IN THE SUPREME COURT OF APPEALS OF
January 1998 Term
PAMELA JANE GRIFFIS,
JAMES LYLE GRIFFIS,
CHILD SUPPORT ENFORCEMENT DIVISION
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
KIMBERLY O. SHREVE,
STEVE ALLEN SHREVE,
CHILD SUPPORT ENFORCEMENT DIVISION
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
SHIRLEY DIANN MITCHELL,
THOMAS G. MITCHELL,
CHILD SUPPORT ENFORCEMENT DIVISION
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
Certified Question from
the Circuit Court of Boone County
Honorable E. Lee Schlaegel, Jr., Judge
Civil Action Nos. 80-C-7844, 94-D-217 and 88-C-95
CERTIFIED QUESTIONS ANSWERED
Submitted: April 28, 1998
Filed: May 21, 1998
Ilene S. Schnall, Deputy In-House Counsel
Charleston, West Virginia
Attorney for the Plaintiff,
West Virginia Department of Health and Human Resources,
Child Support Enforcement Division
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
the parents of a minor child or children marry or remarry, any
sums of child support subsequently due under a preexisting child
support order, entered by a court of competent jurisdiction,
regarding that child or children, automatically terminates and no
further child support will accrue under that order from the date
of the subsequent marriage forward. However, where the parties do
not marry or remarry, but simply cohabit, the preexisting order
does not automatically terminate, but remains in full effect, and
the child support obligation continues as defined in the order.
a valid court order requires payment of child support by one
parent to another, and the parent who is required to make such
payments has failed to make any or all of the required child
support payments, the subsequent marriage or remarriage of the
parents does not operate to nullify the arrearages that
accumulated prior to such marriage or remarriage.
3. When a parent has assigned to the state child support arrearages that accumulated pursuant to a valid court order prior to the marriage of parents or remarriage of divorced parents, the subsequent marriage or remarriage of the parents does not inhibit the state's right to collect the child support arrearages.
Davis, Chief Justice:
In this case, two
identical questions were certified to this Court by the Circuit
Court of Boone County in three separate cases. These questions
ask us to determine the effect of the marriage, remarriage or
cohabitation of parents on a valid preexisting order for child
support and on unpaid child support that accrued prior to the
marriage or remarriage of the parents. We conclude that the
marriage or remarriage of parents automatically terminates the
preexisting child support order; however, mere cohabitation does
not. We further conclude that child support arrearages that
accumulated prior to the marriage or remarriage of the parents
are not nullified as a result of the marriage or remarriage.
FACTUAL AND PROCEDURAL HISTORY
Three children had been born of the marriage of James and Pamela Griffis by the time they divorced in June of 1979. At the time of the divorce, the three children were approximately eleven, four-and-one-half, and two-and-one-half years old. The divorce decree granted custody of the three minor children to Pamela Griffis and ordered James Griffis to pay child support in the amount of $166 per child, per month, for a total monthly support amount of $498. James failed to make any of the ordered child support payments. Pamela received assistance from Aid to Families with Dependent Children [hereinafter "AFDC"] for the months of June and July, 1979.
In June, 1980, the
couple remarried. By this time, James was in arrears on his child
support obligation in the amount of $6,141.13.See footnote 1 1 Upon
the remarriage of the couple, the Boone County office of the
Child Support Enforcement Division [hereinafter "CSED"]See footnote 2 2 ceased
calculating James' child support obligation. In addition to the
child support arrearages, James owed the State $498 for the
aforementioned AFDC benefits.
Thereafter, in February
1981, the couple divorced a second time. Custody of the minor
children was again awarded to Pamela. James was ordered to pay
child support in the amount of $167 per child, per month, for a
total monthly support amount of $501. Once again, James failed to
make any child support payments. Pamela received AFDC benefits
from June, 1982, through February, 1984.
In May, 1984, the
couple married a third time. The amount of child support that had
accrued, but was not paid by James, between the couple's second
divorce and third marriage was $19,630.87. James also owed the
State $4,482 for the AFDC benefits Pamela received between June,
1982, and February, 1984.
At some point,
proceedings directed toward a third divorce were initiated.
However, the action was dismissed due to the couple's
reconciliation. James and Pamela remain legally married. CSED
records indicate that James currently owes Pamela a total of
$61,741.90 in child support arrears and owes the State a total of
$581.83 for AFDC benefits paid to Pamela.See footnote 3 3
Kimberly O. and Steve A. Shreve were married in July, 1975. On September 8, 1987, the couple separated. Kimberly requested public assistance. The assistance was approved on September 11, 1987. Kimberly and Steve were granted a divorce by order of the Circuit Court of Boone County in November, 1987. Kimberly was awarded custody of the couple's two children, who were then approximately seven-and- one-half and three-and-one-half years old. Steve was ordered to pay Kimberly $249 per month in child support. Steve fulfilled his child support obligation until June, 1988, when he and Kimberly reconciled.See footnote 4 4 Apparently due to this reconciliation, the CSED ceased tabulation of Steve's child support obligation in June, 1988.See footnote 5 5 The couple remarried in August, 1991.
