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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1999 Term
STATE OF WEST VIRGINIA, EX REL.,
DEPARTMENT OF HEALTH AND HUMAN
RESOURCES, BY DEBRA KAY SCHWAB,
INDIVIDUALLY, AND AS HER SUBROGEE,
Plaintiff below, Appellee,
JEFFREY WILLIAM SCHWAB,
Defendant below, Appellant.
Appeal from the Circuit Court of Harrison County
Hon. Thomas A. Bedell
Civil Action No. 79-C-756-2
REVERSED AND REMANDED
Submitted: September 22, 1999
Filed: December 13, 1999
D. J. Romino II, Esq.
Scot S. Dieringer, Esq.
Clarksburg, West Virginia
Clarksburg, West Virginia
Attorney for Department of
Attorney for Appellant
Health and Human Resources
The Opinion of the Court was delivered PER CURIAM.
JUDGE FRED RISOVICH, II, sitting by special assignment.
JUSTICE SCOTT did not participate
SYLLABUS BY THE COURT
1. In reviewing challenges to findings made by a family law master that
were also 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.
Syllabus Point 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
2. Although courts should not set aside default judgments or dismissals
without good cause, it is the policy of the law to favor the trial of all cases on their merits.
Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).
3. The Rules of Civil Procedure pertaining to the setting aside of default
judgments should be liberally construed in order to provide the relief from onerous
consequences of default judgments. Syllabus Point 2, Parsons v. McCoy, 157 W.Va. 183,
202 S.E.2d 632 (1973).
This case involves an appeal of an August 18, 1998 order of the Circuit Court
of Harrison County. The appellant, Jeffrey Schwab (Schwab), seeks reversal of the circuit
court's order that requires him to pay back child support accrued over a period of
approximately 13 years. Following our review of the record and briefs, we reverse.
In October of 1973, Schwab married Debra Kay Schwab. In December of
1974, Debra Kay Schwab gave birth to the couple's only child. The parties were divorced
in December of 1979. Pursuant to the divorce decree, Schwab was ordered to pay $100.00
per month for child support.
Schwab left the State of West Virginia, eventually taking up residence in
California, and had no contact with Debra Kay Schwab for approximately 19 years. No child
support was paid.
Following her separation from Schwab, Debra Kay Schwab had more children.
In February of 1998, Debra Kay Schwab sought financial assistance from the West Virginia
Department of Health and Human Resources (DHHR). When the DHHR was made aware
of the back child support owed to Debra Kay Schwab by the appellant, the DHHR filed a
Motion for Judgment for Posting a Bond to Guarantee Payment of Overdue Support and for
a Status Conference Regarding Compliance with Support Order in the 1979 divorce case
between Debra Kay Schwab and Jeffery William Schwab.
A copy of the motion was mailed to Schwab at a California address. Schwab
contends that the address was incorrect. It is not clear from the record whether Schwab did
receive notice of the motion, but Schwab eventually did learn of the motion and contacted
an attorney in West Virginia to represent him. Schwab's attorney contacted the DHHR
attorney and discussed a continuance of the scheduled hearing on the motion. The attorney
for DHHR indicated he would not object to a continuance. However, no motion for a
continuance was ever filed, and the matter was heard before the family law master with
neither Schwab nor his attorney present, even after the DHHR attorney advised the law
master that he had agreed to a continuance with Schwab's attorney.
The family law master heard the testimony of Debra Kay Schwab and
examined the 1979 divorce order. Following a review of the evidence, the family law master
filed a recommended decretal judgment against Schwab for $34,697.08. The circuit court
approved the recommended order and entered the same on August 18, 1998.
Upon receiving the family law master's recommended order, Schwab filed a
petition for review before the circuit court. In his petition Schwab raised issues relating to,
inter alia, procedural due process resulting from the law master's refusal to grant a
continuance when the law master was advised by the DHHR attorney that he had agreed to
a continuance with counsel for Schwab. The appellant also raised the defense of statute of
limitations to at least part of the judgment. Schwab's petition for review was denied. The
matter was then appealed to this Court.
The standard of review for orders from a family law master that are adopted
by the circuit court was established in Syllabus Point 1, Burnside v. Burnside, 194 W.Va.
263, 460 S.E.2d 264 (1995), where we stated:
In reviewing challenges to findings made by a family law
master that were also 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.
Schwab contends on appeal that the circuit court erred in failing to grant his
petition for review. Schwab asserts that he did not receive proper notice of the hearing and
that the applicable statute of limitations prevents judgment from being entered 10 years after
the child support became due.
Essentially a default judgement was entered against Schwab in this matter.
This Court has stated that [a]lthough courts should not set aside default judgments or
dismissals without good cause, it is the policy of the law to favor the trial of all cases on their
merits. Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).
A default judgment may be set aside under Rule 60(b) of the West Virginia
Rules of Civil Procedure which provides, in pertinent part, [o]n motion and upon such terms
as are just, the court may relieve a party or his legal representative from a final judgment, or
proceeding for the following reasons: . . . (4) the judgment is void; . . . (6) any other reason
justifying relief from the operation of the judgment.
We have admonished courts that
[a] court, in the exercise of discretion given it by the remedial
provisions of Rule 60(b), W.Va. R.C.P., should recognize that
the rule is to be liberally construed for the purpose of
accomplishing justice and that it was designed to facilitate the
desirable legal objective that cases are to be decided on the
Syllabus Point 6, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). We have further
stated that [t]he Rules of Civil Procedure pertaining to the setting aside of default judgments
should be liberally construed in order to provide the relief from onerous consequences of
default judgments. Syllabus Point 2, Parsons v. McCoy, 157 W.Va. 183, 202 S.E.2d 632
We must apply these principles of law to the facts of the case before us. In the
instant case, there is some uncertainty about whether the appellees obtained proper service
on the appellant. There is also some question as to whether the appellant's procedural due
process rights were violated by the law master in declining to continue the original hearing
when advised of the continuance agreement by counsel. We therefore believe that the
default decretal judgment should be set aside.
Additionally, the appellant contends that even if he were properly before the
lower court, the claim for at least part of the back support is barred by the statute of
limitations. We have held that the 10-year statute of limitation set forth in W.Va. Code, 38-3-
18  is applicable to past child support payments. See Syllabus Point 6, Robinson v.
McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993). The appellees are seeking child support
payments from 1979 to 1992. The motion to enforce the accrued child support payments was
filed in February 1998. Under Robinson, the appellees may only enforce support payments
due after February 1988. The DHHR is statutorily barred from collecting any unpaid child
support in this matter prior to February 1988.III.
We find that the circuit court abused its discretion in denying Schwab's
For the forgoing reasons, the decision of the Circuit Court of Harrison County
is reversed, and this matter remanded for further proceedings consistent with this opinion.