Beverly S. Selby, Esq.
J. Steager, Esq.
Charleston, West Virginia South Charleston, West Virginia
Attorney for the Appellant Attorney for the Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
On appeal, Nancy Jo Burnett
(appellant) appeals an order of the Boone County Circuit Court dated
September 21, 1999. The circuit court held that it lacked in personam
jurisdiction over Clarence Burnett (appellee), a resident of Arkansas,
and refused to enforce an order entered by a West Virginia court in 1983 requiring
the appellee to pay child support to the appellant. The 1983 order was entered
when the appellee submitted to the West Virginia court's jurisdiction as part
of a separate maintenance action.See footnote
For reasons explained in this opinion, we reverse the decision of the circuit court and remand this matter for further proceedings.
Between 1969 and 1981, the appellee
was stationed at various military bases throughout the United States and Europe.
The appellant apparently accompanied appellee on his military assignments. In
1971 the parties had a child.
In 1981, the parties lived in Heidelberg, Germany. Due to difficulties in their relationship, the parties separated, and on July 9, 1981, the appellant and the parties' child returned to Boone County, West Virginia.
On April 29, 1982, the appellant filed a petition for separate maintenanceSee footnote 2 2 in the Circuit Court of Boone County, West Virginia. The appellee resisted the action at first, but eventually signed a waiver of service and submitted to the jurisdiction of the court. The appellee contemporaneously filed a waiver of his rights under the Soldiers' and Sailors' Civil Relief Act.
The parties entered into a separation
agreement on November 12, 1983. The agreement provided that the appellee was to
pay to the appellant $750.00 per month for child support and alimony until
the child reaches the age of eighteen.See
footnote 3 3
By order dated December 19, 1983, the judge of the Circuit Court of Boone County granted separate maintenance to the appellant, and incorporated in the order the written agreement entered into by the parties.See footnote 4 4
On June 29, 1984, the appellant filed a pro se action for divorce in West Virginia, and served the appellee, who then resided in Arkansas, by certified mail. The return receipt was received and filed by the Boone County Circuit Clerk.
The appellee next commenced divorce proceedings in Ashley County, Arkansas, on November 21, 1984, and served the appellant by publication.
On December 10, 1984, for reasons that are unclear, the appellant filed a second action for divorce in West Virginia, this time with the assistance of an attorney. This time the appellee was served by publication.
The Arkansas court, for reasons that are not apparent to this Court, determined that it had both subject matter jurisdiction as well as personal jurisdiction over both parties.
At the time the divorce proceeding in Arkansas was commenced, the appellant
was not a resident of Arkansas, was not served in Arkansas, and did not submit
to the jurisdiction of the Arkansas court. Nevertheless, by order dated January
21, 1985, the Arkansas court granted a divorce and awarded the appellant custody
of the party's child. The child was in West Virginia with the appellant at this
time, and had never lived in Arkansas with the appellee. The court did not award
alimony or child support.
Just days before the Arkansas court entered its order, the West Virginia court determined that it had subject matter jurisdiction over the case, but found that it did not have personal jurisdiction over the appellee. The West Virginia court order dated January 18, 1985 granted a divorce to the parties, and also awarded custody of the minor child to the appellant. The court attached to the divorce order both the written separation agreement and the order for separate maintenance from the 1983 separate maintenance action.See footnote 5 5
Contemporaneous with the filing for a divorce in December 1984, the appellant initiated a petition for support under the Uniform Reciprocal Enforcement of Support Act (URESA)See footnote 6 6 in West Virginia. In 1984, both Arkansas and West Virginia had substantially similar statutes providing for URESA.
Pursuant to the URESA petition,
a hearing was held in Arkansas on June 9, 1986, with the appellant appearing through
the local Arkansas prosecuting attorney. By order dated June 9, 1986, the Arkansas
court ordered the appellee to make child support payments of $75.00 per month.
This was in addition to $150.00 the appellee was then paying under garnishment
of his military retirement for support arrearages.See
footnote 7 7 The Arkansas order did not identify the amount of
arrearages, or under what judgment the arrearages were being withheld.