Kimberly and Steve
separated a second time in August, 1994, and Kimberly applied for
AFDC benefits. As a result of the AFDC application, there was an
automatic referral to the CSED and a child support case was
opened. Kimberly filed for divorce in October, 1994, and the CSED
began collecting child support payments from Steve in December,
1994. By temporary order, the Circuit Court of Boone County
awarded custody of one of the couple's two children to Kimberly,
and Steve was awarded custody of the other child. In addition,
Steve was ordered to pay Kimberly $450 per month for support of
the child in Kimberly's custody.See footnote 6 6 The divorce became
final in August, 1996. The provisions for child custody and
support that were provided in the temporary order were repeated,
without modification, in the final order granting the divorce. As
of June 1, 1997, Steve was in arrears to Kimberly in the amount
By an order entered on October 2, 1978, the Circuit Court of Boone County found that Thomas G. Mitchell was the father of a child born to Shirley Mitchell on September 8, 1975. Pursuant to the order, Thomas was required to pay Shirley $75 per month for support of the child. The payments were to begin on October 1, 1978. Also in October, 1978, Shirley began receiving AFDC benefits. She continued receiving AFDC benefits through March, 1979. As a result of the AFDC benefits paid to Shirley, Thomas owed the State of West Virginia $300. Meanwhile, in November, 1978, a second child was born to Thomas and Shirley.See footnote 7 7 The couple married in July, 1979. As a result of the marriage, the CSED ceased calculating Thomas' child support obligation to Shirley. At the time of the marriage, Thomas still owed $300 to the State and also owed Shirley $302.27 in unpaid child support.
The couple subsequently
divorced in April, 1988. Custody of the couple's two minor
children was awarded to Shirley, and Thomas was ordered to pay
Shirley $200 per month for support of the two children. Shirley
again received AFDC benefits from April, 1988, through May, 1989,
and from February, 1990, through December 1990. The AFDC benefits
received by Shirley created a corresponding debt for Thomas in
the amount of $5,000.
Shirley and Thomas were
married a second time in December 1990. The CSED again ceased
calculations on the child support obligation upon the remarriage
of the couple. At that time, Thomas was indebted to the State in
the amount of $5,147. He also owed Shirley $2,415.48 in unpaid
child support. Thereafter, Thomas and Shirley separated again in
August, 1995. Following the separation, Shirley received AFDC
benefits from September, 1995, through December, 1996. No order
for child support has been entered since this separation. As of
June 1, 1997, Thomas owed Shirley $4,024.24 in child support
arrears and owed the State $5,147See footnote 8 8 for AFDC benefits
received by Shirley.
In each of the above described cases, the CSED motioned the circuit court to certify certain questions of law to this Court for resolution. Deciding these motions by three separate orders,See footnote 9 9 the circuit court certified two questions to this Court. Because the questions certified in each case are identical, we have consolidated the cases on appeal for the purpose of addressing the following questions certified by the Circuit Court of Boone County:
Whether either divorce order automatically terminated upon the cohabitation, marriage, or re-marriage of the parties?
Answer of the Circuit Court
Each divorce order terminated automatically upon the marriage or re-marriage of the parties, but not upon cohabitation.
Whether child support arrearages were eliminated upon the cohabitation, marriage, or re-marriage of the parties?
Answer of the Circuit Court
Child Support arrearages were eliminated upon the marriage or re-marriage of the parties, with the exception of arrearages that were assigned to the State of West Virginia. Arrearages were not eliminated upon the cohabitation of the parties.
Pursuant to our
authority to do so, we rephrase the certified questions before us
as follows:See footnote 10
When the parents of a minor child or children marry, remarry or cohabit, does any pre-existing child support order/obligation regarding the child or children automatically terminate with respect to payments thereafter accruing?
When a court order requires payment of child support by one parent to another, and the parent who is required to make such payments has failed to make any or all of the required child support payments, does the marriage,
remarriage or cohabitation of the parents
operate to nullify the accumulated arrearages?
Before this Court, the
CSED contends that no statutes or cases in West Virginia squarely
deal with issues regarding the status of child support and child
support arrearages upon the marriage, remarriage or cohabitation
of the parents. It further submits that its field offices resolve
such issues on a case by case basis, which results in
inconsistent resolutions. The CSED also argues that there is a
lack of consistency among the various circuit courts of this
state in dealing with these issues.
STANDARD OF REVIEW
We have repeatedly stated that we apply a de novo standard when reviewing certified questions. See Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996) ("The appellate standard of review of questions of law answered and certified by a circuit court is de novo."). See also Potesta v. United States Fidelity & Guar. Co., ___ W. Va. ___, ___, ___ S.E.2d ___, ___, slip op. at 9-10 (No. 24441 May 15, 1998) (citing Gallapoo); Syl. pt. 1, Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (1997) (same).
A. When the parents of a minor child or children marry, remarry or cohabit, does any pre-existing child support order/obligation regarding the child or children automatically terminate with respect to payments thereafter accruing?
