prevent munity is to the diversion of State suits. pur legislatively appropriated monies from Thus, monetary poses. relief is where We conclude the Board sought treasury against the State for which Management a stat Risk and Insurance had
proper legislative appropriation has been utory duty purchase for insur contract made, sovereign immunity raises a bar to coverage provide for all of the ance Hall, suit.” Mellon-Stuart Co. responsibilities.14 DHHR’s activities (1987) (citations S.E.2d Further, responsibility the DHHR has a omitted). and footnote money obligor refund to an collected ex BCSE, however, . agree obligor. We do not with cess of what owed Due Pittsburgh exception to Mr. assertion of the stat Elevator successful judg application of limitation on the execution of immunity constitutional has ute ments, it has previously of this This Court been determined facts case. explained Stanley Bd. Mr. in excess in Parkulo v. West DHHR collected from Therefore, Probation, 507 of owed. what he overpayment Board of Risk and refund of entitled authorized, Management pursu- support arrearages up under Insurance 29-12-5(a) liability cover purchase ant limits of the State’s insurance to W.Va.Code providing coverage age for loss on of the DHHR’s activi insurance all State account responsibilities.15 “property, responsibilities.” In activities and ties emphasize Although in his brief to this 15.We that the issue of constitutional stated understanding when, here, immunity only is his that the BCSE Court that it arises BCSE private corporation, operated is responds obligee prior transfers the withheld funds only County Kanawha office is obligor's challenge of the with successful operated by private company under which is holding, and the BCSE is then unable to retrieve State. contract to the improperly the obli- transferred funds from possession gee. When the BCSE is still to the fact that the Board of Risk Due funds, only improperly return withheld need Management statutory had a un- Insurance obligor. When can the funds to the the BCSE 29-12-5(a), Eggle- der as stated in improperly withheld funds from the retrieve ston, purchase or for all contract insurance obligee, it do so in order to return die should responsibilities, DHHR’s this Court wishes obligor. funds to the cover- to make clear that the absence of age may deprive used DHHR to not be appellee overpayment. refund of his *11 asserts, however, Legisla- that it It is BCSE clear the above that the Stanley repayment to Mr. for liable ture has manifested an intent the BCSE merely repay it is which improperly funds because a collection funds were withheld obligor’s acting equally obli from an agency as a conduit between income. It clear Therefore, gor obligee. recognized and it acts BCSE has it when has orders, duty. Moreover, good upon simple in faith valid it is not liable fairness dic- government entity tates that when a repayment obligor to an an over exercis- when power portion es its considerable to payment Again, disagree. obtain results. we law, of an obligor’s through income force it Legislature provided procedures has escape all responsibility cannot when its ac- obligors whereby they can to contest income overpayment tions result the obli- withholding, see W.Va.Code 48-14- gor. Accordingly, conclude that we 405(8) (11) (Supp.2001), and it also has di- — repayment to an obligor BCSE liable 48-14-407(b) (2002),16 rected W.Va.Code improperly when funds from withholds Virginia Support “[t]he [West Enforce- or her income. . shall, by ment] commission administrative rule, procedures promptly establish re- Duty C. The BCSE’s Breach of funding obligors which amounts been have Finally, the contends that improperly withheld[J” finding circuit court erred Policy Child Advocate Office and Procedural pro BCSE “breached its Manual, 08010.20.20, Section No- effective intercept proper ceeds of the entire incorporated which is vember BCSE, persons.” According to the the noti Rule, Legislative as a reference fication withholding of income which it issued in March 1997 with case, was accord the child withholding
In an income if the support obligation parties’ ordered in the overpayment to the caretaker resulted undisputed divorce decree account from a situation in- where the source of time, ing explains BCSE. At that come withheld more than the allowable protested had not amount for rea- the month whatever withholding based on the statute of limita improperly son amount was withheld tion, and he would not do so for another income, obligor’s from the Advo- [Child Therefore, eleven months. at the time arrange cate promptly Office] must re- withholding only prop was the fund improperly the amount that was with- person money er to whom the sum was held. owed. money paid If too much was to the care- order, In its the circuit court found: situation, taker as a of such a result overpayment must be recovered from the BCSE did not their [T]he heed OSCAR (See program17 warning possible caretaker. 8010.20.05 laches and 8010.20.10). However, the prior sending [Child Advocate of limitation claim statute money Office] will not wait for Stanley, merely the caretaker to Nada dis- repay obligor, go paying regarded warnings, apparently before but will did money obligor disposition ahead and refund the final filings seek of the 1993 (Emphasis prior distributing compen- when the error is discovered. the workers added.). intercepted proceeds. sation intercept See also former W.Va.Code 48A-5-3 CAR enables caseworkers to federal refunds, the time was effect at of the income compensation, tax state workers' withholding in this case. benefits; unemployment place prop- liens on erty; notify reporting agencies credit of delin- highly complex Sup- "OSCAR” is the Online quencies; and sue to recover assets that are Reporting system port Collection and used person paying transferred another avoid cases, child staff to create locate workers support. https://www.nas- paternity parents, sup- absent establish cio.org/awards/1998awards/In- obligations, port pay- collect and distribute ter/westvirginia.cfm. system May implemented ments. The federally certified June 1996. OS- *12 however, arrearage, of of the the BCSE trans- the bailee all
7.