Nothing else occurred in this matter until February 9, 1995, when the West Virginia Child Advocate Office (now Child Support Services) began a wage withholding proceeding in West Virginia to garnish the appellee's military retirement pay for additional arrearages. The Department of Defense honored the garnishment request.
To stop the garnishment of his wages, the appellee, on March 15, 1995, obtained an ex parte order from an Arkansas court requiring the Department of Defense to cease any further garnishment actions. The Arkansas court held that the appellee had satisfied his support obligation under the 1986 URESA order. The Department of Defense Finance and Accounting Service declined to honor the Arkansas order, finding that the URESA order had only enforced part of the West Virginia support obligation.
The appellee then filed, in Boone County, West Virginia, a Motion to Dismiss the wage withholding (military wage garnishment) action. On August 19, 1996, a hearing was held before a family law master on this motion. The Notice of Hearing to the appellant was sent to the wrong address, and she did not appear for the hearing.
The family law master determined that Child Support Services had exceeded its power in garnishing the appellee's retirement pay. The family law master recommended that the garnishment cease and that no further action be taken to collect arrearages allegedly owed by the appellee.
After learning of the hearing, the appellant, on January 21, 1997, filed a Petition for Review with the Circuit Court of Boone County. Hearings were held on March 3, April 14, and August 23, 1999. No testimony was taken. Rather, legal arguments were made concerning the circuit court's jurisdiction over the appellee during the West Virginia divorce proceeding filed in 1984.
By order dated September 21, 1999, the Circuit Court of Boone County determined that the court had lacked in personam jurisdiction over the appellee in 1984, and, therefore, the court could not have properly rendered any decision regarding the rights of the appellee that were to his detriment -- including the imposition of any child support. The court ordered that the Child Support Services remove any wage withholding against the appellee and cease any future attempt at collections. The circuit court remanded the matter to the family law master for a determination of the exact amount of money paid by the appellee to determine if the appellee had paid in excess of what he owed.
The appellant now appeals the circuit court's September 21, 1999 order.
Conversely, the appellee argues
that the West Virginia divorce decree terminates a spouse's right to separate
maintenance and support.
We have held that [a] divorce decree, under the laws of West Virginia, terminates the right of a wife to separate maintenance and support. Syllabus Point 2, Brady, supra. This rule was established because generally the property rights granted in an action for maintenance will be addressed in a divorce action. However, in the case before us, the West Virginia court in January 1985, ruling on the petition for divorce, determined that the court could not grant alimony or child support because it did not have in personam jurisdiction over the appellee. The court did, however, attach both the 1983 separation agreement and the 1983 order for separate maintenance to the divorce decree.
In In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978), we discussed the importance of certain words used in divorce orders and property settlements, including the word attached. We stated that parties in domestic relations cases may agree to anything in their property settlement agreement, as long as it is approved by the circuit court. Hereford, 162 W.Va. at 487, 250 S.E.2d at 51. We stated that parties could specifically contract out of any continuing judicial supervision of their relationship by the circuit court[.] Id. We additionally held that [i]f it appears to the court that the terms are fair and reasonable [the court] may approve them, ratify them or merge them, and by whatever words [the court] uses they shall become part of the decree and binding on everyone including the court. Hereford, 162 W.Va. at 487, 250 S.E.2d at 51-52. Finally, we stated:
[I]n the absence of a specific provision to the contrary in a property settlement agreement appended to, made a part of, or incorporated by reference into the court order, which provision specifically and unambiguously denies the court jurisdiction . . . it shall be presumed that . . . [a provision for support] is subject to the continuing jurisdiction of the circuit court.
Hereford, 162 W.Va. at 487-488, 250 S.E.2d at 52 (emphasis added).
We note in the case sub judice that neither the separation agreement nor the separate maintenance order specifically stated that the court's jurisdiction would cease. An examination of the separation agreement demonstrates that the parties wanted to enter an agreement concerning child custody, support, visitation and property rights of the parties[.] The agreement states that the parties intended to be separated the rest of their lives, and there was no provision in the agreement that the agreement would cease upon obtaining a divorce decree. Therefore, the court had continuing jurisdiction over the support allocated in the separation agreement merged into the separate maintenance order.