The Circuit court
answered this question by ruling, in essence, that when parents
of a child or children marry or remarry, any pre-existing child
support order regarding the child or children automatically
terminates; however, such an order does not terminate if the
parents merely cohabit. The CSED urges us to adopt the circuit
This certified question
presents an issue that has not previously been addressed by this
Court. In answering this question, we first consider the effect
of the remarriage of a divorced couple on the child support
provisions contained in the original divorce decree. The CSED
submits that the circuit court's ruling on this issue represents
the majority rule. Indeed, our review of this area of the law
reveals that the general rule is that the remarriage of divorced
parents to each other automatically nullifies child custody and
support provisions contained in a previously entered order
dissolving a prior marriage.See footnote 11 11
The Supreme Judicial
Court of Maine was asked to resolve this issue in Palacci v.
Palacci, 613 A.2d 951 (Me. 1992). Stating that the issue was
one of first impression, the Palacci court went on to
observe "[t]he great majority of jurisdictions that have
addressed the issue have held that on remarriage, a prior order
of child support becomes unenforceable." Id. at 953
(citing Ringstrom v. Ringstrom, 101 Ill. App. 3d
677, 57 Ill. Dec. 193, 193-194, 428 N.E.2d 743, 744-45
(1981); and indicating that the Ringstrom opinion
contained citations for other cases in accord).
Similarly, in Davis
v. Davis, 68 Cal. 2d 290, 292, 66 Cal. Rptr. 14,
15-16, 437 P.2d 502, 503 (1968), the Supreme Court of California
[T]he rule as developed in other jurisdictions is that if the parties again intermarry[,] child custody and support orders as between themselves are thereupon terminated, as well as the jurisdiction of the court to enforce such orders, and that this is true whether or not the parents subsequently divorce again. (See Lockard v. Lockard (1951) 63 Ohio L. Abs. 549, 49 Ohio Ops. 163 [102 N.E.2d 747, 748]; McDaniel v. Thompson (Tex. Civ. App., 1946) 195 S.W.2d 202, 203-204; Jenkins v. Followell (Okla., 1953) 262 P.2d 880, 882; Dunlap v. Dunlap (1923) 88 Okla. 200 [212 P. 608, 609]; Ex parte Phillips (1957) 266 Ala. 198 [95 So.2d 77]; Eppes v. Covey (Fla. App., 1962) 141 So.2d 747, 748; Rasch v. Rasch (1964) 250 Miss. 885 [168 So.2d 738, 743]; Lowe v. Lowe (1909) 53 Wash. 50 [101 P. 704, 705]; Oliphant v. Oliphant (1928) 177 Ark. 613 [7 S.W.2d 783, 786-787]; Cain v. Garner (1916) 169 Ky. 633 [185 S.W. 122, Ann. Cas. 1918B 824, L.R.A. 1916E 682]; 27B C.J.S., Divorce, § 323, subd. h, p. 730; 24 Am. Jur. 2d, Divorce and Separation, § 805, p. 915.).(Footnote omitted). The Davis court recognized that some of the cases it cited in the opinion spoke "only of custody"; however, the court explained the relevancy of these cases by noting that "a custody award to [one parent] ordinarily carries with it a support order against the [other parent]." Davis at 292, 66 Cal. Rptr. at 15-16, 437 P.2d at 504. See also In re Marriage of Doria, 855 P.2d 28, 29-30 (Colo. Ct. App. 1993) ("As a general rule, when the parties to a divorce remarry each other, the court's jurisdiction over the parties is terminated and the provisions of the prior decree for matters of child support, custody, and maintenance are nullified." (citations omitted)); Warren v. Warren, 213 Ga. 81, 81, 97 S.E.2d 349, 350 (1957) ("The remarriage of the parties nullified the [divorce] decree . . . and restored the parental rights of the parties to the same extent as if no divorce had ever been granted." (citations omitted)); Hildebrand v. Hildebrand, 239 Neb. 605, 609, 477 N.W.2d 1, 4 (1991) (commenting "[w]e agree with the statement in Schaff v. Schaff, 446 N.W.2d 28, 31 (N.D. 1989), that 'if the parties to a divorce decree remarry each other, they no longer have separate rights of custody and separate obligations for future support; rather, the same joint rights to custody and joint obligations for future support which antedated the divorce are resumed,'" (additional citations omitted); and concluding that "[w]hen the parties to this action remarried . . . all future child support obligations under the [prior divorce decree] were terminated"); Slape v. Slape, 553 S.W.2d 171, 173 (Tex. App. 1977) ("the remarriage of divorced parties renders ineffective or inoperative the provisions in a divorce decree relating to custody of children" (citations omitted)). See generally 24 Am. Jur. 2d Divorce and Separation § 992, at 985 (1983) ("If the parties again intermarry after the granting of a divorce and order for custody, the order for custody is rendered inoperative."); 27C C.J.S. Divorce § 692, at 323 (1986) ("A remarriage between the parties themselves ordinarily terminates the jurisdiction of the court with respect to maintenance of their children.").