BCSE became
the
amount of
Workers’
ferred the entire
by their
intercepted funds and
own
the
Compensation intercept
Stanley.18
Nada
to
... had the re-
policy manual directive
addition,
a copy
is
In
contained
the record
to it
funds
sponsibility to see
that the
were
update”
“legal/policy
memorandum
of a 1995
persons
to
properly
the
entitled
delivered
by
employees
to
the As-
sent
child advocate
destination,
proper
as their
funds
of
sistant
Counsel of the Office
the
General
(DHHR)
duty
its
breached
and the BCSE
employees
that
informs
Child Advocate19
pay
intercept
of
proceeds
the entire
the
10-year
of limitations
that “there is a
statute
persons.
proper
to the
judgments.
If
on
the credi-
enforcement
perceived
equitable
8.
BCSE
judgment,
tor
...
doesn’t enforce the
argument regarding the statute of limita-
by getting
a new writ of execution
renew
tions, however,
person would
a reasonable
years,
Finally,
original
every 10
the
dies.”
the circumstances of
have known under
divorce
in this
was entered
decree
case
of limitations as
this case that the statute
intercept
Mr.
and
apply to
law would and does
well
other
Compensation award occurred in
Workers’
arrearage
claims of the Plain-
bar
Therefore,
twenty years
almost
later.
judgment
years
tif^Respondent
over
employees
that
we
BCSE
were
conclude
old,
arrearages
over 10
uncollected
limitation
aware of
statute of
on
added.).
(Footnote
years old.
Further,
judgments.
the execution
that
do
believe
circuit
We
entry of
passage of
between the
time
finding that
breach
court erred in
the BCSE
original
income with-
divorce decree
duty
proceeds
proper
its
to the
ed
holding
put
at issue
the BCSE
notice
court,
by
circuit
persons. As noted
potential
limitations
time
on the collection of
petition
a
a
Stanley
notice,
1993 Mr.
for deter
Finally, despite this
arrearage.20
mination of arrears but
order
entered
duty
to make
the BCSE breached
further
Despite
proceedings.
simply
inquiry,
as a result of these
the withheld
transferred
Stanley.
concerning
funds to
questions
the amount
Nada
unresolved
brief,
BCSE
that counsel
20.Another
issue raised
the BCSE that the
In its
stales
letter,
9, 1998,
requested guidance
granted
Stanley,
April
improperly
order
Mr.
Family
regarding
security
failure
Stanley
Master
Law
retroactive credit for social
ben-
Stanley to
counsel for Mr.
endorse
return
efits
his
as far back as
received
children
8, 1994,
proposed
order from December
February
We are unable to find in the
proposed
hearing. According to the
record, however,
timely
that
filed ex-
$61,322.94
order
recommended
ceptions
April
to the
order.
Stanley,
but
the order remains
Mr.
(1993),
in effect
to W.Va.Code 48A-4-17
at the
outstanding.
48A-4-
We note W.Va.Code
time, “[fjailure
timely
petition
file the
shall
time,
(1993),
required
in effect at the
exceptions,
peti-
constitute waiver of
unless
family law
to submit a recommended
master
tioner, prior
expiration
ten-day
of the
days
court within ten
follow-
order
the circuit
period,
granted
moves for and
an extension of
ing the
evidence. In State ex rel. Coats v.
close of
Syllabus
time
circuit
In
Point 1
from the
court.”
