Link to PDF file
655 S.E.2d 539
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
CHILD SUPPORT ENFORCEMENT DIVISION,
AND ANGELA L. VARNEY,
Petitioners Below, Appellants
CECIL C. VARNEY,
Respondent Below, Appellee
Appeal from the Circuit Court of Mingo County
The Honorable Michael Thornsbury, Judge
Case No. 89-C-7566
Submitted: October 24, 2007
Filed: November 21, 2007
Angela L. Varney
Cecil C. Varney
Delbarton, West Virginia
Williamson, West Virginia
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD, deeming himself disqualified, did not participate in the decision of
JUDGE DAVID R. JANES, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. In a proceeding governed by the Rules of Civil Procedure, a judgment
rendered in such proceeding is not final and effective until entered by the clerk in the civil
docket as provided in Rule 58 and Rule 79(a) of the Rules of Civil Procedure. Syl. pt. 4, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819 (1974).
2. In reviewing a final order entered by a circuit 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.
Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
3. 'The ten-year statute of limitations in W.Va. Code, 38-3-18  and not
the doctrine of laches applies when enforcing a decretal judgment which orders the payment
of monthly sums for alimony or child support.' Syllabus point 6, Robinson v. McKinney,
189 W.Va. 459, 432 S.E.2d 543 (1993). Syl. Pt. 6, Collins v. Collins, 209 W.Va. 115, 543
S.E.2d 672 (2000).
4. By the specific terms of W.Va. Code § 38-3-18 (1923) (Repl.Vol. 1997),
the issuance of an execution operates to preserve the judgment, and the statute of limitations
commences to run from the return date of the execution. Syl. Pt. 7, Collins v. Collins, 209
W.Va. 115, 543 S.E.2d 672 (2000).
This is an appeal by Appellant Angela L. Varney (See footnote 1) from an order of the Circuit
Court of Mingo County, West Virginia, which denied her appeal and affirmed the final order
of the Family Court of Mingo County. At issue is the enforceability of a decretal judgment
for alimony arrearages against Appellant's former spouse, Appellee Cecil C. Varney. The
court below determined that the statute of limitations applies to bar Appellant's claim. Upon
careful review of the briefs, record, arguments of counsel, and applicable precedent, this
Court reverses the order of the circuit court.
I. Factual and Procedural Background
During the pendency of the parties' divorce proceedings _ which began over
seventeen years ago _ numerous motions and briefs were filed with respect to custody of
the parties' only child, the payment of certain marital debts and the disposition of certain
marital assets. As a result of this protracted ordeal, a plethora of orders were entered
addressing these issues, which either have been resolved or are not relevant to the instant
appeal. Therefore, we recite only those facts and refer only to those filings and court orders
which are pertinent to resolution of this appeal.
The sole question in this appeal involves a judgment for alimony arrearages
entered against Appellee and in favor of Appellant. On June 5, 1991, the circuit court
entered an Order Pendente Lite, which, inter alia
, provided that [b]y agreement of the
parties, the defendant [Appellee herein] shall pay $1,000 per month as alimony to the
plaintiff [Appellant herein] during the pendency of this action.
The parties were subsequently divorced by Divorce Decree entered in the
Circuit Court of Mingo County on January 27, 1992. Also on that date, the circuit court
entered a Final Order with Findings of Facts, Conclusions of Law and Recommendations
to the Court, (See footnote 2)
in which the various issues relating to the parties' divorce were addressed. (See footnote 3)
Relevant to the instant appeal, the court made reference to Appellee's failure
to comply with the June 5, 1991, Order Pendent Lite (See footnote 4)
and stated, in paragraph 35, that
Since the time a temporary hearing was held in this
matter by the former Special Family Law Master[,] the
Defendant [Appellee herein] has failed to comply with his
agreement made. Whether, due to the delay of the entry of the
Order, the matter can be said not to constitute a decretal
judgment, it nevertheless constituted a contractual commitment
of the Defendant to make such payments. Accordingly the
Plaintiff [Appellant herein] should be granted a judgment
against the Defendant for all arrearages of support and Five
Thousand Two Hundred Dollars ($5,200.00) for payments
made by the Plaintiff on the debts.