The rationale for this
rule was fittingly explained by the Missouri Court of Appeals in In
re Marriage of Root, 774 S.W.2d 521 (Mo. Ct. App.
1989). In that case the Missouri court impliedly adopted the
general rule, reasoning:
It would be absurd to hold that once parents remarry each other and the family is again intact and residing in the same household, the former noncustodial parent must pay future installments of child support to the other parent per the past divorce decree. That is to say, the remarriage should terminate the former noncustodial parent's duty to pay any child support that would have become due after the remarriage.Id. at 523. Another court has similarly explained that:
When previously divorced parties remarry, the "parties are restored to their rights as if they had never been divorced. After remarriage, the parties' relationship to the children and the duty to furnish support become exactly as they were before the divorce and upon the showing of remarriage, judgment for custody or for an amount for support of the children cannot be maintained based on the prior decree."Palacci v. Palacci, 613 A.2d 951, 953 (citations omitted).
In addition to
determining the effect the remarriage of divorced parents has on
child support awarded in conjunction with a prior divorce, we are
further asked to determine the effect of a marriage on a prior
order mandating child support when the parents were not
previously married. We find no reason to alter the general rule
under these circumstances. At least one court has reached this
conclusion in a case involving a child support judgment that was
entered as part of a paternity proceeding, as opposed to child
support in connection with a divorce, where the parents were
married subsequent to the child support judgment. Schaff v.
Schaff, 446 N.W.2d 28 (N.D. 1989).
The parties to the Schaff
case had a child prior to their marriage. A paternity judgement
was entered against the father, and he was ordered to pay child
support.See footnote 12 12
Approximately one year later, the couple married. During a
subsequent divorce proceeding, issues involving the previous
child support order were raised. The court found that the factual
scenario before it was like that of divorced parents who remarry
each other. The court recognized that "[g]enerally, when
divorced persons remarry each other, their remarriage nullifies
the divorce court's order for child
custody . . . and future installments of
child support." Schaff at 31. (citations omitted)
(footnote omitted). The court reasoned that "if the parties
to a divorce decree remarry each other, they no longer have
separate rights of custody and separate obligations for future
support; rather, the same joint rights to custody and joint
obligations for future support which antedated the divorce are
resumed." Id. (citations omitted). The Schaff
court further observed:
The paternity action, as well as the divorce action, each involves a determination of the separate rights and liabilities of parents for their children. While a paternity action and a divorce action establish the separate rights and liabilities of parents, those parents' subsequent marriage or remarriage establishes anew the parents' joint rights and liabilities for custody and support of their children replacing their former separate rights and liabilities.
Id. at 32. The court went on to hold:
[W]hen parents of a
child born out-of-wedlock marry each other, the child custody and
future support provisions of the paternity judgment are nullified
and replaced by the law governing the rights and obligations of
married parents to their children. If those parents subsequently
seek a divorce, the divorce laws are then applicable to the
determination of child custody and support.
Id. (footnote omitted). Thus, it appears the marriage of a minor child's previously un-wed parents would likewise extinguish any pre-existing order of child support decreed for the benefit of such child.
With respect to the
impact of the parents' cohabitation on an existing child support
obligation, the CSED suggests that little has been said about
this issue in any jurisdiction. While the CSED does not cite any
case law, it suggests two policy reasons for adopting the rule
that cohabitation of the parents should not terminate child
footnote 13 13First, the CSED argues that it is
easier to cohabit than to marry or remarry, thus cohabiting
couples are more likely to separate and then reunite.
Consequently, the resulting onslaught of cases would create an
accounting nightmare for CSED. Second, one parent may force the
other, through domestic violence, to cohabit or to commit fraud
by asserting a non-existent reconciliation. The CSED contends
that because it is easier to cohabit than to marry, the risk of
coercion is greater.
We find that the
substantial differences that exist between marriage and
cohabitation unquestionably compel the conclusion that
cohabitation, without marriage, is insufficient to automatically
nullify the provisions of an existing court order related to
child custody and support. Since common law marriages may not be
validly formed in this State, Goode v. Goode, 183
W. Va. 468, 396 S.E.2d 430 (1990),See footnote 14 14 cohabitation
does not legally unite a family as does marriage. Furthermore,
cohabitation simply does not require the same formalities as
marriage.See footnote 15 15
More important than the formalities of entering the bond of
marriage, though, are the formalities required to terminate the
marriage. See W. Va. Code §§ 48-2-1 et seq. In this
regard, we find it significant that termination of a marriage
requires a legal procedure that includes built-in protections for
the best interests of the parties' child or children. See,
e.g., State ex rel. Paul B. v. Hill, ___ W. Va.
