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674 S.E.2d 248
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
Petitioner Below, Appellant
Respondent Below, Appellee
Appeal from the Circuit Court of Tyler County
The Honorable John T. Madden, Judge
Civil Action No. 94-D-1
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: January 28, 2009
Filed: February 6, 2009
Jodie K. R. Gardill
Gary L. Rymer
Bridge A. Remish
Rymer & Furbee
Middlebourne, West Virginia
Legal Aid of West Virginia
Counsel for the Appellee
Wheeling, West Virginia
Counsel for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
SYLLABUS BY THE COURT
1. In reviewing a final order entered by a circuit court 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).
2. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo
standard of review.
Syl. Pt. 1, Chrystal R.M v. Charlie A.L.
, 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo
review. Syl. Pt. 1, Appalachian Power Co. v. State
Tax Dep't of West Virginia
, 195 W.Va. 573, 466 S.E.2d 424 (1995).
4. The duty of a parent to support a child is a basic duty owed by the parent
to the child[.] Syl. Pt. 3, in part, Wyatt v. Wyatt
, 185 W.Va. 472, 408 S.E.2d 51 (1991).
5. A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect. Syl. Pt. 2, State v. Epperly
, 135 W.Va. 877, 65 S.E.2d 488 (1951).
6. In the absence of any specific indication to the contrary, words used in a
statute will be given their common, ordinary and accepted meaning. Syl. Pt. 1, Tug Valley
Recovery Center, Inc. v. Mingo Co. Comm'n
, 164 W.Va. 94, 261 S.E.2d 165 (1979).
7. The primary object in construing a statute is to ascertain and give effect
to the intent of the Legislature. Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r
W.Va. 108, 219 S.E.2d 361 (1975).
8. When a statute is clear and unambiguous and the legislative intent is plain,
the statute should not be interpreted by the courts, and in such case it is the duty of the courts
not to construe but to apply the statute. Syl. Pt. 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
Per Curiam: (See footnote 1)
This is an appeal by Ulissa Howell (hereinafter Appellant) from a September
24, 2007, order of the Circuit Court of Tyler County affirming an August 3, 2007, order of
the Family Court of Tyler County denying the Appellant's petition to extend the child support
obligations of her former husband, John Goode (hereinafter Appellee), during the period
in which their son, R.J., (See footnote 2)
remained in high school. Subsequent to thorough review of the
briefs, arguments of counsel, and the record as provided to this Court, the order of the Circuit
Court of Tyler County is reversed, and this case is remanded with directions to enter an order
extending the Appellee's child support obligation to October 16, 2007, the date upon which
R.J. attained the age of twenty.
I. Factual and Procedural History
The Appellant and the Appellee were divorced on February 9, 1995, and the
Appellant was granted custody of the parties' son, R.J., born October 16, 1987. The
Appellee was ordered to pay child support. By order dated April 21, 2005, the child support
amount was modified, and that order specified as follows with regard to child support:
Said Child Support shall continue until said child reaches the
age of 18 or is sooner emancipated; provided that said Child
Support shall continue after the age of 18 if said child is enrolled
in high school or vocational school and making substantial
progress toward a degree in said high school or vocational
school; and further provided that such payments shall not extend
past the child's expected graduation date of June, 2006, without
further Order of this Court.
On March 29, 2006, the Appellant initiated the action currently before this
Court by filing a pro se petition requesting the Family Court of Tyler County to order
continued child support beyond R.J.'s eighteenth birthday. A final hearing on the
Appellant's motion was conducted by the family court on May 17, 2007. The Appellant
presented evidence through her own testimony and the testimony of R.J.'s special education
instructor and case manager, Ms. Kimberly Gongola. The evidence indicated that R.J. had
been diagnosed (See footnote 3)
with a learning disability, had been identified by Wetzel County Schools as
disabled within the meaning of the Individuals with Disabilities Education Act (IDEA), (See footnote 4)
had been receiving learning disability services since his first year in elementary school. An
Individualized Education Plan (hereinafter IEP) had been formulated for R.J., and
educational goals and transition plans had been developed through the IEP Team. The
evidence indicated that recent IEP goals had provided for a transition plan, including work-
study programs designed to educate R.J. within the setting of local businesses, including a
work-study opportunity as a statistician with a local newspaper.