Absent from the January 27, 1992, order was any calculation of the amount
of support in arrears, including any reference to a specific time period during which the
Appellee failed to make the subject support payments.
A contempt proceeding was conducted on January 27, 1992, (See footnote 5)
Honorable David W. Knight, Special Judge. Judge Knight subsequently entered an Order
Pursuant to Rule and Modifying Divorce Decree on March 19, 1992. This order was entered
by the clerk of the circuit court in Civil Order Book No. 82, at page 546, on March 23, 1992.
The Order Pursuant to Rule and Modifying Divorce Decree concluded, inter alia
During the course of the hearings, various testimony on
documentary evidence was introduced which leads the Court to
believe that there should be a modification of the Divorce
Decree for the purposes of clarification.
It is, therefore, ORDERED that the Divorce Decree
entered on the 27th day of January, 1992, be, and hereby is,
modified as follows:
1. Paragraph 35 of the Family Law Master's
Recommended Decision which was incorporated into the
Divorce Decree shall henceforth read as follows:
Since the time a temporary hearing was
held in this matter by the former Special Family
Law Master, the Defendant has failed to comply
with his agreement made. Whether, due to the
delay of the entry of the Order, the matter can be
said not to constitute a decretal judgment, it
nevertheless constituted a contractual
commitment of the Defendant to make such
payments. Accordingly, the Plaintiff shall be
granted a judgment against the Defendant for all
arrearages of alimony totalling Eleven Thousand
Dollars ($11,000.00), plus interest calculated at
ten percent (10%) from the month of October,
1991, per annum, and Five Thousand Two
Hundred Dollars ($5,200.00) for payments made
by Plaintiff on the debts, plus interest, from the
month of October, 1991, at a rate of 10%, per
. . . .
3. All the rest and residue of the Divorce Decree . . .
shall remain unchanged and in full force and effect.
During the course of the January 27, 1992 contempt proceeding, the judge
explained his reason for modifying paragraph 35 of the previously-entered divorce decree (See footnote 6)
I find that the arrearage should have been stopped and
the alimony should have been stopped at the time the law master
made his finding, which was the first of October, 1991 (See footnote 7)
there was a period of 11 months, according to my calculation
between the last hearing and what would have been the end of
September. So, I find that the arrearage from that period of
time or [sic] $11,000.00, in addition to that the law master made
a finding of $5,200.00 in paragraph 35. I find that the $400.00
a month figure set by the law master, set by the agreement for
additional support in the temporary petition order on paragraph
35 and will grant a judgment against the defendant for
$11,000.00 and the $5,200.00.
. . . .
The judgment should include the $11,000.00 and the $5,200.00
and the pre-judgment interest from the last of September and
the first of October, 1991 and I am not going to compound the
The court also found that Appellee's failure to make support payments under
the June 5, 1991, order did not amount to either civil or criminal contempt. According to
the transcript, the court explained that its ruling that the interest should not be compounded
was based, in part, on its finding of no contempt. Additionally, the March 23, 1992, order
denied the BCSE's motion to establish a program of automatic withdrawal from Appellee's
business account for amounts owed under the June 5, 1991, order.
Thereafter, Appellant, along with the BCSE, attempted to collect the
foregoing judgment. As reflected in a December 19, 1996, circuit court order, a Writ of
Suggestion was issued and served on an officer of the Bank of Mingo in an effort to secure
funds on deposit there in the name of Appellee and his mother, Mary Varney. The
December 19, 1996, order refers to the family court's March 23, 1992, order awarding
Appellant alimony which was unpaid resulting in arrearage against the defendant of
$17,214.16 as of August 31, 1996, including interest[.] Notably, on January 10, 1997,
Appellee filed a Motion for Stay of Order and an accompanying affidavit, in which he
neither objects to or otherwise questions the court's reference to the March 23, 1992 order
as awarding the judgment against Appellee. Ultimately, an Order Quashing Suggestion
Execution and Lifting Stay was entered on November 3, 1997, on the ground, inter alia
notwithstanding the apparent joint ownership of the funds, the funds are the sole property
of Appellee's mother and not subject to execution by Appellee's creditors.