___, ___, 496 S.E.2d 198, 207, (1997) ("Tempered with the
State's parens patriae interest is the court's obligation
to consider the 'best interests of the child [as]
paramount.'" (citations omitted)); Carter v. Carter,
196 W. Va. 239, 246, 470 S.E.2d 193, 200 (1996)
("In . . . custody matters, we have
traditionally held paramount the best interests of the child, a
position from which we will not deviate." (citations
Upon the termination of
a marriage or second marriage between parents, custody and
support issues will be visited anew. See W. Va. Code
§ 48-2-15 (1996) (Repl. Vol. 1996). Thus, the child will not be
harmed by the fact that an earlier child support order was
terminated upon the marriage or remarriage of the parents. There
is no such protection in place when a couple ceases to cohabit.
Consequently, if cohabitation were sufficient to terminate a
prior order of child support, a child could, and most likely
would, be significantly harmed if and when his or her parents
cease to cohabit. In the absence of a legally significant
unification of the family, we must decline to find that the
provisions of a court order mandating child support are
We therefore hold that
when the parents of a minor child or children marry or remarry,
any sums of child support subsequently due under a preexisting
child support order, entered by a court of competent
jurisdiction, regarding that child or children, automatically
terminates and no further child support will accrue under that
order from the date of the subsequent marriage forward. However,
where the parties do not marry or remarry, but simply cohabit,
the preexisting order does not automatically terminate, but
remains in full effect, and the child support obligation
continues as defined in the order.
B. When a court order
requires payment of child support by one parent to another, and
the parent who is required to make such payments has failed to
make any or all of the required child support payments, does the
marriage, remarriage or cohabitation of the parents operate to
nullify the accumulated arrearages?
The Circuit Court of
Boone County answered this question by ruling that when a court
order requires payment of child support by one parent to another,
and the parent who is required to make such payments has failed
to make any or all of the required child support payments, the
marriage or remarriage of the parents operates to nullify the
accumulated arrearages; however, the mere cohabitation of the
parents does not operate to nullify such arrearages. In addition,
the court ruled that arrearages that are assigned to the State of
West Virginia are not eliminated by the marriage, remarriage or
cohabitation of the parents.
The CSED urges us to
answer this question in the negative. The CSED argues that
nullifying child support arrears is inconsistent with West
Virginia law and contrary to the weight of authority from other
jurisdictions. While there is apparently no case law addressing
this precise issue, the CSED notes that in Syllabus point 2 of Goff
v. Goff, we held:
The authority of the circuit courts to modify alimony or child support awards is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a circuit court is without authority to modify or cancel accrued alimony or child support installments.
177 W. Va. 742, 356 S.E.2d 496 (1987). The CSED also argues that in West Virginia, child support payments vest as they accrue. Citing Carter v. Carter, 198 W. Va. 171, 175, 479 S.E.2d 681, 685 (1996). See also W. Va. Code § 48A-5-2(a) (1997) (Supp. 1997) ("The total of any matured, unpaid installments of child support required to be paid by an order entered or modified by a court of competent jurisdiction, or by the order of a magistrate court of this state under the prior enactments of this code, shall stand, by operation of law, as a decretal judgment against the obligor owing such support. . . . A child support order shall not be retroactively modified so as to cancel or alter accrued installments of support."); Goff v Goff, at 747, 356 S.E.2d at 501 ("In the case of alimony or child support installments, the judgments mature on the dates the payments are due, and no ancillary proceedings are necessary to reduce the amount of those judgments to a sum certain." (citations omitted)). The CSED notes further that "[a] decretal child support obligation may not be modified, suspended, or terminated by an agreement between the parties to the divorce decree." Syl. pt. 2, Kimble v. Kimble, 176 W. Va.45, 341 S.E.2d 420 (1986).
Considering the above
principles, the CSED argues that "[i]f a circuit court lacks
the authority to retroactively modify a child support obligation,
and the parties cannot by agreement terminate a child support
obligation, a fortiori, the accrued and unpaid child
support payments (which are the vested right of the judgment
holder) may not be eliminated upon the [marriage or] remarriage
of the parties."
The CSED continues by
arguing that, because it is well established in West Virginia law
that marriage does not alter a person's ownership of his/her own
property, W. Va. Code § 48-2-1(f)(1992) (Repl. Vol. 1996),
and because a property settlement resulting from a divorce does
not change upon the subsequent remarriage of the parties, Syl.
pt. 2, Caldwell v. Caldwell, 177 W. Va. 61, 350
S.E.2d 688 (1986), then, the CSED contends, child support
arrearages which have vested in the person to whom the funds are
due should similarly remain unaltered upon subsequent remarriage
or cohabitation of the parties.
The CSED also asserts
that "[i]f an obligor fails to make ordered support
payments, and the obligee or some public agency assumes that
additional burden, the party who assumed that burden is entitled
to recoup the payment from the obligated party."See footnote 16 16 Citing
Costello v. McDonald, 196 W. Va. 450, 473 S.E.2d 736
(1996). Thus, the CSED argues, the parties' remarriage does not
automatically terminate the rights of the State as the assignee
of the support judgment. Finally, the CSED maintains that it is
sound public policy to hold that a valid judgment in the form of
accrued child support remains enforceable even after the
subsequent marriage, remarriage or cohabitation of the parties.
