Notice: On January 16, 2003 the Court granted a petition for rehearing in this matter. This opinion is therefore withdrawn and no longer effective.
David C. White, Esq.
Christopher P. Riley, Esq.
Law Offices of Bailey, Riley, Buch
Neiswonger and White & Harman, L.C.
Moundsville, West Virginia Wheeling, West Virginia
Attorney for the Appellant Attorney for the Appellee
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICES STARCHER AND ALBRIGHT dissent and reserve the right to file dissenting opinions.
1. A motion to vacate a judgment made pursuant to Rule 60(b),
W. Va. R. C. P., is addressed to the sound discretion of the court and the court's ruling on
such motion will not be disturbed on appeal unless there is a showing of an abuse of such
discretion. Syllabus point 5, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974).
2. Appeal of the denial of a Rule 60(b) motion brings to consideration
for review only the order of denial itself and not the substance supporting the underlying
judgment nor the final judgment order. Syllabus point 3, Toler v. Shelton, 157 W. Va. 778,
204 S.E.2d 85 (1974).
3. A final order terminating parental rights completely severs the parent-child relationship, and deprives the court of the authority to impose a post- termination award of child support on the parent whose rights have been terminated. However, termination of parental rights does not deprive a court of jurisdiction to enforce payment of child support that accrued before the obligor's parental rights were terminated.
Davis, Chief Justice:
The appellant and plaintiff below, Rebecca Lynn C. (See footnote 1) [hereinafter referred to as Ms. C.], appeals from an order entered July 2, 2001, by the Circuit Court of Ohio County. In that order, the circuit court upheld a prior agreement between Ms. C. and Michael Joseph B. [hereinafter referred to as Mr. B.], the appellee herein and defendant below, whereby Mr. B. agreed to make a lump sum child support payment to Ms. C. in exchange for his relinquishment of all parental rights in and to the parties' child. On appeal to this Court, Ms. C. contends that a change of circumstances involving the child's health necessitates a modification of the parties' prior agreement and an award of additional child support. Upon a review of the parties' briefs, the record submitted for appellate consideration, and the parties' arguments, we affirm the decision of the Circuit Court of Ohio County.
Following hearings before the family law master
(See footnote 2) and
the receipt of his recommended decision, the circuit court entered orders
on January 17, 1990, and April 11, 1990, determining Mr. B. to be the father
of Ms. C.'s child; awarding custody to Ms. C.; extending visitation rights
to Mr. B.; imposing joint liability on Ms. C. and Mr. B. for the child's medical
expenses; and granting child support to Ms. C. By subsequent order entered June 7, 1990, the circuit court modified the amount of its prior
award of child support.
(See footnote 3)
In the months after the court's June order, Ms. C. and Mr. B. resumed their
earlier negotiations regarding a settlement to involve a lump sum payment of child support
by Mr. B., and his relinquishment of all parental rights to the parties' child. As a result of
Ms. C. not being represented by counsel at that time, Mr. B.'s attorney declined to assist
him with the drafting of such an agreement. By letter dated August 28, 1990 [hereinafter
referred to as the letter agreement], Mr. B. memorialized the parties' arrangement, in
pertinent part, as follows:
I [Mr. B.] will pay you [Ms. C.] the total amount of Thirty Five Thousand Dollars ($35,000.00) for all past and future support of [the parties' child], as well as all past and future medical expenses for you and [the child]. . . .
. . . .
I will relinquish any custodial or parental right to [the child], including any rights of visitation.
I will agree to execute all necessary forms relinquishing any custodial or parental right to [the child] necessary for any future adoption purposes. The form also will provide that [the child's] name can be changed or adopted without further notice.
. . . .
To the extent that this agreement must be approved by Judge Broadwater, I will assume all fees and expenses associated with obtaining the consent.
If this letter contains our complete understanding, please sign your name at the end of this letter and I will attempt to obtain all necessary consents from the court.
Upon Ms. C.'s acquiescence to the terms of the letter agreement, Mr. B. petitioned the circuit court to approve the parties' letter agreement. By order entered November 14, 1990, the circuit court determined the parties' letter agreement to be fair and reasonable, and in the best interests of the plaintiff [Ms. C.] and [the parties' child], and under the circumstances, ratif[ied] and approve[d] the letter agreement dated August 28,
(See footnote 4)
It is undisputed that Mr. B. made the requisite payments to Ms. C. in
accordance with the letter agreement and court order. Further, there is no dispute that Mr.
B. correspondingly has foregone any attempt to contact, communicate, or otherwise form
a relationship with the parties' child.
On October 24, 1994, Ms. C.'s child (and former child
of Mr. B.) was diagnosed with Type I, Brittle Juvenile Diabetes. The record
indicates the child is generally in good health and is active. The treatment
of the child's medical condition requires regular blood sugar testing and
insulin shots, as well as quarterly physician's appointments and laboratory
tests. The approximate cost for such care is $218.85 per month, and is not
covered by Ms. C.'s medical insurance for the child. Presumably as a result
of these expenses, Ms. C., on February 26, 1996, petitioned the circuit court
to set aside its earlier ratification of the parties' letter agreement insofar
as it terminated Mr. B.'s obligation to pay child support.
