http://www.state.wv.us/wvsca/Docs/Fall05/32697.htm
IN THE SUPREME COURT OF APPEALS OF
September 2005 Term
____________
No. 32697
____________
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN
RESOURCES,
BUREAU FOR CHILD SUPPORT ENFORCEMENT,
Petitioner
v.
KIMBERLY SMITH,
Respondent
______________________________________________________
Certified Question from the
Honorable Alfred E. Ferguson, Judge
Case No. 04-D-1080
CERTIFIED QUESTION ANSWERED
_____________________________________________________
Submitted: October 11, 2005
Filed: December 2, 2005
Kimberley D. Bentley
Kimberly Smith
West Virginia Department
of
Huntington, West Virginia
Health & Human
Resources
Respondent, Pro se
Charleston, West Virginia
Paul Cooley, III
Garrett M. Jacobs
Bureau for Child Support Enforcement
Huntington, West Virginia
Attorneys for
Petitioner
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The
appellate standard of review of questions of law answered and certified by a
circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197
2. “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 [1967], the statute relating to certified questions from a
circuit court of this State to this Court.” Syllabus Point 3,
Kincaid v. Mangum, 189
3. When
a child is the subject of an abuse or neglect or other proceeding in a circuit
court pursuant to Chapter 49 of the West Virginia Code, the circuit
court, and not the family court, has jurisdiction to establish a child support
obligation for that child.
4. When
a circuit judge enters an order on an abuse or neglect petition filed pursuant
to Chapter 49 of the West Virginia Code, and in so doing alters the
custodial and decision-making responsibility for the child and/or commits the
child to the custody of the Department of Health and Human Resources, W.Va.
Code, 49-7-5 [1936] requires the circuit judge to impose a support
obligation upon one or both parents for the support, maintenance and education
of the child. The entry of an order establishing a support obligation is
mandatory; it is not optional.
5. Any
order establishing a child support obligation in an abuse or neglect action
filed pursuant to Chapter 49 of the West Virginia Code must use the Guidelines
for Child Support Awards found in W.Va. Code, 48-13-101, et seq.
Starcher, J.:
The
Circuit Court of Cabell County presents three certified questions to this Court
relating to the jurisdiction of a family court to establish a parent's support
obligation for a child, when the child is also the subject of an abuse or
neglect proceeding in the circuit court. We are asked to decide whether in such
cases the authority to impose a child support obligation lies in the circuit
court or in the family court.
As set
forth below, we find that jurisdiction to establish a child support obligation
lies solely with the circuit court that is adjudicating, or has adjudicated,
the custody and decision-making responsibility for the child as a result of an
abuse or neglect petition.
I.
Facts & Background
The
three certified questions in this case concern the child support obligation of
a parent, whose children have been placed into the custody of the Department of
Health and Human Resources as a result of an abuse or neglect proceeding filed
in a circuit court, all pursuant to Chapter 49 of the West Virginia Code.
The questions essentially ask us to resolve a single, jurisdictional question:
between a circuit court and a family court, which court should calculate and
enforce the parent's child support obligation?
On
June 30, 2003, the Department of Health and Human Resources (“the Department”)
filed a petition in the
While
the children were in temporary foster care pursuant to the circuit court's
order, on February 11, 2004, the Department initiated a separate civil action
by filing a new petition in the
The
family court, however, refused to exercise jurisdiction over the Department's
petition for child support. In an order dated June 11, 2004, the family court
stated:
The Family Court does not have jurisdiction in the present case. . . .
Jurisdiction for establishing the support obligation lies exclusively with the
[Circuit] Court that Ordered the placement of the child(ren).
The family court's order dismissed the Department's petition for child support.
The
Department appealed the family court's dismissal order to the circuit court.
The Department argued to the circuit court that, as a general proposition, it
was experiencing difficulty establishing child support obligations in abuse and
neglect cases because family courts and circuit courts were in disagreement
concerning which court could or should establish the support obligation. As the
Department stated:
[T]he Family Court dismissed the action holding that the Family Court lacks
jurisdiction to establish child support and that jurisdiction lies wholly with
the Circuit Court which removed the child from the custody of the parent. . . .
The [Department] has previously appealed the same ruling of the Family Court
[of
. . . [The Department] is experiencing difficulty establishing the
federally-mandated child support obligation in Chapter 49 [abuse and neglect]
cases as the split of decision regarding jurisdiction is typical across the
State.
The Department therefore asked the circuit court to certify questions to this
Court to clarify the procedure that the Department, family courts and circuit
courts should pursue to establish a parent's child support obligation when an
abuse or neglect petition has been filed.