At the outset, we note our holding in Section III. A of this opinion, that a preexisting order for child support remains in full effect when parents merely cohabit, resolves the present issue as it relates to cohabitation. Since cohabitation does not terminate an existing child support order, it certainly would not nullify child support arrearages accumulated under a fully enforceable order. Therefore, we limit our discussion in this section to the effect the marriage or remarriage of parents has on child support payments that accrued prior to such marriage or remarriage. Before we conclusively resolve this issue, we first review how other jurisdictions have addressed this matter.
In Scheibel v. Scheibel, the Supreme Court of Nebraska was asked "whether the subsequent remarriage of parties operates as a matter of law, independent of any other circumstances, to automatically bar any action for child support not paid between the time of [a] first decree of divorce and [a] subsequent remarriage." 204 Neb. 653, 654, 284 N.W.2d 572, 573 (1979). The court answered this question in the negative. Furthermore, in response to the noncustodial parent's assertion that the claim for child support arrearages was barred by latches, the court explained that the mere passage of time was insufficient, without an additional showing of prejudice, to support a claim of latches. Id. Finally, the court held:
In the absence of any evidence whatever that the appellant was materially prejudiced by the delay in the assertion of the claim for support, we decline to hold that the remarriage of the parties will operate as a matter of law to prohibit the party for whose benefit the support was ordered from instituting action to collect the arrearages.
The Supreme Court of
Iowa has reached a similar result. The case before the Iowa court
involved a mother's pursuit of child support arrearages where the
parents divorced, the husband became delinquent on his related
child support obligation, and then the parents remarried. Greene
v. Iowa Dist. Court for Polk County, 312 N.W.2d 915 (Iowa
1981). The arrearages the mother sought to recover were incurred
between the divorce and subsequent remarriage. The court observed
that the California Supreme Court, when faced with a similar
question, found that the remarriage of parents "nullifies
the [divorce] decree and terminates the jurisdiction of the court
to enforce an order of child support." Id. at 917
(citing Davis v. Davis, 68 Cal. 2d 290, 290, 66
Cal. Rptr.14, 15, 437 P.2d 502, 503 (1968)). Nevertheless,
the Greene court declined to follow its interpretation of
the rule established by the California court, and, after
reviewing other cases similarly declining to apply the California
rule, the Greene court explained, "an award of child
support is to provide the custodial parent with a money judgment.
Each installment becomes a judgment when
due. . . . Accrued installments thus become
the vested right of the spouse entitled to the support and may
not be taken away." Greene at 918. The Greene
court concluded that the pre-remarriage child support judgment
was enforceable as to unpaid arrearages.
The Greene case
involved an added element. The arrearages were not due to the
mother, as she had assigned her right to the support payments to
the Iowa Department of Social Services in exchange for welfare
benefits. Thus, the Iowa Department of Social Services ultimately
received the benefit of the enforcement of the child support
judgment. While this case demonstrates that when the right to
accrued child support installments has been assigned to the
state, the right is still enforceable, the court did not limit
its holding to the particular scenario before it. Rather, the Greene
court recognized generally that pre-remarriage child support
judgments are enforceable as to unpaid arrearages.See footnote 17 17
We are inclined to
agree with the reasoning and result contained in Greene;
however, we disagree with that court's interpretation of Davis
v. Davis. The court in Greene indicated that the
California rule adopted in Davis differed from the rule
being adopted in Iowa. On the contrary, we find that the Davis
opinion supports the conclusion reached by the Iowa court. In Davis,
the wife sought to collect child support payments for the period
"between the separation that followed the remarriage, and
the second support order," based upon the support order
entered in connection with the parties' first divorce. Davis
at 291, 66 Cal. Rptr. at 15, 437 P.2d at 503. In
other words, she sought to rely on a pre-remarriage child support
order to collect child support that she claimed accrued after
the parties remarried. The Davis court held that "the
remarriage [to each other of divorced parents] terminated the
support provisions with respect to payments thereafter
accruing." Id. at 290, 66 Cal. Rptr.
at 14, 437 P.2d at 502 (emphasis added). By using the limiting
language "thereafter accruing" in this holding, we
believe the Davis court implied that child support
payments accruing prior to the remarriage would be enforceable.See footnote 18 18
In the case of In re
Marriage of Root, 774 S.W.2d 521 (Mo. App. 1989), the
Missouri Court of Appeals analyzed this issue rather thoroughly.
The Root court discussed several cases that apparently had
reached the conclusion that accrued, yet unpaid, child support
installments were not enforceable after the remarriage of the
parties. However, the court explained that those cases were
factually distinguishable. Two of those cases involved attempts
to collect child support allegedly accruing after the remarriage
of the parties when, as explained in Section III. A
of this opinion, the prior child support order was no longer
19 19 Another involved a couple that filed for
divorce but reconciled before the divorce was final. In that case
the wife attempted to enforce a child support order to collect
support for a period of time after the parties reconciled.See footnote 20 20 In
all of these cases, the parties attempted to collect child
support for a period of time when the parties were married, as
opposed to a period prior to remarriage when the child support
order would have been enforceable. However, the Root court
recognized that at least one court had actually reached the
conclusion that accrued but unpaid child support installments
were not enforceable after the remarriage of the parties.See footnote 21 21 Nonetheless,
the Root court concluded that the better rule recognized
"remarriage does not bar the mother from collecting child
support arrearages that accrued between the divorce and the
remarriage." Root at 527.