Meanwhile, the West Virginia Department of Health and Human Resources,
Child Support Enforcement Division, filed a Petition for Contempt. On September 22, 1997,
the circuit court granted the petition and entered an Order to Show Cause requiring Appellee
to show cause as to why he should not be adjudged in contempt for refusing to obey the
March 23, 1992, (See footnote 8)
order requiring him to pay a judgment for alimony. On January 15, 1998,
Appellee filed a Motion to Dissolve Order to Show Cause. Approximately five years later,
by order entered August 26, 2002, the court found Appellee not to be in contempt and,
accordingly, entered a Final Order Dissolving Rule for Contempt.
Other efforts by Appellant to collect the decretal judgment include the filing
of a Notice to Employer/Source of Income to Modify Withholding on August 12, 1996 and
the obtaining of abstracts of judgment on September 5, 1996, February 28, 2002 and March
21, 2002. (See footnote 9)
Appellant also obtained a Suggestion of Personal Property and a Suggestee
Execution on March 20, 2002.
On March 20, 2002, Appellant obtained a writ of execution for the judgment
against Appellee, (See footnote 10)
with a return day of May 5, 2002. (See footnote 11)
Though the record is not clear on
this point, it appears that either there was no return by an officer or the writ was returned
W.Va. Code § 38-3-18. Upon learning that a writ of execution had been
issued, Appellee wrote a letter, dated April 2, 2002, to the Clerk of the Circuit Court of
Mingo County. In the letter and accompanying affidavit, Appellee avers that the March 23,
1992, order does not create a judgment but rather, modifies the divorce decree entered on
January 27, 1992. Appellee requested that the writ of execution and abstract of judgment
that wrongfully and mistakenly state the date of judgment as March 23, 1992, or any date
other than January 27, 1992 be rescinded. The record does not indicate whether the clerk
of the circuit court took any action with respect to Appellee's letter and affidavit.
On May 19, 2003, the BCSE filed a Motion for Determination of Judgement
and requested that the court enter an order setting a judgement amount and ruling that the
judgements previously entered by the court have been properly renewed by the [Appellant]
in a timely manner and are, therefore, valid and enforceable judgements. In support of its
motion, the BCSE stated, inter alia
, that a writ of execution was issued on March 20, 2002
in an attempt to collect the judgement and pursuant to [W.Va. Code § 38-3-18] acted to toll
the running of the statute of limitations and preserve the judgement. . . . Nine years and
[t]hree [h]undred [s]ixty [t]wo days from the original entry of the judgement against the
[Appellee] and in favor of the [Appellant].
