K.W. v. C.W. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
K.W.,
Respondent Below, Petitioner FILED
October 4, 2013
vs) No. 12-1197 (Boone County 03-D-289) released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
C.W., OF WEST VIRGINIA
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner K.W., 1 appearing pro se, appeals the order of the Circuit Court of Boone
County, entered September 17, 2012, that denied his appeal of an order of the Family Court of
Boone County, entered July 23, 2012. Respondent C.W., by counsel Maureen Conley, filed a
response.2 Respondent Bureau of Child Support Enforcement (“BCSE”), by counsel Kimberly D.
Bentley, also filed a response. Petitioner filed a reply to each response.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The parties are divorced. Subsequent to their divorce, the parties’ minor son was adopted
by petitioner’s parents on April 16, 2008, and the parties’ minor daughter passed away on February
1, 2009. Petitioner owed respondent child support for the period prior to the son’s adoption and the
daughter’s death.
In an order entered May 18, 2011, the family court granted respondent a judgment for past
due child support in the amount of $575 from April of 2004 through November of 2007 and in the
amount of $888.95 from December 1, 2007, to February 1, 2009. The family court also found that
the funeral expenses associated with the minor daughter totaled $7,044.44 and that the child’s
grave cost $2,000. The family court ordered that petitioner was responsible for 83% of the funeral
expenses and 83% of the cost of the grave, and that respondent was responsible for 17% of the
1
Because this is a domestic relations case, we protect the identity of the parties. See State
ex rel. West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d
181, 182 n.1 (1987).
2
Respondent also filed a motion to dismiss petitioner’s appeal for failure to address issues
from the last appealable order. Petitioner responded to the motion. However, because this Court is
able to dispose of the appeal on its merits, see infra, we deny the motion as moot.
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funeral expenses and 17% of the cost of the grave. That division of fiscal responsibility was based
on the percentages found on the child support calculation sheet attached to a modification order
entered by the family court on January 28, 2008. Petitioner appealed the family court’s May 18,
2012 order to the circuit court which denied his appeal on June 1, 2011. Petitioner did not appeal
the circuit court’s denial of his appeal to this Court.
Petitioner filed a petition for modification to end his child support obligation on February
28, 2012. Petitioner indicated that the family court erred in finding he owed child support for the
periods from April of 2004 through November of 2007 and from December 1, 2007, to February 1,
2009. Petitioner alleged that he had in fact overpaid his child support obligation. Respondent filed
a response disputing that petitioner had paid his total child support obligation and filed a
counter-petition that petitioner failed to pay his share of their daughter’s funeral expenses and a
previous judgment against him with regard to retirement benefits. After a hearing on April 4, 2012,
the family court denied the petition for modification and ordered that respondent’s
counter-petition be held in abeyance until November of 2012 because petitioner was previously
given eighteen months to pay respondent the retirement benefits he owed her. Petitioner did not
appeal the June 21, 2012 order the family court entered as a result of the April 4, 2012 hearing.3
After the April 4, 2012 hearing but before the entry of the June 21, 2012 order, the BCSE
filed a motion requesting the family court to partially reconsider its prior orders to give petitioner
credit for all known child support payments regarding the minor children. As a result of the
BCSE’s new accounting, petitioner was ultimately accredited with an overpayment in the amount
of $628.05.
The family court conducted a hearing on the BCSE’s motion for reconsideration on June
19, 2012. Petitioner’s counsel informed the family court that they had no objection to the new
accounting stating that “[w]e think this accounting is correct.” Respondent also had no objection to
the new accounting.
With regard to any overpayment that might be due to petitioner, the family court requested
that petitioner’s counsel consult with petitioner about whether the BCSE could direct the
overpayment to the funeral home to be applied to the expenses associated with the parties’
deceased daughter. After consulting with his client during a recess, petitioner’s counsel informed
the family court that “[petitioner] is willing to have an order entered directing any overpayment
amounts be forwarded to [the funeral home].” Later in the June 19, 2012 hearing, petitioner’s
counsel stated a second time that “[petitioner] said send it to [the funeral home].”
Accordingly, in its order entered July 23, 2012, the family court directed that any
overpayment due to petitioner be sent to the funeral home. The family court also accepted the
BCSE’s new accounting noting that “[n]either party has any objections.” Therefore, the family
court granted the BCSE’s motion to partially reconsider its prior orders and directed that petitioner
be given credit for all known child support payments regarding the minor children.