Likewise, the Court of
Civil Appeals of Alabama addressed this issue In Hardy v.
Hardy, 600 So. 2d 1013 (Ala. Civ. App. 1992).
The court acknowledged that "[n]either party contends that
the court-ordered child support obligation was due after their
subsequent remarriage. We are only concerned with the period of
time from the original divorce decree . . . to the
date of the remarriage." Id. at 1014. In reaching the
conclusion that a child support order was enforceable as to
arrearages that accrued prior to the remarriage of the parents,
the court explained:
Court-ordered child support payments become final money judgments on the dates that they are due and are thereafter immune from change or modification. . . . Past-due installments of child support are final judgments which may be collected as any other judgment. . . . A trial court may not modify, release, or discharge the obligor of past-due child support once the obligation matures and becomes final under the original divorce decree.
Id. at 1015 (citations omitted).
We find the
aforementioned authorities particularly persuasive. Furthermore,
we believe the law presently existing in this state directs us to
concur with that authority. As the CSED correctly observed, the
circuit courts of this state lack authority to modify or cancel
accrued child support installments, Syl. pt. 2, Goff v. Goff,
177 W. Va. 742, 356 S.E.2d 496 (1987), child support
payments vest as they accrue, Carter v. Carter, 198
W. Va. 171, 175, 479 S.E.2d 681, 685 (1996), and child
support judgments may not be "modified, suspended or
terminated by an agreement between the parties to the
divorce." Syl. pt. 2, Kimble v. Kimble, 176
W. Va. 45, 341 S.E.2d 420 (1986). For these reasons, we hold
that when a valid court order requires payment of child support
by one parent to another, and the parent who is required to make
such payments has failed to make any or all of the required child
support payments, the subsequent marriage or remarriage of the
parents does not operate to nullify the arrearages that
accumulated prior to such marriage or remarriage. Similarly, we
hold that when a parent has assigned to the state child support
arrearages that accumulated pursuant to a valid court order prior
to the marriage of parents or remarriage of divorced parents, the
subsequent marriage or remarriage of the parents does not inhibit
the state's right to collect the child support arrearages.
For the reasons stated in this opinion, we conclude that the marriage or remarriage of parents automatically terminates a preexisting child support order; however, the mere cohabitation of the parents does not. We further conclude that child support arrearages that accumulated prior to the marriage or remarriage of the parents are not nullified as a result of such marriage or remarriage, and the right to collect such arrearages may be asserted, even where that right has been assigned to an agency of this State.
Certified questions answered.
Footnote: 1 1 This amount includes the principal balance of accrued, unpaid child support installments and statutory interest. See Syl. pt. 5, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987) ("Mature alimony and child support installments are judgments for money which accrue statutory interest from the date the payments are due."); W. Va. Code § 56-6-31 (1981) (Repl. Vol. 1997) (mandating, in part, that "every judgment or decree for the payment of money entered by any court of this State shall bear interest from the date thereof."); W. Va. Code § 48A-1-3(a) (1996) (Repl. Vol. 1996) (providing for accrual of interest on outstanding principal of child support obligation).
Footnote: 2 2 We refer to the Child Support Enforcement Division by its statutory name. See W. Va. Code § 48A-2-12 (1997) (Supp. 1997) (establishing Child Support Enforcement Division). We note, however, that under the direction of Joan Ohl, Secretary of the West Virginia Department of Health and Human Resources, the Division operates under the name "Bureau for Child Support Enforcement."
Footnote: 3 3 Income tax intercepts have offset a portion of the State debt.
Footnote: 4 4 Although the couple reconciled, at that time they did not remarry.
Footnote: 5 5 Apparently, prior to the couple's reconciliation, Steve had failed to pay a small tax offset. The tax intercepts for the money owed to the State were received in March, 1993, and the CSED's case on the Shreves was then closed.
Footnote: 6 6 Prior to the temporary order, Steve paid $300 per month in child support.
Footnote: 7 7 Although no formal paternity action was filed at the time of the child's birth,
a subsequent divorce order found that Thomas was the child's father.
Footnote: 8 8 This is the amount of arrearages owed to the State as indicated in the CSED's brief. It appears that this amount does not include the AFDC benefits received by Shirley from September, 1995, to December, 1996. However, there is nothing contained in the record submitted to this Court from which to ascertain the correctness of this amount.
Footnote: 9 9 The "Order of Certification" in the Griffis case was entered on May 6, 1997; similar orders were entered in the Shreve and Mitchell cases on June 2, 1997.
