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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
ALICE GWEN NUTTER,
Plaintiff Below, Appellee
MICHAEL WAYNE NUTTER,
Defendant Below, Appellant
Appeal from the Circuit Court of Jackson County
The Honorable David W. Nibert, Judge
Civil Action No. 86-C-273
Submitted: February 28, 2006
Filed: March 30, 2006
Alice Gwen Nutter, Michael
Kimberly D. Bentley
Charleston, West Virginia
Attorney for the West Virginia Department
of Health and Human Services, Bureau for
Child Support Enforcement
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. When this Court reviews challenges
to the findings and conclusions of the circuit court, a two-prong deferential
standard of review is applied. We review the final order and the ultimate disposition
under an abuse of discretion standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard. Syl. Pt. 1, McCormick
v. Allstate Insurance Co.
, 197 W.Va. 415, 475 S.E.2d 507 (1996).
2. This Court reviews the circuit court's
final order and ultimate disposition under an abuse of discretion standard. We
review challenges to findings of fact under a clearly erroneous standard; conclusions
of law are reviewed de novo
. Syl. Pt. 4, Burgess v. Porterfield
196 W.Va. 178, 469 S.E.2d 114 (1996).
This is an appeal by Michael W. Nutter (hereinafter Appellant)
from a decision of the Circuit Court of Jackson County regarding the Appellant's
child support obligations. The order from which the Appellant appeals, entered
April 24, 2004, held that the Appellant was entitled to a refund of $437.93 from
the Bureau for Child Support Enforcement (hereinafter Bureau). The
Appellant contends that the lower court's prior June 30, 2003, finding of negligent
handling of accounts on the part of the Bureau should have resulted in a monetary
damages award for personal stress and wage losses for the Appellant and his current
wife. Upon thorough review of the briefs, arguments, record, and applicable precedent,
this Court affirms the lower court's April 24, 2004, order.
I. Factual and Procedural History
On April 10, 1987,
the Appellant and Alice Gwen Nutter were granted a divorce, and custody of
their son Justin (See footnote
was granted to Mrs. Nutter. In addition to the child support
owed in the Alice Nutter case, the Appellant also owed child support to a previous
wife, Linda Nutter Wiblin. The record reflects that the Appellant failed to
pay the required child support in both the Wiblin and Nutter accounts and accumulated
a child support
arrearage. (See footnote
The Bureau was apparently inefficient in maintaining records
recording which monetary amounts ultimately paid by the Appellant should be
attributed to each of the two child support obligation accounts. (See
A February 6, 2003, audit (See
definitively concluded that the Appellant owed $1,775.89
in child support to Alice Nutter, plus $1,372.02 in interest on the underpayment
through January 19, 2003. The post January 19, 2003, financial situation was
to be determined at a later date.
By order entered June 30, 2003,
the lower court approved the findings of the February 6, 2003, audit and specifically
declared that the Bureau had been negligent in misapplying payments between
the Nutter account and the Wiblin account. (See
The credit for payments made by the Appellant subsequent
to January 19, 2003, the date of the last
calculations included in the audit, was to be determined after the June 30,
2003, order. Neither party appealed the June 30, 2003, order.
It is from an April 24, 2004, lower
court order that the Appellant currently appeals. That order held that based
upon the payments received from the Appellant subsequent to January 19, 2003,
the Appellant was entitled to a refund of $437.93 from the Bureau. The Bureau
has affirmed that such amount has been paid to the Appellant. The April 24,
2004, order also denied the Appellant's request for attorney fees.
On August 25, 2004, the Appellant filed an
appeal of the April 24, 2004, order to this
Court. The Appellant contends
that the lower court's June 30, 2003, finding of negligence on the part of the
Bureau should have warranted monetary damages to be paid by the Bureau to the
Appellant. He explains that freezes were wrongly placed on his checking and savings
accounts; income tax refunds were unfairly intercepted; and employment time was
lost due to the difficulties created by the Bureau's inefficiency. By letter
to this Court dated August 10, 2005, the Appellant, acting pro se, requested
damages in the amount of $1,173,500.00. By letter dated September 12, 2005, the
Appellant asserted his desire to file a civil action against the Bureau, seeking
$1,173,500.00 in damages.