In
an order dated December 15, 2004, the circuit court certified the following
questions to this Court: (See footnote 1)
Certified
Question One:
Does the Family Court have jurisdiction to establish child support if the same
child is also the subject of a pending proceeding or order under Chapter 49 of
the West Virginia Code, when no order of the Circuit Court addresses child
support?
Answer
of the Circuit Court: Yes.
Certified
Question Two:
May the Circuit Court transfer jurisdiction to the Family Court to calculate
child support in a proceeding under Chapter 49 of the West Virginia Code by
administrative order en masse?
Answer
of the Circuit Court: No.
Certified
Question Three:
May
the Circuit Court transfer jurisdiction to the Family Court to calculate child
support in a proceeding under Chapter 49 of the West Virginia Code by administrative
order on a case by case basis?
Answer
of the Circuit Court: No.
II.
Standard of Review
“The
appellate standard of review of questions of law answered and certified by a
circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197
III.
Discussion
It is
well established that this Court has the authority to reformulate certified
questions.
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 [1967], the statute relating to
certified questions from a circuit court of this State to this Court.
Syllabus Point 3, Kincaid v. Mangum, 189
After
considering the record and the briefs and arguments of the Department, we
believe that the circuit court's three certified questions should be
reformulated and distilled down into this single question:
If a child is either the subject of an abuse or neglect proceeding in a circuit
court, or the subject of a circuit court order affecting the custodial or
decision-making responsibility for the child pursuant to Chapter 49 of the West
Virginia Code, does the circuit court have exclusive jurisdiction to
establish a child support obligation for that child?
As we discuss below, we
believe that the answer to this question is “Yes.”
We
begin our analysis of this question by looking to the historical purpose behind
the creation of the family court system, and its relationship to the circuit
courts.
In
October 1997 this Court entered an order that established the “Commission on
the Future of the West Virginia Judicial System.” The Commission was charged
with examining the State court system and proposing “structural,
organizational, and procedural changes that will ensure a just, effective,
responsive, and efficient court system into the next century.” One of the many
areas examined by the Commission was the inefficient, piecemeal approach taken
by the then-existing court system in addressing legal issues concerning parents
and children.
After
extensive public hearings and deliberations, the Commission determined _ as the
law stood in 1998 _ that families entering the court system faced a “fragmented
and duplicative” system:
[A]
family in crisis could encounter five different decision makers in the course
of attempting to resolve its problems: a magistrate, to hold hearings on a domestic
violence petition; a family law master, to hear evidence on a divorce; a
circuit judge, to conduct an abuse and neglect proceeding; a different circuit
judge to conduct a delinquency proceeding regarding the behavior of one of the
children; and a panel of county commissioners to conduct a proceeding regarding
the contested legal guardianship of a minor.
Report of the Commission on the Future of the
[W]hen
there is no coordination between different segments of the court system, it is possible that a judge hearing an abuse and
neglect case may not be aware of a pending divorce, a disputed non-testamentary
legal guardianship, a juvenile delinquency proceeding, and/or a recent domestic
violence petition. This lack of integration and consolidation does not serve
the best interest of the families, interferes with the ability of the system to
provide a quality resolution, and does not make efficient use of judicial
resources.
To
resolve this problem, in December 1998 the Commission proposed that the
Legislature establish a “unified family court.” The Commission, relying upon
studies by the American Bar Association and upon an examination of family court
systems devised by twenty-five other states, proposed a “one judge, one family”
system. Under this system, one judicial officer would be empowered to make
decisions concerning families, parents and children. The unified family court
system crafted by the Commission contemplated that one, specially-trained judge
(See footnote 2) would have “comprehensive jurisdiction of
all family law cases, including juvenile matters,” and that all cases
pertaining to one family _ such as divorce, domestic violence, paternity, or
abuse and neglect _ would be assigned to that judge.
The
Legislature responded to the Commission's recommendations by creating the
current family court system. The Legislature did not, however, wholly adopt the
recommended “one judge, one family” concept and did not establish the family
court system as a “unified court” with the powers necessary for resolution of
all family law matters. Instead, the system adopted by the Legislature makes
clear that “[a] family court is a court of limited jurisdiction.”
The
Legislature did consolidate jurisdiction over many family law issues into the
original jurisdiction of the family courts. Following the recommendations of
the Commission, family courts now have jurisdiction over divorces _ including
the power to dissolve a marriage, equitably distribute marital property, and
determine child and spousal support obligations (See footnote 4) _ and have contempt power to enforce any
family court decrees. (See footnote 5) Family courts also have jurisdiction over
actions seeking child support, when the parents have never married; (See footnote 6) over actions to establish paternity; (See footnote 7) over civil domestic violence cases seeking
a protective order; (See footnote 8) and over infant guardianship cases. (See footnote 9)
But
not all areas of family law were placed before the family courts. One significant
area of family law discussed by the Commission remains within the sole
jurisdiction of the circuit courts: child abuse or neglect proceedings under
Chapter 49 of the West Virginia Code.