(See footnote 5) Mr.
B. responded by filing a motion to dismiss Ms. C.'s petition.
The family law master took evidence on both motions. A decision was filed by the family law master recommending Ms. C.'s motion be denied and Mr. B.'s motion be granted. Ms. C. objected to the family law master's recommendation. The circuit court, by order entered July 2, 2001, adopted the recommendation of the family law master. From this order of the circuit court, Ms. C. appeals to this Court.
Insofar as the circuit court's order denying Ms. C.'s Rule 60(b) motion
adopted the recommendation of the family law master, our review is also guided by
Syllabus point 1 of Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995), where
we held, in part, that:
In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final . . . 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.
See also Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 393 n.11, 465 S.E.2d 841, 850 n.11 (1995) (In reviewing the decisions of the circuit court [reviewing a family law master's recommended order], the scope of this Court's review is relatively narrow. Our role is limited to considering errors of law and making certain that the circuit court adhered to its statutory standard of review of factual determinations, that is, whether the family law master's findings are supported by substantial evidence and consistent with the law.).
As a general matter, a circuit court is vested with continuing jurisdiction to modify its original order regarding child support . . ., as the circumstances of the parties or the welfare of the children may require. Carter v. Carter, 198 W. Va. 171, 177 n.10, 479 S.E.2d 681, 687 n.10 (1996). See W. Va. Code § 48-11-105 (2001) (Supp. 2002). The decisions of this Court that have recognized a circuit court's continuing jurisdiction to modify a child support order have primarily been in the context of a parent whose parental rights had not been terminated. We have never squarely addressed the issue of a circuit court's authority to award additional child support after an obligor's parental rights have been terminated. (See footnote 7) The resolution of this issue, however, was alluded to in dicta by this Court in In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).
One of the issues in Edward B. involved the circuit court's termination of
parental rights of a mother and putative father. This Court reversed the lower court's ruling
as it related to the mother and remanded the case for further consideration. In doing so, the
Court noted in dicta that [i]f the [mother's] rights are not terminated after consideration
on remand, adoption is no longer an issue, and the [mother's] rights to receive support from
the natural father would be negated by termination of the father's parental rights. Edward
B., 210 W. Va. at 636 n.24, 558 S.E.2d at 635 n.24.
Edward B. alluded to, in dicta, what appears to be the position taken by a majority of courts addressing the issue. That is, a majority of courts have held that an order terminating parental rights completely severs the parent-child relationship and deprives the court of the authority to make an award of child support. County of Ventura v. Gonzales 106 Cal. Rptr. 2d 461, 462 (2001). See Erwin v. Luna, 443 So.2d 1242, 1244 (Ala. Civ. App. 1983); In re Bruce R., 662 A.2d 107, 111 (Conn. 1995); Ponton v. Tabares, 711 So. 2d 125, 126 (Fla. Ct. App. 1998); Department of Human Res. v. Ammons, 426 S.E.2d 901, 902 (Ga. Ct. App. 1993); Kansas ex rel. Sec'y of Soc. & Rehab. Servs. v. Clear, 804 P.2d 961, 966 (Kan. 1991); Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky. Ct. App. 1994); Louisiana v. Smith, 571 So. 2d 746, 748 (La. Ct. App. 1990); In re Estate of Braa, 452 N.W.2d 686, 688 (Minn. 1990); Schleisman v. Schleisman, 989 S.W.2d 664, 671 (Mo. Ct. App. 1999); Nevada v. Vine, 662 P.2d 295, 297-98 (Nev. 1983); Gabriel v. Gabriel, 519 N.W.2d 293, 295 (N.D. 1994); In re Scheehle, 730 N.E.2d 472, 475 (Ohio Ct. App. 1999); Kauffman v. Truett, 771 A.2d 36, 39 (Pa. 2001); Coffey v. Vasquez, 350 S.E.2d 396, 398 (S.C. App. 1986); Estes v. Albers, 504 N.W.2d 607, 608 (S.D. 1993); Swate v. Swate, 72 S.W.3d 763, 771(Tex. Ct. App. 2002); Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 562 S.E.2d 327, 329 (Va. Ct. App. 2002); In re Dependency of G.C.B., 870 P.2d 1037, 1042 n.6 (Wash. Ct. App. 1994). But see Evink v. Evink, 542 N.W.2d 328, 331 (Mich. Ct. App. 1996) (concluding that child support obligation continues after parental rights have been terminated); Rhode Island v. Fritz, 801 A.2d 679, 685 (R.I. 2002) (same).