In response to the Appellant's petition for
appeal, the Bureau filed a cross assignment of error asserting that this case
should be dismissed since the June 30, 2003, finding of negligence was never
appealed. However, the Bureau further asserts that if this Court does act on
this matter, the Bureau seeks a remand for recalculation of the amount owed to
Mr. Nutter. The Bureau contends that the audit erroneously based its calculations
upon notices to income withhold rather than upon the actual court-ordered
child support orders. The Bureau argues that the actual child support obligations
are more accurately reflected in the court orders, rather than the income withholding
notices used by the auditors.
II. Standard of Review
In considering the appeal
of a circuit court's order, this Court employs a two-pronged deferential standard:
this Court reviews challenges to the findings and conclusions of the circuit
court, a two-prong deferential standard of review is applied. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly erroneous
Syl. Pt. 1, McCormick v. Allstate Insurance Co., 197 W.Va. 415, 475
S.E.2d 507 (1996). This Court is also guided by our consistently stated rule
that [t]his Court reviews the circuit court's final order and ultimate
disposition under an abuse of discretion standard. We review challenges to
findings of fact under a clearly erroneous standard; conclusions of law are
reviewed de novo. Syl. Pt. 4, Burgess v. Porterfield, 196
W.Va. 178, 469 S.E.2d 114 (1996).
The posture in which this
case is presented must be addressed at the outset of this evaluation. The June
30, 2003, finding of negligence on the part of the Bureau was not appealed
by either party. Thus, the only matters properly before this Court on appeal
are those contained in the April 24, 2004, order. That properly appealed order
set forth the reimbursement amount owed to the Appellant as $437.93 and declined
to extend attorney's fees to the Appellant. The Appellant now seeks damages
in the amount of $1,173,500.00, apparently based upon the prior finding of
negligence that was not appealed.
This Court has no jurisdiction to award damages
to the Appellant based upon the lower court's prior order finding negligence
in the Bureau's record keeping. First, the order regarding the negligence of
the Bureau was not appealed, (See
and second, this Court, as an appellate court, has no
authority to provide a litigant with a damages award where the lower court did
not address the issue of damages. See Tiernan v. Charleston Area Med.
., 203 W.Va. 135, 150 n. 27, 506 S.E.2d 578, 593 n. 27 (1998) ('This
Court will not pass on a nonjurisdictional question which has not been decided
by the trial court in the first
instance.' (citation omitted)); Syl. Pt. 2, Trent v. Cook
W.Va. 601, 607, 482 S.E.2d 218, 224 (1996) ('[T]he Supreme Court of Appeals
is limited in its authority to resolve assignments of nonjurisdictional errors
to a consideration of those matters passed upon by the court below and fairly
arising upon the portions of the record designated for appellate review.' (citations
omitted)); Syl. Pt. 17, State v. Thomas
, 157 W.Va. 640, 203 S.E.2d 445
(1974) (As a general rule, proceedings of trial courts are presumed to
be regular, unless the contrary affirmatively appears upon the record, and
errors assigned for the first time in an appellate court will not be regarded
in any matter of which the trial court had jurisdiction or which might have
been remedied in the trial court if objected to there.).
With respect to the lower court's order denying
attorney's fees to the Appellant, our review clearly demonstrates that the lower
court was correct. West Virginia Code § 48-18-108(d) (Supp. 2005) explicitly
provides that [n]o court may order the Bureau for Child Support Enforcement
to pay attorney's fees to any party in any action brought
pursuant to this chapter. (See
We consequently affirm the lower court's order denying
the Appellant attorney's fees.