Following a hearing on the matter, the family court entered a Final Order on
December 21, 2004, and ruled, inter alia
, that paragraph 35 of the January 27, 1992 order
granting the parties' divorce granted a judgment in favor of Appellant and against Appellee
'for all arrearages of support and . . . $5200.00 for payments made by the [Appellant] on
the debts.' The court further concluded, in pertinent part,
That the gross total of said judgment, although an
ascertainable sum certain, was not set out in said Order; and
That by Order entered herein on March 23, 1992, the
Court modified the language of said judgment by further
calculating the arrearage of support, adding prejudgment
interest, to begin from October, 1991, and thereby establishing
the amount of the decretal judgment to be $16,200.00 plus
applicable interest; and
That subsequently thereto, over the course of the years,
the plaintiff caused the Clerk of this Court to issue various
Abstracts of Judgment, Suggestions and Notices to Employers
of Income Withholding, all in an effort to collect said judgment;
That the Court notes that the Clerk of this Court
erroneously identified the date of the judgment as March 23,
1992 (which is the date of the modified judgment), instead of
the correct date of January 27, 1992; and
That West Virginia Code Chapter 38-3-18 provides that
a judgment execution may be issued within ten years after the
That in the case of Shaffer v. Stanley
, 593 S.E.2d 629
(W.Va. 2003), filed on November 26, 2003, the West Virginia
Supreme Court of Appeals ruled that administrative attempts to
enforce an obligation, otherwise collectable by the Bureau for
Child Support Enforcement, do not toll the statute of
That during the ten-year period from January 27, 1992,
through and including January 27, 2002, no actions were taken
by the plaintiff to preserve the decretal judgment other than
administrative actions which do not satisfy the requirements set
forth in Shaffer v. Stanley
The family court ruled, therefore, that the date of the decretal judgment is
January 27, 1992, and that, because Appellant did not obtain a writ of execution before
January 27, 2002, the enforceability of the judgment was extinguished as of that date. Thus,
the court determined that efforts to collect this decretal judgment are now subject to bar by
the affirmative defense of statute of limitations.
Appellant appealed the family court's order to the Circuit Court of Mingo
County. In a Final Order Denying Appeal and Affirming Final Order of the Family Court,
entered September 8, 2005, the circuit court agreed with the family court's finding that the
date of the decretal judgment is January 27, 1992. The court concluded that although the
March 20, 1992, order alter[ed] the language of the January 27, 1992, order, it does not
establish a new decretal amount. Accordingly, the circuit court ruled that because Appellant
did not obtain a formal writ of execution between January 27, 1992, and January 27, 2002,
the limitation period was not tolled. The circuit court affirmed the family court's ruling that
the statute of limitations applies to bar Appellant from recovering upon the decretal
judgment against Appellee. It is from this order that Appellant now appeals. (See footnote 12)
II. Standard of Review
Our consideration of the circuit court's order presently challenged by
Appellant is governed by the following standard of review: In reviewing a final order
entered by a circuit 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. Syllabus, Carr v. Hancock, 216
W.Va. 474, 607 S.E.2d 803 (2004).
At the outset, and as noted above, the Divorce Decree and Final Order with
Findings of Facts, Conclusions of Law and Recommendations to the Court were signed by
the circuit court judge on January 27, 1992, but were entered in the civil docket book by the
clerk of the circuit court on January 28, 1992. Similarly, the Order Pursuant to Rule and
Modifying Divorce Decree was signed by the circuit court judge on March 19, 1992, but
was not entered in the civil docket book by the clerk of the circuit court until March 23,
1992. It is well settled that
[i]n a proceeding governed by the Rules of Civil
Procedure, a judgment rendered in such proceeding is not
final and effective until entered by the clerk in the civil
docket as provided in Rule 58 (See footnote 13)
and Rule 79(a) (See footnote 14)
Rules of Civil Procedure.
(Footnotes added). Syl. pt. 4, State v. Mason
, 157 W.Va. 923, 205 S.E.2d 819 (1974). See
., at syl. pt. 5 (Rendition of a judgment is the pronouncement of the judgment by the
court, while entry of the judgment is the notation of the judgment in the official records.). (See footnote 15)
Accordingly, for purposes of determining when the limitation period began to run in this
case, the proper date is the date of entry of the judgment by the circuit clerk in the civil
docket. (See footnote 16)
At issue in this appeal is whether the statute of limitations applies to bar
recovery of the judgment for alimony arrearages awarded in favor of Appellant and against
Appellee. It is undisputed that the limitation period in W.Va. Code § 38-3-18 applies to the
collection of a judgment for alimony arrearages. 'The ten-year statute of limitations in W.Va. Code, 38-3-18  and not the doctrine of laches applies when enforcing a decretal
judgment which orders the payment of monthly sums for alimony or child support.' Syllabus
point 6, Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993). Syl. Pt. 6, Collins
v. Collins, 209 W.Va. 115, 543 S.E.2d 672 (2000).