The evidence further indicated that R.J. was enrolled as a full-time student at
Magnolia High School in New Martinsville, Wetzel County, West Virginia, and had not yet
received a diploma from any high school or vocational school. Although R.J. had completed
all minimum core courses required by the State of West Virginia for graduation from high
school, Ms. Gongola explained that he had not yet progressed on the goals identified by his
IEP to the extent that he would be employable without significant assistance from his
instructors at the high school. School administrators had determined that R.J. had not
transitioned to the point where he could be gainfully employed and that additional education
was necessary. (See footnote 5)
The family court entered an order, dated August 3, 2007, finding that the
Appellee's child support obligation concluded on May 31, 2006, noting that R.J. had
completed all the minimum requirements of the State of West Virginia and Wetzel County
by May 2006. The circuit court refused the Appellant's petition for appeal by order entered
September 24, 2007. This Court granted the Appellant's petition for appeal on May 22,
2008. Having remained enrolled as a full-time student at Magnolia High School since the
initiation of this action, R.J. reached the age of twenty of October 16, 2007, and he ultimately
received his high school diploma in June 2008.
II. Standard of Review
In establishing a standard of review for examining a lower tribunal's
rulings, this Court has consistently held as follows:
In reviewing a final order entered by a circuit
court 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). Moreover, [w]here the
issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review. Syl. Pt. 1, Chrystal R.M
v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995); see also Syl. Pt. 1, Appalachian
Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995)
(Interpreting a statute or an administrative rule or regulation presents a purely legal question
subject to de novo review.). Based upon the guidance of these standards, we address the
merits of this appeal.
West Virginia Code § 48-11-103 (2002) (Repl. Vol. 2004) (See footnote 6)
child support may be extended beyond the date upon which the child reaches the age of
eighteen under certain delineated circumstances. In pertinent part, that statute provides as
Upon a specific finding of good cause shown and
upon findings of fact and conclusions of law in support
thereof, an order for child support may provide that
payments of such support continue beyond the date when
the child reaches the age of eighteen, so long as the child
is unmarried and residing with a parent, guardian or
custodian and is enrolled as a full-time student in a
secondary educational or vocational program and making
substantial progress towards a diploma: Provided, That
such payments may not extend past the date that the child
reaches the age of twenty. W. Va. Code § 48-11-103(a) (emphasis supplied).
The West Virginia Legislature explained its general intent with respect to
child support issues in West Virginia Code § 48-11-101(a) (2001) (Repl. Vol. 2004), as
It is one of the purposes of the Legislature in
enacting this chapter to improve and facilitate support
enforcement efforts in this state, with the primary goal
being to establish and enforce reasonable child support
orders and thereby improve opportunities for children. It
is the intent of the Legislature that to the extent
practicable, the laws of this state should encourage and
require a child's parents to meet the obligation of
providing that child with adequate food, shelter, clothing,
education, and health and child care.
In conformity with the intent enunciated by the Legislature, this Court has
succinctly stated that [a] parent's duty to support his/her child(ren) has long been recognized
to be an integral part of the rubric of parental responsibilities. In re Stephen Tyler R.,
W.Va. 725, 740, 584 S.E.2d 581, 596 (2003) The duty of a parent to support a child is a
basic duty owed by the parent to the child[.] Syl. Pt. 3, in part, Wyatt v. Wyatt
, 185 W.Va.
472, 408 S.E.2d 51 (1991). In Carter v. Carter
, 198 W.Va. 171, 479 S.E.2d 681 (1996), this
Court explained that [a] fundamental concept in the public policy of this State is that the
best interest and welfare of the children are paramount when deciding matters of visitation,
child support and child custody. 198 W. Va. at 176, 479 S.E.2d at 686. (See footnote 7)
This Court has consistently asserted that clear statutory provisions require
an application by this Court which gives effect to the intent of the Legislature in enacting the
statute. In syllabus two of State v. Epperly
, 135 W.Va. 877, 65 S.E.2d 488 (1951), for
instance, this Court explained that [a] statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the courts but will be
given full force and effect. See also Shaffer v. Stanley,
215 W.Va. 58, 593 S.E.2d 629
(2003); Albright v. White
, 202 W.Va. 292, 503 S.E.2d 860 (1998); State v. Jarvis
, 199 W.Va.
635, 487 S.E.2d 293 (1997). In the absence of any specific indication to the contrary, words
used in a statute will be given their common, ordinary and accepted meaning. Syl. Pt. 1, Tug Valley Recovery Center, Inc. v. Mingo Co. Comm'n
, 164 W.Va. 94, 261 S.E.2d 165
Syllabus point one of Smith v. State Workmen's Compensation
, 159 W.Va. 108, 219 S.E.2d 361 (1975), also asserts that [t]he primary object
in construing a statute is to ascertain and give effect to the intent of the Legislature. See
also DeVane v. Kennedy
, 205 W.Va. 519, 528, 519 S.E.2d 622, 632 (1999) (Where the
language of a statutory provision is plain, its terms should be applied as written and not
construed.); Syl. Pt. 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W.Va.