The majority rule is premised upon the reality that termination of parental rights is a complete severance of all ties between the child and parent so as to render them 'legal strangers[.]' Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 562 S.E.2d 327, 329 (Va. Ct. App. 2002). Consequently, [b]ecause a party whose parental rights have been terminated is a 'legal stranger' to the child, that parent no longer has a duty to support the child. Fletcher, 562 S.E.2d at 329. Of course, [t]ermination does not foreclose the possibility that a parent may seek to recover the amount of past due child support. Swate v. Swate, 72 S.W.3d 763, 771 (Tex. Ct. App. 2002). See Runner v. Howell, 205 W. Va. 359, 518 S.E.2d 363 (1999) (per curiam) (disapproving cancellation of child support payments that accrued before obligor agreed to relinquish parental rights). Even so, [a] judgment terminating a parent's rights . . . absolves that parent of all future support obligations. In re Bruce R., 662 A.2d 107, 111 (Conn. 1995).
In view of the foregoing authorities, we hold that a final order terminating parental rights completely severs the parent-child relationship, and deprives the court of the authority to impose a post-termination award of child support on the parent whose rights have been terminated. However, termination of parental rights does not deprive a court of jurisdiction to enforce payment of child support that accrued before the obligor's parental rights were terminated.
The position adopted today is distinguishable from this Court's ruling in
Kimble v. Kimble, 176 W. Va. 45, 341 S.E.2d 420 (1986). In Kimble, the ex-husband of the
appellant executed an agreement to permit the appellant's new husband to adopt the parties'
child. As a condition for this agreement, the ex-husband would be relieved of child support
payments once the adoption was finalized. The adoption was never finalized, and the
appellant, a year later, sought past child support payments from her ex-husband. The circuit
court awarded past child support payments up to the day the parties executed the adoption
agreement, but relieved the ex-husband of all child support payments that had accrued after
execution of the agreement. On appeal this Court held, in Syllabus point 1, that [t]he
execution of consent to the adoption of a child by its custodial parent and the custodial
parent's current spouse is alone insufficient to terminate a noncustodial parent's decretal
obligation to make child support payments. 176 W. Va. 45, 341 S.E.2d 420. We therefore
reversed and remanded the case for the trial court to determine whether principles of
equitable estoppel precluded the appellant from obtaining child support payments.
The decision in Kimble stands for the proposition
that an agreement to allow a child to be adopted that has not been
approved by a court order, will not relieve a parent of his/her child support
(See footnote 8) Kimble did not address the issue
confronting this Court in the instant case. That is, in the matter sub
judice, we are confronted with an agreement to terminate parental rights
that was approved of and executed by the circuit court.
(See footnote 9)
In the instant proceeding, Ms. C. does not challenge the validity of the
termination of Mr. B.'s parental rights. That is, Ms. C. does not seek to have Mr. B.'s
parental rights restored to the child. Instead, Ms. C. argues that she is entitled to have
additional child support from Mr. B. because of changed circumstances in the health of the
child. Additional support is not available as a result of the termination of Mr. B.'s parental
rights. The order terminating Mr. B.'s parental rights required him to pay $35,000.00 to
fulfill all of his child support obligations. In this appeal, Ms. C. does not allege that Mr. B.
failed to comply with the child support provisions of the order that terminated his parental
rights. Instead, Ms. C. seeks to impose additional post-termination child support upon Mr.
B. The relief sought by Ms. C. cannot be awarded because Mr. B. has become a legal
stranger to Ms. C.'s child. Simply put, [a] parent whose parental rights have been
terminated is relieved of all duties and obligations to support the child[.] Kansas ex rel.
Sec'y of Soc. & Rehab. Servs. v. Clear, 804 P.2d 961, 966 (Kan. 1991). It is quite clear that
in applying our holding to the facts of this case, we must affirm the circuit court's
determination that it lacked authority to award additional child support to Ms. C.
1. That [Mr. B.] is responsible for child support at the
rate of Three Hundred Dollars ($300) from and after June 1,
2. That [Ms. C.] is granted a decretal judgment in the sum of Seven Thousand Two Hundred Dollars for child support from June 1, 1988 to May 31, 1990.
3. That [Mr. B.] is responsible to pay the sum of One Thousand Five Hundred Forty-one Dollars Thirty-eight Cents ($1,541.38) for child birth costs as previously ordered by the Family Law Master[.]
ORDERED that any future proceedings designed to
either change the name of [the child] or to adopt [the child]
may proceed and occur without any future notice to [Mr. B.].
It is further, ORDERED that the decretal judgment contained in the order of June 7, 1990, be and the same is hereby held for naught and the petitioner released from any obligation thereunder[.]
(extending, under current version of rule, time within which aggrieved party must file motion within one year). In this case, Ms. C. filed her Rule 60(b)(1) motion six years after the entry of judgment of which she complains. It goes without saying, then, that Ms. C's untimely motion precludes her from seeking the relief she desires. See State ex rel. West Virginia Dep't of Health & Human Res. v. Sinclair, 210 W. Va. 354, 362, 557 S.E.2d 761, 769 (2001) (Davis, J., dissenting) (We have previously recognized that 'in general, the law ministers to the vigilant, not to those who sleep on their rights.' State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996).).