The court's jurisdiction over the support provided in the 1983 separation agreement continued after the entry of the 1985 West Virginia divorce order. While the West Virginia divorce decree could sever the bonds of matrimony between the parties, it could not address support unless it had personal jurisdiction over both parties. However, the support provisions of the separate maintenance order continued intact, and were subject to enforcement in the West Virginia court.
Therefore, we hold that a separate
maintenance order that requires a party to pay alimony or child support, and that
is entered by a West Virginia court that has both subject matter jurisdiction
and in personam jurisdiction over both parties, is not superseded by a
subsequent divorce decree entered by a West Virginia court that lacked in personam
jurisdiction over one of the parties. When a West Virginia court lacks in personam
jurisdiction over both parties, the court may grant a divorce through the divisible
divorce doctrine, that is, the court may only dissolve the bonds of marriage,
but it may not adjudicate issues such as alimony and child support as part of
the divorce action. A separate maintenance order that requires a party to pay
alimony or child support is active and controlling unless and until a court possessing
both subject matter jurisdiction and in personam jurisdiction over all
parties enters a new order.
While we have never addressed the issue of personal jurisdiction continuing in a support action after a divorce decree is entered, we have addressed a comparable issue in Hartley v. Ungvari, 173 W.Va. 583, 318 S.E.2d 634 (1984). In Hartley the custodial parent obtained a divorce from the non-custodial parent upon constructive service of process. Because the circuit court did not have personal jurisdiction over the noncustodial parent when the divorce was obtained, the circuit court reserved jurisdiction to award child support in the event personal jurisdiction was later acquired over the non-custodial parent. Nine years later the circuit court obtained personal jurisdiction over the non-custodial parent and awarded the custodial parent reimbursement child support. The matter came before this Court on the question of laches. What is important about Hartley in relation to this case is how we dealt with the issue of jurisdiction. We stated:
Under the provisions of W.Va. Code, 48-2-15 , where a divorce is granted upon constructive service of process and the divorce order grants custody of a child but makes no further provision for the support of that child, the custodial parent may maintain an action against the noncustodial parent, upon obtaining personal jurisdiction thereof, for reimbursement of reasonable past support expenditures furnished to the child by the custodial parent since the divorce unless, because of circumstances, the custodial parent is estopped from asserting the action.
Syllabus Point 1, Hartley, supra.
The circuit court in the case sub judice, like the circuit court in Hartley, could make no direct provision for child support in appellant's divorce action because the court lacked personal jurisdiction over the noncustodial parent. However, the court could, and did, incorporate the terms of the separation agreement in the parties' separate maintenance action, in which the court did have in personam jurisdiction over both parties. In Hartley we noted that [m]any jurisdictions have held that where a divorce order grants custody of a child to a parent and no other provision is made for the support of the child, the support obligations of the noncustodial parent are not terminated[.] Hartley, 173 W.Va. at 586, 318 S.E.2d at 636-637. The noncustodial parent's obligation is not terminated because [t]he duty of a parent to support a child is a basic duty owed by the parent to the child, Syllabus Point 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991), and courts should guard children's rights since they are often voiceless. Robinson v. McKinney, 189 W.Va. 459, 463, 432 S.E.2d 543, 547 (1993).
Being concerned with the support of children, and utilizing the divisible divorce doctrine, we stated in Syllabus Point 1 of Hartley, supra, that a circuit court may grant an ex parte divorce (thereby severing the bonds of marriage), and allow the custodial parent to maintain the action for support against the noncustodial parent until personal service is acquired.
It would be an absurd result if we were to allow a custodial parent to obtain an ex parte divorce and defer consideration of the issue of child support until personal service is obtained on the non-custodial parent -- as in Hartley v. Ungvari -- but not allow a custodial parent, who has already been awarded child support via a separate maintenance order granted by a court with in personam jurisdiction, to enforce the support order when a divorce is granted subsequent to the entry of the order awarding child support.
proceeding. Brady, 151 W.Va. at 903, 158 S.E.2d at 362.