137, 107 S.E.2d 353 (1959) (When a statute is clear and unambiguous and the legislative
intent is plain, the statute should not be interpreted by the courts, and in such case it is the
duty of the courts not to construe but to apply the statute.).
In the case sub judice, West Virginia Code § 48-11-103 is the governing
statute, and it enumerates a very concise standard for determining whether child support may
continue beyond the date upon which the child reaches the age of eighteen. The Appellee
argues that R.J. does not satisfy the requirements identified in the statute because he became eligible
to receive a diploma in May 2006, upon the completion of minimum educational
requirements. The Appellee therefore concludes that the child support obligation should be
discontinued at that time. The family court and circuit court agreed. The family court
evaluated West Virginia Code § 48-11-103 and concluded as follows: It does not appear the
legislature contemplated extending support for an adult child who can and will graduate high
school and is still potentially considering post secondary education, nor did the stature [sic]
reference an 'I.E.P.' classification by a local school system as the standard of consideration.
This Court finds such conclusion untenable for two distinct reasons: first,
it lacks conformity with the explicit language of the statute; and second, it disregards
fundamental realities of R.J.'s education. With regard to the statutory paradigm, it is clear
that child support may be ordered to continue beyond the child's eighteenth birthday when
the child remains unmarried; resides with a parent, guardian or custodian; is enrolled as a
full-time student in a secondary educational or vocational program; and is making substantial
progress towards a diploma, with child support to be terminated no later than the child's
The Legislature did not specify that child support would cease when the
child became eligible
to receive a diploma based upon satisfactory completion of minimum
educational requirements. Rather, the Legislature stated that child support could continue
while the child was making substantial progress toward
a diploma, with a termination date
no later than the child's twentieth birthday.
Second, with respect to the realities of R.J.'s education, the disabilities
recognized during his elementary education were addressed through utilization of an
IEP. The development and implementation of an IEP is governed by the West Virginia Board of
Education, specifically Policy 2419, West Virginia 126 C.S.R. § 16. Policy 2419 requires
special education to be provided in conformity with an appropriate IEP. An IEP is
essentially a written plan developed for each child with a disability that is designed to meet
that child's specific educational needs. Sturm v. Board of Educ. of Kanawha Co.,
W.Va. ___, ___S.E.2d ___, 2008 WL 5115645 (2008) (quoting 20 U.S.C. § 1414(d)(1)(A)).
As R.J. approached the conclusion of his secondary education, his IEP
Team (See footnote 8)
evaluated his progress and determined that R.J. required additional education designed
to further the stated goals of the IEP and more effectively prepare R.J. to enter the work force
and gain an ability to support himself. The determination of the educational professionals
in that regard was apparently not challenged administratively or otherwise. (See footnote 9)
Accordingly, R. J. was retained for additional education, and he remained
in school, progressing toward his diploma, until he ultimately obtained that diploma in June
2008. Because R.J. attained the age of twenty on October 16, 2007, prior to the receipt of
his diploma, West Virginia Code § 48-11-103 requires the Appellee's child support
obligation to cease on that date.
As examined above, West Virginia Code § 48-11-103 specifies the
circumstances under which child support may be extended beyond the date upon which the
child reaches the age of eighteen. This Court concludes that the lower court erred in the
determination that R.J. failed to satisfy the requirements of the statute. The evidence
revealed that he was unmarried; residing with a parent; enrolled as a full-time student in a
secondary educational program; and making substantial progress toward a diploma.
Although he had satisfied the minimum requirements for graduation by May 2006, he was
retained in high school pursuant to the education administration's decision that he required
additional education in furtherance of the objectives of his IEP, and he had not yet received
his diploma. Consequently, we find that R.J. was making substantial progress towards a
diploma within the meaning of West Virginia Code § 48-11-103 until he ultimately received
that diploma in June 2008. We find that the lower court abused its discretion in failing to
find good cause for the continuation of the child support obligation. (See footnote 10)
Based upon the
statutory provision for termination of child support at the age of twenty, the Appellee's child
support obligation must be terminated as of R.J.'s twentieth birthday, October 16, 2007,
despite the fact that R.J. had not yet received his diploma by that date.
Accordingly, the order of the Circuit Court of Tyler County is reversed, and
this case is remanded with directions to enter an order extending the Appellee's child support
obligation to October 16, 2007, the date upon which R.J. attained the age of twenty.
Pursuant to administrative orders entered September 11, 2008 and January 1,
2009, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a
member of the Supreme Court of Appeals of West Virginia commencing September 12,
2008, and continuing until the Chief Justice determines that assistance is no longer necessary,
in light of the illness of Justice Joseph P. Albright.
Our customary practice in cases involving minors is to refer to the parties'
children by their initials rather than by their full names. See, e.g., In re Cesar L., 221 W.Va.