West Virginia Code § 38-3-18 provides:
On a judgment, execution may be issued within ten years
after the date thereof. Where execution issues within ten years
as aforesaid, other executions may be issued on such judgment
within ten years from the return day of the last execution issued
thereon, on which there is no return by an officer or which has
been returned unsatisfied. An action, suit or scire facias may be
brought upon a judgment where there has been a change of
parties by death or otherwise at any time within ten years next
after the date of the judgment; or within ten years from the
return day of the last execution issued thereon on which there is
no return by an officer or which has been returned unsatisfied.
But if such action, suit or scire facias be against the personal
representative of a decedent, it shall be brought within five years
from the qualification of such representative.
We interpreted this statutory provision to mean that [b]y the specific terms of
W.Va. Code § 38-3-18 (1923) (Repl.Vol. 1997), the issuance of an execution operates to
preserve the judgment, and the statute of limitations commences to run from the return date
of the execution. Collins, 209 W.Va. 115, 543 S.E.2d 672, at syl. pt. 7. As we recognized
in Zanke v. Zanke, 185 W.Va. 1, 4, 404 S.E.2d 92, 95 (1991), appeal after remand, 192
W.Va. 310, 452 S.E.2d 401 (1994),
[u]nder W.Va.Code, 38-3-18, a judgment may remain
alive after the ten-year period if the judgment creditor seeks
issuance of an execution within the ten-year period. Should this
judgment remain unsatisfied, the creditor can obtain additional
executions in a like manner to keep the judgment alive.
Conversely, however, if the ten-year period is allowed to run
without an execution being issued in favor of the payee spouse,
the judgment dies a statutory death, incapable of revival.
(Footnote and citations omitted.)
Furthermore, in Shaffer v. Stanley
, 215 W.Va. 58, 593 S.E.2d 629 (2003), we
made clear that administrative actions to obtain past due child support payments do not
constitute an execution of judgment under W.Va. Code § 38-3-18 (1923) for the purpose of
tolling the ten-year limitation period for the execution of an issuance on a judgment. Syl.
pt. 5, in relevant part. (See footnote 17)
Though the facts in Shaffer
involved a judgment for child support
arrearages, the requirement that a formal writ of execution be issued in order to toll the ten-
year limitation period applies to a judgment for alimony arrearages.
In the instant case, Appellant made various attempts to collect the decretal
judgment. It is clear from the record, however, that the only writ of execution issued was on
March 20, 2002, less than ten years from the date of entry of the March 23, 1992, order, but
more than ten years after the January 27, 1992, order was entered. The lower court
determined that the date of the decretal judgment is January 27, 1992, the date of the Divorce
Decree and Final Order with Findings of Fact, Conclusions of Law and Recommendations
to the Court. Because a formal writ of execution was not issued within ten years of that date
_ that is, before January 27, 2002 _ the circuit court ruled the statute of limitations applies
to bar enforceability of the judgment. We disagree.
A careful review of the March 23, 1992, Order Pursuant to Rule and Modifying
Divorce Decree reveals that the court made a material modification to the January 27, 1992,
order such that it was tantamount to a new judgment. In the March 23, 1992, order, the lower
court found that Appellee was not in contempt for failing to make the alimony payments to
Appellant and, further, denied the BCSE's motion to have the unpaid alimony automatically
withdrawn from Appellee's business account. Moreover, the March 23, 1992, order stated
that the court heard various testimony on documentary evidence leading it to modify the
Divorce Decree. The order granted a judgment in favor of Appellant for all alimony
arrearages totaling $11,000.00, plus interest, from October of 1991, as well as $5,200.00 for
payments Appellant made on debts, plus interest, also from October of 1991. As the hearing
transcript made clear, the March 23, 1992, order was based on a particular finding that the
alimony should have ceased in October 1991. The court found the total arrearage to be
$11,000.00 because, as explained during the January 27, 1992, contempt proceeding, there
was a period of 11 months, according to [the court's] calculation between the last hearing and
what would have been the end of September. Furthermore, the lower court determined that
the interest should not be compounded based, in part, upon the finding that Appellee's failure
to make the subject payments did not constitute contempt.