Footnote: 10 10 See W. Va. Code § 51-1A-4 (1996) (Supp. 1997) ("The supreme court of appeals of West Virginia may reformulate a question certified to it."); Syl. pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993) ("When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 , the statute relating to certified questions from a circuit court of this State to this Court."). See, e.g., Potesta v. United States Fidelity & Guar. Co., ___ W. Va. ___, ___, ___ S.E.2d ___, ___, slip op. at 9 n.9 (No. 24441 May 15, 1998).
Footnote: 11 11 While the general rule is that the remarriage of divorced parents to each other automatically nullifies child custody and support provisions contained in a previously entered order dissolving a prior marriage, the impact of the nullification is apparently interpreted somewhat differently among various jurisdictions. See discussion infra Section III. B.
Footnote: 12 12 In this instance, the child support took the form of a lump-sum payment into an annuity that provided the child's mother a monthly dividend until the child reached age eighteen, and "treasury bonds with a future value of $20,000." Schaff v. Schaff, 446 N.W.2d 28, 29 (N.D. 1989). When the child reached eighteen years of age, she was to receive $10,000 of the treasury bonds, with the remaining bonds to be distributed to her when she attained the age of twenty-two. Id.
Footnote: 13 13 The CSED notes that, with respect to case closure criteria, it treats married and cohabiting couples identically. According to the CSED, its written policy states that upon written acknowledgment from cohabiting parties (regardless of their marital status) where no arrearages are due and no wage withholding order is in effect, a CSED case shall be closed. CSED Policy 10000.10(12). A copy of this policy was not included with the record submitted to this Court. Consequently, we cannot conclusively ascertain whether CSED Policy 10000.10(12) is consistent with this opinion; however, based upon the CSED's representations, it appears that it is not. To the extent that CSED policy is inconsistent with this opinion, it is hereby superseded.
Footnote: 14 14 While common law marriages may not be formed in this state, we do recognize the validity of common-law marriages formed in states that permit such marriages. See Goode v. Goode, 183 W. Va. 468, 473 n.8, 396 S.E.2d 430, 435 n.8 (1990) ("Our decision in this case does nothing to alter our recognition of common-law marriages which are contracted in other states and recognized as valid therein. 'The courts of this state will recognize as valid and will accord legal effect to a common-law marriage created or consummated in another state if common-law marriages are recognized as valid in that state.'" (quoting State v. Bragg, 152 W.Va. 372, 375-76, 163 S.E.2d 685, 687-88 (1968))).
Footnote: 15 15 The formalities required of a couple planning to marry include the completion of an application for a marriage licence, W. Va. Code § 48-1-6 (1993) (Repl. Vol. 1996); the issuance of a license, W. Va. Code § 48-1-5 (1969) (Repl. Vol. 1996); the requirement that the licence be filed with the appropriate county clerk, W. Va. Code § 48-1-10 (1969) (Repl. Vol. 1996); and the requirement that the county clerk maintain a record of marriage licenses, W. Va. Code § 48-1-11 (1969) (Repl. Vol. 1996).
Footnote: 16 16 See W. Va. Code § 9-3-4 (1979) (Repl. Vol. 1998) ("Any recipient of financial assistance under the program of state and federal assistance established by title IV of the federal Social Security Act of 1965, as amended, or any successor act thereto, shall, upon receipt of such assistance be deemed to have assigned to the West Virginia department of welfare all rights, title and interest such recipient may have to the receipt of support and maintenance moneys from any person responsible for the support and maintenance of any member of the benefit group.").
Footnote: 17 17 Accord In re Marriage of Root, 774 S.W.2d 521, 525-26 (Mo. Ct. App. 1989) (recognizing that Greene involved the additional element of "the assignment to the state agency by the mother of her right to child support under the dissolution decree," and determining that "[t]he holding in Greene . . . did not rest on the narrow ground that the agency's rights under the mother's assignment could not be impaired by her subsequent remarriage to the father. . . . Greene squarely held that the parties' remarriage did not nullify the claim for accrued installments of child support.").
Footnote: 18 18 Accord Root at 523 (recognizing that Davis v. Davis, 68 Cal. 2d 290, 66 Cal. Rptr. 14, 437 P.2d 502 (1968), involved the attempted collection of post-remarriage child support).
Footnote: 19 19 See Davis v. Davis, 68 Cal. 2d 290, 66 Cal. Rptr. 14, 437 P.2d 502 (attempt to collect post-remarriage child support); Thomas v. Thomas, 565 P.2d 722 (Okla. Ct. App. 1976) (attempt to collect child support for period of time after common law remarriage).
Footnote: 20 20 Rasch v. Rasch, 250 Miss. 885, 168 So. 2d 738 (1964).
Footnote: 21 21 Citing Ringstrom v. Ringstrom, 101 Ill. App. 3d 677, 57 Ill. Dec. 193, 428 N.E.2d 743 (1981). See also Palacci v. Palacci, 613 A.2d 951 (Me. 1992) (concluding that child support order entered in previous divorce becomes unenforceable upon the parents' remarriage and that arrearages are rendered uncollectible).