249, 252 n.1, 654 S.E.2d 373, 376 n.1 (2007).
R.J. has been diagnosed with both a learning disability and attention deficit
disorder. During the hearing conducted in family court, the evidence indicated that R.J. was
reading and writing on a seventh grade level. R.J. has also been diagnosed with Brachio-
otorenal Syndrome and possibly Kabuki Syndrome. The latter was described in the record
as a neuromuscular disease that limits his ability to ambulate and participate in physical
The record also includes an assessment by School Psychologist Susanne Vila,
M.S., recommending that R.J. attend an additional year of high school.
West Virginia Code § 48-11-103 was recently amended, effective June 7,
2008. The amended version, not applicable to this case, deleted the first portion of the
statute, Upon a specific finding of good cause shown and upon findings of fact and
conclusions of law in support thereof, an order for child support may. . . . In its place, the
amended version added, An order for child support shall . . . . Thus, the Legislature
removed the requirement for a specific finding of good cause and supporting findings of fact
and conclusions of law.
In Leak v. Leak,
497 S.E.2d 702 (N.C. App. 1998), the Court of Appeals of
North Carolina evaluated a similar statutory scheme, worded differently than the West
Virginia statute, and explained that the purpose of the statute was to provide continuing
child support for children in school. 497 S.E.2d at 704. Specifically, the North Carolina
statute addresses the continuation of child support while a child remains in high school and
provides that child support shall terminate when the child reaches the age of 18 except:
(1) If the child is otherwise emancipated,
payments shall terminate at that time;
(2) If the child is still in primary or secondary
school when the child reaches age 18, support
payments shall continue until the child graduates,
otherwise ceases to attend school on a regular
basis, fails to make satisfactory academic
progress towards graduation
, or reaches age 20,
whichever comes first, unless the court in its
discretion orders that payments cease at age 18 or
prior to high school graduation.
N.C.G.S.A. § 50-13.4 (emphasis supplied). The court rejected the parent's argument that
child support should be discontinued based upon the allegation that the child had failed to
attend school regularly and was not making sufficient progress toward graduation. 497
S.E.2d at 704.
West Virginia Board of Education Policy 2419 requires the following with
regard to the first IEP in effect when a student is sixteen years old (or sooner at the discretion
of the Team):
1. Appropriate, measurable postsecondary goals related to
independent living skills, if needed;
2. Appropriate measurable postsecondary goals based upon
age-appropriate transition assessment related to training,
education and employment; and
3. Transition services (including courses of study) needed to
assist the student in reaching postsecondary goals identified
on the IEP.
The goals and transition services must be updated on the IEP annually.
The Appellee testified that he had attended at least one of the IEP Team
meetings. Policy 2419 provides that the primary purpose of an IEP Team meeting is to
design an IEP that will meet the unique needs of an eligible student. A parent or adult
student is given the explicit right to mediation or a due process hearing regarding the IEP
Team decisions. Members of an IEP Team include parents, a general education teacher, a
special education teachers, a district representative, and the student.
The deference to be accorded to the decisions of local educational
professionals regarding policy implementation and student achievement has been consistently
recognized by reviewing courts. In Hendricks v. Sanks,
545 S.E.2d 779 (N.C. App. 2001),
for instance, the North Carolina child support continuation statute, very similar to the West
Virginia statute, was addressed within the context of a parent's claim that her son, born with
Down Syndrome, was failing to make progress toward graduation while still attending high
school after the age of eighteen. The Court of Appeals of North Carolina reasoned that the
key question is whether John is making satisfactory academic progress toward graduation
within the meaning of N.C. Gen. Stat. § 50-13.4(c)(2). 545 S.E.2d at 781. The court
concluded that the evidence at trial indicated that John's attendance at school is in his best
interests, that he would continue to benefit in the future from the curriculum and that he is
making satisfactory academic progress toward a non traditional graduation. Id
.; see also
Mrs. B. v. Milford Bd. of Educ
., 103 F.3d 1114, 1121 (2nd Cir. 1997) (A court may not
second-guess state educators' policy decisions in the effort to maximize a handicapped
child's educational potential.); Todd D. by Robert D. v. Andrews
, 933 F.2d 1576, 1581 (11th
Cir. 1991) (the district court must pay great deference to the educators who develop the
IEP.); Jefferson Co. Bd. of Educ. v. Breen
, 853 F.2d 853, 856 (11 Cir. 1988) (holding that
a district court may not substitute its own judgment on sound educational policy for those
made at the state administrative level.).
Nothing in this opinion shall be construed to affect a situation in which the
parties have, by agreed order, extended child support beyond the date upon which the child
attains the age of eighteen.