Means,
(1992),
W.Va.
IV. statutory duty purchase had a or contract coverage provide for insurance to for all of CONCLUSION responsibilities.” the DHHR’s activities above, April For set forth the reasons opinion The states further in footnote that the circuit af- order of court is “this that Court wishes make clear firmed. may coverage absence of such not be deprive appellee DHHR to used Affirmed. overpayment.” sweep- a refund of This ing concurs, dissents, pronouncement by majority opinion part, Justice DAVIS opened every against has door claim part, right for and reserves the to file a separate opinion. agencies brought state be the circuit is, majority courts of this state. That
DAVIS, J., dissenting
part:
opinion
proposition
for
stands
(Filed
2003)
Dec.
Management
Board of Risk and Insurance
(hereinafter
“BRIM”)
referred to as
must
majority opinion
The
has
determined
liability
coverage
provide
every
for
insurance
jurisdiction
impose
the circuit court had
a
activity
responsibility that state
entities
monetary
against
Department
Further, to
that liabil-
undertake.
the extent
Resources,
for
Health and Human
Bureau
ity
activity
(hereinafter
coverage
insurance
for an
or re-
Support
Child
Enforcement
re-
sponsibility
entity
provided,
state
DHHR”),
though
ferred
as “the
even
may
party
litigate
a
still
the ease
circuit
liability
DHHR did not
cover-
have
insurance
judgment.
pro-
a
This is a
court and obtain
age
express
for the claim and there was no
misguided
unsupported
statutory
immunity by
foundly
ruling
sovereign
waiver of
legislature.
majority’s
precedent
authority.
As
result of
or other
clear,
proceduraliy
applicable
I
of a refund DHHR is
To be
understand that the
issue
regulation requires
reim-
taxpayer seeking
statute and
DHHR to
different from that of a
refund
obligor
burse an
for
monies
legislature
from the Tax Commissioner. The
has
However,
improperly
were
taken.
neither
expressly provided for the
a tax refund to
issue of
obligor
expressly permit
statute
an
nor the rule
court,
litigated in
be
circuit
after administrative
to file an action in circuit court to
obtain
proceedings.
See W. Va.Code
11-10A-19
express authority
refund.
in the
Without such
or
(2002)
Houyoux
(Repl.Vol.2003). See also
liability
coverage,
absence of
insurance
the doc-
Paige,
immunity
obligor
sovereign
prevents
trine of
an
refund);
Assoc.,
(claim
Paige,
Doran &
Inc. v.
maintaining
from
against
action in
circuit
(1995) (same).
S.E.2d 757
money.
I
DHHR
dis-
to recover
As
However,
statutory
regulatory
express
dissent,
my
body
cuss
the exclusive
authority
litigating
refund claim
exists
remedy
obligor is to
in the
for the
seek refund
DHHR circuit court.
Court of Claims.
29-12-5(a)
(1986),
Va.Code,
pro-
rely upon
opinion purports to
W.