In
the instant case we are asked to determine whether, and to what extent (if
any), family courts may exercise jurisdiction over a parent's child support
obligation, when the child is subject to an abuse or neglect proceeding in the
circuit court. To answer this question we must examine the various legislative
enactments delineating the jurisdiction of the family and circuit courts in the
context of abuse or neglect cases.
W.Va.
Code, 49-6-1 [2005] clearly states that an abuse or neglect petition may
only be filed in “the circuit court in the county in which the child resides[.]” Likewise, the statute setting forth the
jurisdiction of the family courts, W.Va. Code, 51-2A-2(c) [2004], states
that when an abuse or neglect petition is filed in a circuit court, and “an
action for divorce, annulment or separate maintenance” is at the same time
pending in a family court, the family court must defer to the circuit court. As the statute states, any orders of the circuit court “shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making responsibility
for the child between the parents.” (See footnote 10)
The
instant case arises, however, because of what the family court jurisdiction
statute regarding abuse or neglect jurisdiction does not say. W.Va.
Code, 51-2A-2(c) places limitations upon the family court's “allocation of
custodial and decision-making responsibility;” it says nothing of the family
court's power to create and enforce a child support obligation. Concerning that
power, W.Va. Code, 51-2A-2(a)(2) and (10)
state:
The family court shall exercise jurisdiction over the following matters: . . .
(2) All actions to obtain orders of child support . . . ; . . .
(10) All actions brought, including civil contempt proceedings, to enforce an
order of spousal or child support. . . .
Relying upon these two subsections, the Department argues that family courts
retain jurisdiction to determine a parent's support obligation for a child who
is subject to an abuse or neglect petition. The Department asserts that it may
therefore turn to the family courts to obtain an order for the support of a
minor child whenever a parent is obligated to support the child and is failing
to do so (See footnote 11) _ even when a circuit court has placed
that child in the custody of the Department as a result of the filing of an
abuse or neglect petition.
After
carefully examining the statutory scheme concerning the establishment of child
support obligations in abuse or neglect cases, we reject the Department's
interpretation of W.Va. Code, 51-2A-2. We believe that when an abuse or
neglect petition has been filed, the family courts are divested of jurisdiction
to establish a support obligation for the child and that the duty to establish
a support obligation lies solely with the circuit court.
The
circuit court's duty to impose a child support obligation upon hearing an abuse
or neglect petition is found in W.Va. Code, 49-7-5 [1936]. That statute
states, in part:
If it appears upon the hearing of a petition under this chapter that a person
legally liable for the support of the child is able to contribute to the support
of such child, the court or judge shall order the person to pay the state
department, institution, organization, or private person to whom the child was
committed, a reasonable sum from time to time for the support, maintenance, and
education of the child.
This statute _ adopted in 1936 _ indicates that a circuit court “shall” require
a parent to pay support for a child to the Department if the parent “is able to
contribute to the support of such child.” The determination of whether and how
much a parent can contribute to the support of a child is not, however, a
visceral, unfettered decision for the circuit court; rather, the existence and
amount of a child support obligation under W.Va. Code, 49-7-5 must now
be computed in light of recent statutes which pertain to the calculation of a
support obligation. See Syllabus Point 12, Vest v. Cobb, 138
W.Va. 660, 76 S.E.2d 885 (1953) (“The Legislature, when it enacts legislation,
is presumed to know of its prior enactments.”); Syllabus Point 5, State v.
Snyder, 64 W.Va. 659, 63 S.E. 385 (1908) (“A statute should be so read and
applied as to make it accord with the spirit, purposes and objects of the
general system of law of which it is intended to form a part; it being presumed
that the legislators who drafted and passed it were familiar with all existing
law, applicable to the subject-matter, whether constitutional, statutory or
common, and intended the statute to harmonize completely with the same and aid
in the effectuation of the general purpose and design thereof, if its terms are
consistent therewith.”).