Clearly, in its March 23, 1992, order, the lower court awarded Appellant a
precisely-calculated judgment based upon evidence it considered and findings it made after
the January 27, 1992 order was entered. (See footnote 18)
We conclude, therefore, that it is from the date of
the March 23, 1992, judgment that the limitation period set forth in W.Va. Code § 38-3-18
began to run. Because a writ of execution was issued on March 20, 2002, within the ten-year
statute of limitations that had attached to the March 23, 1992, judgment, the decretal
judgment against Appellee was preserved and the statute of limitations began to run anew
from the return day of the execution. See Collins
, 209 W.Va. 115, 543 S.E.2d 672, at syl. pt.
7. As previously indicated, the return day of the execution is May 5, 2002. Though it is not
clear from the record, it appears that either there was no return by an officer or the execution
was returned unsatisfied. See
W.Va. Code § 38-3-18. In either event, we find that, pursuant
to W.Va. Code § 38-3-18, Appellant may continue her efforts to collect the decretal judgment
from Appellee either by obtaining another writ of execution or by instituting a civil action,
until May 5, 2012.
Based upon the foregoing, the circuit court's order of September 8, 2005, is
The West Virginia Department of Health and Human Resources, Child
Support Enforcement Division (now Bureau for Child Support Enforcement, or BCSE),
did not participate in this appeal.
Both the Divorce Decree and the Final Order with Findings of Facts,
Conclusions of Law and Recommendations to the Court were signed by the circuit court
judge on January 27, 1992. They were entered by the clerk of the circuit court, in Book No.
81, at pages 279 and 280, respectively, on January 28, 1992. In later orders, which are
discussed below, the Divorce Decree and Final Order with Findings of Fact, Conclusions
of Law and Recommendations to the Court are referred to as having been entered on January
27, 1992, rather than January 28, 1992. To avoid confusion, we shall refer to January 27,
1992 as the date of the orders' entry. However, this discrepancy is discussed in more detail
in the Discussion section of this opinion.
According to the Final Order with Findings of Facts, Conclusions of Law and
Recommendations to the Court, prepared by the Special Family Law Master, the matter
came to be heard on various dates over the course of several months. The Divorce Decree
indicates that the Special Family Law Master's findings, conclusions and recommendations
were submitted to the circuit court on or about October 1, 1991.
Appellant received no award of alimony under the final terms of the divorce.
Appellant instituted contempt proceedings on September 5, 1991, alleging
Appellee failed to pay certain marital debts and unilaterally disposed of certain marital
assets, in violation of the June 5, 1991 order. The court issued a rule to show cause that
same day. A hearing on the matter was conducted on January 27, 1992; however, according
to various correspondence in the record, the transcript of the hearing was, for the most part,
lost. Approximately one and one-quarter pages of the hearing transcript were salvaged and
appear in the record; the hearing is discussed in more detail below.
The court also modified paragraph 34 of its prior order; that modification is
not relevant to the instant appeal.
As indicated previously, Findings of Fact, Conclusions of Law and
Recommendations of the Special Family Law Master were submitted to the circuit court on
or about October 1, 1991.
The Order to Show Cause entered on September 22, 1992, identified the date
of the order as March 19, 1992. As noted above, the circuit court judge signed the order on
March 19, 1992, but the order was not entered by the clerk of the circuit court until March
23, 1992. This issue is discussed in more detail in the Discussion section of this opinion.
It appears from the record that the abstracts of judgment obtained by
Appellant were not docketed in the office of the clerk of the county commission. See
Code § 38-3-5.