majority
High-
exception
constitu-
Virginia Dep’t
vides
the State’s
Eggleston v. West
immunity
found in Section
tional
Provide Coverage Insurance majority opinion has that for found BRIM Every Activity Responsibility State and liability “must” obtained coverage insurance for all responsibilities activities and of all authority provide for BRIM to insur- agencies. state agencies ance state set out in W. Majority Opinion C. Under the No Claim statute, Va.Code 29-12-5. Under this Against a Agency State Need Ever Be “general supervision BRIM has and control in the Filed Court Claims of all property, over insurance of state ac- responsibilities, ac- including case, tivities Prior to the decision in the instant thereof; quisition and cancellation detevmi- this had agency Court held that if a state did nation amount kind ... coverage liability coverage not have insurance an of matters, any and injury it, all factors and allegedly consid- or harm committed an entering ... coverage erations into all against agency action could not be main property, responsi- such state activities and tained in the circuit of this courts state. Cf. 29-12-5(a) 2, (emphasis Syl. pt. Pittsburgh bilities.” W.Va.Code Virgi Elevator v. West added). Clearly language Regents, 743, this under nia Bd. 172 W.Va. 310 (1983) (“Suits legislature statute the has it man- S.E.2d 675 which seek no re datory provide liability funds, that BRIM covery insurance allege from state but rather coverage every activity respon- recovery state sought up under this, sibility. authority BRIM has liability to do limits of the State’s insurance cover is, required is not age, but it to do so. That fall outside the traditional constitutional State.”). type coverage, any, However, against determination if bar to suits agency discretionary injured party that an obtains is a an could maintain action in for BRIM. against agency. matter of Claims Court the state Parole, 161, 180, Subsequent Eggleston to the decision in bation and 199 W.Va. 483 specifically 507, (1996) (“There Court remanded several for a only cases S.E.2d 526 remains agency had determination of whether state question provisions of whether the actual of such liability coverage. Jeffrey insurance See West v. policy operation .. . cover of the Parole 615, 609, Dep't of Pub. Virginia Safety, 198 W.Va. develop We Board.... remand to record on (1996) ("If 482 S.E.2d procured 232 State has issue[.]”). coverage indicating coverage, insurance public Appel doctrine serves as bar to the 29-12-5(a) language provide lant’s suit. If the insurance State’s does by Attorney General was construed in 1963 is coverage, may proceed, liability the action language the same in the exists statute to- only by will be limited coverage.”); the limits of insurance day. Virginia Parkulo v. West Pro- Bd. of McCrossin, every activity responsibility that Syl. Inc. v. pt. G.M.
See Moreover, majority’s Regents, 177 355 state undertakes. Virginia W.Va. Bd. of (1987) ruling completely fails understand the (“Application to S.E.2d taxpayers if BRIM not maintain costs to does remedy to a available claims the exclusive liability coverage every activity entity, insurance chargeable sophisticated commercial responsibility im- state undertakes. knowledge sovereign with the rule chooses, nevertheless, con- munity, I foregoing, In view the dissent. agency.”). tract with a state recently Leg- that “[t]he This noted Court has the Court of Claims
islature established Legislature’s delegated it the law and investigate against
power claims certain may prosecuted in the not be
the State sovereign im- courts because State’s S.E.2d 645 McLaughlin munity.” ex v. West rel. Virginia, Plaintiff STATE West Claims, Court of below, Appellee, (2001) curiam) (per S.E.2d omitted). (footnotes rel. also State ex C v. Gainer, Equip. D & Co. TAYLOR, Defendant Edwin Mack (“Any monetary Appellant. below, agency which is claims the state *16 jurisdiction immune from suit within the No. 31405. Claims.”).4 The the Court of Court Appeals Supreme Court ap- authorized to consider and Claims “is Virginia. against prove claims the State otherwise State, regular cognizable in courts of 14, 2004. Submitted: Jan. Legisla- and to an award recommend Feb. 2004. Filed: Elevator, Pittsburgh at 754 ture.” Albright Dissenting Opinion of at 686 7.5 Justice n. n. 24, 20034. March decision, majority’s litigant if a Under the any entity, Davis, joined has a state and Dissenting Opinion claim of Justice liability coverage Maynard there insurance Feb. Chief Justice claim, litigant not have to file an does 2004. majority action in the Court Claims. The liability
opinion that lack has determined coverage litigating is not a bar
insurance agency against a in circuit
an action state
court, duty to statutory BRIM has a because coverage.
provide such majority’s ruling completely fails taxpayers if has
recognize costs BRIM liability coverage for insurance maintain part any State or W. counterclaim on the Va.Code 14-2-13 Pursuant agency. jurisdiction (Repl.Vol.2003) the of the Court of state status, both, legal equitable or or 3.The to: Claims extends any claim the head of a referred to demands, liquidated and un- 1. Claims agency advisory state for an determination. delicto, against liquidated, and ex ex contractu 14-2-14(5) Legisla- agencies, W. 5. Under Va.Code or of its which sovereign has from the of Claims the should ture withheld Court State as a commonwealth "any pay. respect good discharge power to claim ... equity [w]ith consider conscience demands, may liquidated proceeding which a be maintained and un- Claims delicto, State, by against the of the claimant liquidated, ex behalf ex contractu and may in the courts of the State.” in the nature of setoff be asserted