The
current statutory scheme regarding child support obligations requires judges _ family court or circuit court _ to use the Guidelines
for Child Support Awards found in Article 13 of Chapter 48 to calculate the
existence and amount of a parent's child support obligation. The Guidelines
for Child Support Awards are not limited to being applied only by family
courts, but are to be used by any court that is assessing any
child support obligation. Specifically, W.Va. Code, 48-13-701 [2001] states
that “[t]he guidelines in child support awards apply as a rebuttable
presumption to all child support orders established or modified in West
Virginia.” (Emphasis added). The statute mandates that the Guidelines
“be applied to all actions in which child support is being determined including
. . . foster care, . . . public assistance, nonpublic assistance and support
decrees arising despite nonmarriage of the parties.” (See footnote 12)
The
Guidelines for Child Support Awards were designed by the Legislature to
ensure uniformity in child support awards, and to increase predictability for
parents, children, and “other persons who are directly affected by child
support orders” _ which we interpret to include the Department of Health and
Human Resources in the context of an abuse and neglect petition. It is
therefore presumed that any order entered by a court in accordance with the Guidelines
“is the correct amount of child support to be awarded.”
Furthermore,
“to ensure greater uniformity” and “to increase predictability” as contemplated
by the Legislature in enacting the Guidelines, orders concerning child
support obligations must be entered promptly. When support orders are not
entered at the same time that the circuit court alters the allocation of
custodial and decision-making responsibility for the child, the child's parents
and the Department are deprived of the ability to order their affairs. If the
circuit court gives custody of the child to one parent or another responsible
person in the abuse or neglect action, then in the absence of a support
obligation upon the non-custodial parent, the custodial parent or responsible
person must fall back on the resources of the Department. If the court places
the child into the sole custody of the Department, in the absence of a support
obligation, taxpayers must unfairly foot the entire bill. In either case, when
a court delays the calculation of a support obligation, the parents may be
unfairly surprised to be forced to pay past support, education or medical
expenses paid by the Department, in addition to making current, monthly support
payments.
The
record in this case prompts us to raise one additional issue of concern
regarding the prompt resolution of child abuse or neglect actions. In 2004, the
Court _ through the assistance of the Court Improvement Oversight Board _
issued the Judicial Benchbook for Child Abuse and
Neglect Proceedings and issued a series of computerized forms called the Juvenile
Abuse and Neglect Information System. (See footnote 14) The Benchbook
contains a summary of the statutes, rules, caselaw
and procedures in abuse and neglect cases, as well as checklists to ensure a
thorough review of each case. Tied into the Benchbook
is the Juvenile Abuse and Neglect Information System _ better known by
its initials “JANIS” _ which is a computerized tool for judges and other
practitioners to use to expedite the handling of child abuse and neglect cases. The JANIS system improves the speed and quality of
judges' and attorneys' work product by automating the creation of case orders
and motions. It is our understanding that many practitioners and judges are
unaware of these two resources. We would suggest, in the future, that judges,
attorneys, and the Department (and thereby children and their parents) would
substantially benefit from the use of these resources in the adjudication of
abuse and neglect cases.
We
therefore hold that when a child is the subject of an abuse or neglect or other
proceeding in a circuit court pursuant to Chapter 49 of the West Virginia
Code, the circuit court, and not the family court, has jurisdiction to
establish a child support obligation for that child.
When
a circuit judge enters an order on an abuse or neglect petition filed pursuant
to Chapter 49 of the West Virginia Code, and in so doing alters the
custodial and decision-making responsibility for the child and/or commits the
child to the custody of the Department of Health and Human Resources, W.Va.
Code, 49-7-5 [1936] requires the circuit judge to impose a support
obligation upon one or both parents for the support, maintenance and education
of the child. The entry of an order establishing a support obligation is
mandatory; it is not optional.
Finally,
any order establishing a child support obligation in an abuse or neglect action
filed pursuant to Chapter 49 of the West Virginia Code must use the Guidelines
for Child Support Awards found in W.Va. Code, 48-13-101, et seq.
IV.
Conclusion
The
question before the Court is this:
If a child is either the subject of an abuse or neglect proceeding in a circuit
court, or the subject of a circuit court order affecting the custodial or
decision-making responsibility for the child pursuant to Chapter 49 of the West
Virginia Code, does the circuit court have exclusive jurisdiction to
establish a child support obligation for that child?
We answer the certified question “Yes.”
Certified
Question Answered.
This
Court recently received a Report on the Overlap of Child Abuse and Neglect
Cases in Family and Circuit Courts from the West Virginia Court Improvement
Oversight Board. The report identifies four problematic areas of overlap
between circuit courts and family courts in the context of abuse and neglect
actions, and suggests solutions for the Court, the Legislature, the Executive
and other individuals to pursue, so as to more efficiently address the needs of
abused and neglected children. One of those four areas is, coincidentally,
encompassed by the questions certified in the instant case.
The
Commission recommended that
.