The writ of execution issued on March 20, 2002, was in the amount of
$33,050.00. Of this amount, $16,200.00 was for the unpaid principal and $16,740.00 for
unpaid interest. The remaining amount was for unpaid costs and the cost of the writ.
In an affidavit dated April 22, 2002, Margaret Kohari, a deputy clerk in the
office of the Clerk of the County Commission of Mingo County, stated that the writ of
execution was filed with her office on March 21, 2002, and recorded in Execution Docket
Book at page 132. See
W. Va. Code § 38-3-8.
On January 29, 1992, Appellee filed for discharge in bankruptcy pursuant
to Chapter 7 of the Bankruptcy Code. The bankruptcy court entered a Discharge Order on
May 15, 1992, thereby dismissing the bankruptcy action. On appeal to the circuit court,
Appellant argued, for the first time, that the limitation period was automatically tolled as a
result of the bankruptcy filing, see
W.Va. Code § 55-2-22 ([e]ffect of bankruptcy), and
that she had until ten years after the May 15, 1992, discharge order was entered to execute
on the judgment in order to preserve it. This assignment of error was not raised before the
family court and thus, the circuit court declined to address it for the first time on appeal.
Similarly, though Appellant raises this assignment of error in the instant appeal, it is well
settled that ' [i]n the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which
the appeal has been taken. Syllabus Point 1, Mowery v. Hitt
, 155 W.Va. 103 [, 181 S.E.2d
334] (1971).' Syl. pt. 1, Shackleford v. Catlett
, 161 W.Va. 568, 244 S.E.2d 327 (1978). Syl.
pt. 3, Voelker v. Frederick Business Properties Co.
, 195 W.Va. 246, 465 S.E.2d 246 (1995).
Rule 58 of the West Virginia Rules of Civil Procedure, Entry of Judgment,
Subject to the provisions of Rule 54(b), the court shall
promptly settle or approve the form of the judgment and sign it
as authority for entry by the clerk. The clerk, forthwith upon
receipt of the signed judgment, shall enter it in the civil docket
as provided by Rule 79(a). The notation of a judgment in the
civil docket as provided by Rule 79(a) constitutes the entry of
the judgment; and the judgment is not effective before such
entry. The entry of judgment shall not be delayed for the taxing
of costs or to permit a motion for a new trial or any other
motion permitted by these rules.
Rule 79(a) of the West Virginia Rules of Civil Procedure, Books and
Records Kept by the Clerk and Entries therein, provides:
(a) Civil Docket. _ The clerk shall keep a book known as
civil docket of such form and style as may be prescribed by
the Supreme Court of Appeals, and shall enter therein each civil
action to which these rules are made applicable. Actions shall
be assigned consecutive file numbers. The file number of each
action shall be noted on the folio of the docket whereon the first
entry of the action is made. All papers filed with the clerk, all
process issued and returns made thereon, all appearances,
orders, verdicts, and judgments shall be entered chronologically
in the civil docket on the folio assigned to the action and shall
be marked with its file number. These entries shall be brief but
shall show the nature of each paper filed or writ issued and the
substance of each order or judgment of the court and of the
returns showing execution of process. The entry of an order or
judgment shall show the date the entry is made. When in an
action trial by jury has been properly demanded or ordered the
clerk shall note the word jury on the folio assigned to that
The facts in Mason
involved the sale at public auction of unredeemed
property that had previously been sold to the State for unpaid taxes. Following the sale,
the Deputy Commissioner of Forfeited and Delinquent Lands reported the sale to the court
on February 9, 1972, and the court signed a Decree of Confirmation on that date. Also
on that date, the decree was entered in the Civil Action Book and the Delinquent Land
Order Book. On February 25, 1972, the heirs of the property's former owner sought to
redeem the property, arguing that the Decree of Confirmation signed by the court on
February 9, 1972, was not a final order because it had not been entered in the civil docket
as required by Rule 58 of the Rules of Civil Procedure, and that they had the right to petition
for redemption any time before the order of confirmation was final. 157 W.Va. at 925, 205
S.E.2d at 821. This Court determined that the confirmation of sale was not final when it was
signed by the court on February 9 and entered in the order book. Rather, the Court relied on
the language of Rules 58 and 79(a) of the W.Va. R. Civ. P. and found the confirmation of
sale (deemed a judgment pursuant W.Va. R. Civ. P. 54(a)) was not final until after March
13, 1972, when it was entered in the civil docket.