The Bureau filed a cross-assignment of error
regarding the alleged error in the audit utilized to calculate the refund owed
to the Appellant. Upon review, this Court concludes that because the Bureau did
not appeal the June 30, 2003, lower court approval of the audit, this Court has
no jurisdiction to entertain arguments regarding the methodology utilized in
the audit procedures. We therefore decline to address the matters raised in the
Bureau's cross-assignment of error.
As a final matter to be recognized, it appears
from the record that the Appellant sought relief in an action seeking insurance
benefits through the Bureau's insurer, AIG Claim
Services, Inc., Property/Casualty Claim Division. (See
The Appellant's action was not initially successful,
and the record is unclear regarding the current posture of that insurance claim. (See
Having reviewed the matters asserted by the
Appellant in this appeal, this Court finds that the lower court's order of April
24, 2004, should be affirmed in its entirety.
The Appellant's child
support obligation to Justin Nutter terminated with Justin's high school
graduation in May 2002.
As emphasized by the
Bureau, it must be observed that the confusion in the Appellant's payments
originated in the Appellant's own failure to make all payment of child support
in a timely manner.
The record reflects that
the Linda Wiblin account was finalized in February 2000 with a finding of
the Wood County Circuit Court that the Appellant was entitled to a refund
from the Bureau for overpayments in the Linda Wiblin account. At that time,
despite the fact that an arrearage existed in the Alice Nutter account, the
Appellant was reimbursed for his overpayments in the Wiblin account.
The audit was performed
by the independent accounting firm of McDonough, Eddy, Parsons & Baylous.
The audit was based upon the income withholding orders submitted to the Appellant's
sources of income by the Bureau.
The June 30, 2003, order
specifically stated as follows: The Court finds that the Bureau of
Child Support Enforcement was negligent in misapplying payments between the
Wiblin and Nutter accounts.
W. Va. Code § 58-5-4
(1998) (Repl. Vol. 2005).
Prior to the promulgation
of that statute, this Court had also ruled that no statutory authority existed
for the granting of attorney fees against the predecessor to the Bureau,
the Child Advocate Office. In State ex rel. Division of Human Services
v. Benjamin P.B.,
190 W.Va. 81, 436 S.E.2d 627
(1993), this Court
found that attorney fees could not properly be assessed
Child Advocate Office because no statutory authority existed which would
permit the recovery of attorney fees in that paternity action and because
the Bureau's actions were not per se oppressive for purposes of awarding
attorney fees. 190 W.Va. at 84, 436 S.E.2d at 630.
This Court previously
explained in Parkulo v. West Virginia Board of Probation, 199 W.Va.
161, 483 S.E.2d 507 (1996), that the State Board of Risk and Insurance Management
is authorized to purchase insurance providing coverage of all State property,
activities and responsibilities. 199 W.Va. at 168, 483 S.E.2d at 514.
In syllabus point two of Pittsburgh Elevator Co. v. West Virginia Board
of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), this Court held that [s]uits
which seek no recovery from state funds, but rather allege that recovery
is sought under and up to the limits of the State's liability insurance coverage,
fall outside the traditional constitutional bar to suits against the State. This
Court also recognized as follows in syllabus point one of Eggleston v.
West Virginia Department of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993),
this Court held as follows:
Code, 29-12-5(a) (1986), provides an exception for the State's constitutional
immunity found in Section 35 of Article VI of the West Virginia Constitution.
It requires the State Board of Risk and Insurance Management to purchase or contract
for insurance and requires that such insurance policy shall provide that
the insurer shall be barred and estopped from relying upon the constitutional
immunity of the State of West Virginia against claims or suits.
The record before this
Court relates directly to the Appellant's divorce and child support issues
and does not contain detailed information regarding the Appellant's claim for
insurance proceeds. It does, however, contain a letter from AIG Claim Services,
Inc., insurer for the Bureau, dated August 12, 2004. That letter advises the
Appellant that the documentation reviewed by AIG did not bring to light
any additional facts that would cause us to be able to change our position
on this claim. The record does not contain any information regarding
subsequent action by the Appellant or AIG on this claim.