. . Unified Family Court judges gain office in the same manner, and have the
same status, pay, and benefits as circuit judges. . . .
Other states with Unified Family Courts have determined that equal stature for
Unified Family Court Judges and adequate additional support personnel are absolutely
essential to the success of this plan.
Report of the Commission on the Future of the
As
we stated in Syllabus Point 4 of State ex rel.
Silver v. Wilkes:
Pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution,
W.Va. Code § 51-2-2 (1978), and the Family Court statutes, W.Va. Code §§
51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are
inferior to circuit courts. Family courts are, therefore, subject to both the
appellate jurisdiction and the original jurisdiction of the circuit courts in
this State.
W.Va.
Code, 51-2A-2(a)(1) [2004] states:
The
family court shall exercise jurisdiction over . . . All actions for divorce,
annulment or separate maintenance brought under the provisions of article
three, four or five, chapter forty-eight of this code[.]
W.Va. Code, 51-2A-2(a)(8) and (9) permit a
family court judge to enter temporary orders in such proceedings, and to later
modify any orders entered.
See
W.Va. Code, 51-2A-2(a)(10) [2004], giving family
courts authority “to enforce an order of spousal or child support or to enforce
an order for a parenting plan or other allocation of custodial responsibility
or decision-making responsibility for a child,” including through civil
contempt proceedings. See also, W.Va. Code, 51-2A-9 [2001]
(setting forth the contempt powers of a family court judge).
See
See
W.Va.
Code, 51-2A-2(a)(12) [2004] gives family courts
jurisdiction over “[a]ll final hearings in domestic
violence proceedings[.]”
W.Va.
Code, 51-2A-2(a)(17) [2004] gives family courts
jurisdiction over “[a]ll proceedings relating to the
appointment of guardians or curators of minor children . . . exercising
concurrent jurisdiction with the circuit court.”
W.Va.
Code, 51-2A-2(c) [2004] states:
If an action for divorce, annulment or separate maintenance is pending and a
petition is filed pursuant to the provisions of article six, chapter forty-nine
of this code alleging abuse or neglect of a child by either of the parties to
the divorce, annulment or separate maintenance action, the orders of the
circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making responsibility
for the child between the parents. If no order for the allocation of custodial
and decision-making responsibility for the child between the parents has been
entered by the family court in the pending action for divorce, annulment or
separate maintenance, the family court shall stay any further proceedings
concerning the allocation of custodial and decision-making responsibility for
the child between the parents and defer to the orders of the circuit court in
the abuse or neglect proceedings.
We note that this provision regarding the jurisdiction of the family court
appears to apply only when a “divorce, annulment or separate maintenance”
action has been filed between the parents of a child who is the subject of a
later abuse or neglect petition. The statute is silent regarding the course of
action to be taken when any other type of action _ such as a paternity action
or an action to establish child support between unmarried individuals _ is filed
between the parents of the child.
The
Department also cites to W.Va. Code, 48-14-101 [2001] as its authority
to initiate a separate action in family court to establish a child support
obligation when an abuse or neglect petition regarding the child is pending in
circuit court. The statute states:
An action may be brought in family court to obtain an order for the support of
a minor child when:
(1) The child has a parent and child relationship with an obligor;
(2) The obligor is not meeting an obligation to support the child;
(3) An enforceable order for the support of the child by the obligor has not
been entered by a court of competent jurisdiction; and
(4) There is no pending action for divorce, separate maintenance or annulment
in which the obligation of support owing from the obligor to the child is at issue.
W.Va.
Code, 48-13-701 [2001] states:
The guidelines in child support awards apply as a rebuttable
presumption to all child support orders established or modified in West
Virginia. The guidelines must be applied to all actions in which child support
is being determined including temporary orders, interstate (URESA and UIFSA),
domestic violence, foster care, divorce, nondissolution,
public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by
the court as the basis for reviewing adequacy of child support levels in
uncontested cases as well as contested hearings.
W.Va.
Code, 48-13-101 [2001] states:
This article establishes guidelines for child support award amounts so as to
ensure greater uniformity by those persons who make child support
recommendations and enter child support orders and to increase predictability
for parents, children and other persons who are directly affected by child support
orders. There is a rebuttable presumption, in any
proceeding before a court for the award of child support, that the amount of
the award which would result from the application of these guidelines is the
correct amount of child support to be awarded.
Both
the Benchbook and JANIS are available
on the Supreme Court of Appeals' internet website, www.state.wv.us/wvsca . The Benchbook may be downloaded or reviewed at www.state.wv.us/wvsca/benchbook_04/cover.htm
, while the JANIS system may downloaded or accessed at
www.wvjanis.com .
.