3
Because the order was entered on June 21, 2012, petitioner’s time to appeal the order
expired on July 23, 2012. See W.Va. Code § 51-2A-11(a).
2
On August 21, 2012, petitioner filed a pro se appeal of the family court’s July 23, 2012
order to the circuit court. The circuit court denied the appeal on September 17, 2013, finding that
the family court did not abuse its discretion and that the family court’s findings of fact were not
clearly erroneous. Petitioner now appeals the circuit court’s September 17, 2013 order.
In Syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), we set forth the
standard of review:
In reviewing a final order entered by a circuit court judge upon a
review of, or upon a refusal to review, a final order of a family court
judge, we review the findings of fact made by the family court judge
under the clearly erroneous standard, and the application of law to
the facts under an abuse of discretion standard. We review questions
of law de novo.
On appeal, petitioner asserts that the BCSE’s new accounting was not accurate and that he
still has not been given full credit for child support payments he made. Respondent argues that the
family court’s July 23, 2012 order benefits petitioner because the order gives him credit for
additional payments. The BCSE notes that the July 23, 2012 order credits petitioner for payments
made, but does not address the amount of past child support that was due because the amount had
been established by prior orders not appealed to this Court.
We find that the BCSE is correct that petitioner can no longer dispute the amount of past
child support that was due because he did not appeal the relevant orders. In Syllabus Point 1 of
Maples v. West Virginia Department of Commerce, Division of Parks and Recreation, 197 W.Va.
318, 475 S.E.2d 410 (1996), this Court held that “[a] litigant may not silently acquiesce to an
alleged error, or actively contribute to such error, and then raise that error as a reason for reversal
on appeal.” At the June 19, 2012 hearing, not only did petitioner’s counsel state that petitioner did
not object to the BSCE’s new accounting, but counsel affirmatively indicated that “[w]e think this
accounting is correct.” Therefore, this Court concludes that petitioner cannot now dispute on
appeal the amount of past due child support.
Syllabus Point 1 of Maples also resolves whether the family court properly directed that
any overpayment due to petitioner be sent to the funeral home. Petitioner’s counsel informed the
family court that “[petitioner] is willing to have an order entered directing any overpayment
amounts be forwarded to [the funeral home].” Petitioner asserts that he agreed only because he
thought that the family court would not allow the overpayment to go to him. However, neither the
transcript nor the video recording of the June 19, 2012 hearing indicate that petitioner agreed under
protest to send the overpayment to the funeral home. In fact, later in the hearing, petitioner’s
counsel stated a second time that “[petitioner] said send it to [the funeral home].” Therefore, this
Court concludes that petitioner cannot raise this issue on appeal.
Finally, petitioner contends that the family court abused its discretion in determining that
he pay 83% of the funeral and grave expenses associated with his daughter. However, because
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petitioner did not appeal the May 18, 2012 order to this Court, he may not dispute the division of
responsibility for the expenses in the instant appeal. See Noland v. Virginia Insurance Reciprocal,
224 W.Va. 372, 378, 686 S.E.2d 23, 29 (2009) (“Although our doctrine of law of the case
generally refers to issues that have previously been reviewed at the appellate level, the doctrine is
equally applicable to issues that have been fully litigated in the [trial] court and as to which no
timely appeal has been made.”) (Internal quotations and citations omitted.) Furthermore, even if
petitioner could raise this issue, both respondent and the BCSE correctly note that the division of
responsibility is based on the percentages found on the child support calculation sheet attached to a
modification order entered by the family court on January 28, 2008. As to petitioner’s argument
that the family court had earlier determined in a June 9, 2009 order that he had only a moral
obligation to assist in paying the funeral expenses, the Court notes that nothing in the 2009 order
indicates that it was a final order and, therefore, the family court had plenary authority to
reconsider its decision in the May 18, 2012 order. See Syl. Pt. 2, in part, Taylor v. Elkins Home
Show, Inc., 210 W.Va. 612, 558 S.E.2d 611 (2001) (“[A] trial court has plenary power to
reconsider, revise, alter, or amend an interlocutory order[.]”). After careful consideration, this
Court concludes that petitioner’s appeal is wholly without merit.
For the foregoing reasons, we find no error in the decision of the Circuit Court of Boone
County. We affirm the circuit court’s September 17, 2012 order that denied petitioner’s appeal of
the July 23, 2012 order of the Family Court of Boone County.
Affirmed.
ISSUED: October 4, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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