In Moats v. Preston County Comm.
, 206 W.Va. 8, 521 S.E.2d 180 (1999),
we held in syllabus points one and two, the following:
1. Generally, an order is effective when a court
2. An oral order has the same force, effect, and validity
in the law as a written order. In other words, the actual physical
possession of a written order is not required to effectuate said
Our holding in Moats
is not applicable to the case presently before us. At
issue in Moats
was whether a county commission was immune from suit and liability for
damages to plaintiff under the West Virginia Governmental Tort Claims and Insurance
Reform Act, W.Va. Code § 29-12A-1 to -18, by reason of enforcing and executing the
order of the mental hygiene commissioner. 206 W.Va. at 12, 521 S.E.2d at 184.
, the plaintiff's decedent intentionally injured herself (and eventually
died from her injuries) while in the custody of the sheriff's department awaiting transport
to a hospital for examination, following an involuntary commitment hearing. Under the
Act, if the sheriff's department was acting pursuant to an order entered by the mental
hygiene commissioner, it would be immune from suit. The plaintiff argued, however, that
the sheriff's department voluntarily assumed responsibility for the decedent and was not
executing or enforcing the commissioner's order because it did not have a written copy of
it in its possession at the time the decedent injured herself. Thus, plaintiff argued, the
sheriff's department could not enforce or execute an order until it receives it. Based upon
syllabus points one and two, above, we rejected plaintiff's argument and concluded that
[b]ecause the Sheriff's Department had notice of the order entered by the mental hygiene
commissioner in this case, we find that the Sheriff was acting pursuant to said order. 206
W.Va. at 13, 521 S.E.2d at 185.
The facts of Moats
involved the duty of law enforcement officers to execute
and enforce a lawful order of a court even though the officers did not have actual physical
possession of said order. Our decision in Moats
did not involve entry of a judgment order
as it relates to the running of statutes of limitations and thus, does not affect our holding in
the instant case.
At issue in Shaffer
was whether attempts by the Bureau of Child Support
Enforcement to intercept the former husband's income tax returns for the purpose of
satisfying past due child support payments, as provided by W.Va. Code §§
48-18-117 and 118,
tolled the ten-year limitation period set forth in W.Va. Code § 38-3-18. This Court
determined that the income tax intercepts were not executions under W.Va. Code § 38-3-
18. We concluded that an execution necessarily involves a court process wherein a judicial
writ is issued. Shaffer
, 215 W.Va. at 65, 593 S.E.2d at 636. On the other hand, a tax
offset is a purely administrative action initiated and carried out by executive agencies. Id
Thus, actions other than executions do not toll the limitation period in W.Va. Code § 38-3-
In syllabus point one of Sauls v. Howell, 172 W.Va. 528, 309 S.E.2d 26
(1983), we held:
Mature, unpaid installments provided for in a decree of
divorce, which decree ordered a husband to pay to his former
wife $2,700, in lieu of alimony at $150 per month, stand as
decretal judgments against the husband, and the wife is entitled
to institute suggestion proceedings under W.Va. Code, 38-5-10
, to recover upon those judgments, and she need not
institute ancillary proceedings to reduce the amount of those
judgments to a sum certain.
In Sauls, the payee wife sought to recover the decretal judgments by instituting
suggestion proceedings against a corporation believed to possess profit-sharing funds owed
to her former husband. Unlike the instant case, the wife did not have the benefit of a
judgment which set forth precisely the amount of unpaid alimony. Nothing in Sauls
prohibits a judgment creditor from executing on such a judgment.