Jeffrey v. Jeffrey
Annotate this CaseSeptember 1992 Term
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No. 20922
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ANNA MARIE JEFFREY,
Plaintiff Below, Appellant
v.
MARK JEFFREY,
Defendant Below, Appellee
_______________________________________________
Appeal from the Circuit Court of Wyoming County
Honorable John S. Hrko, Circuit Judge
Civil Action No. 80-18-C
REVERSED AND REMANDED
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Submitted: September 22, 1992
Filed: December 14, 1992
Norman Googel
Welch, West Virginia
Counsel for Appellant
Wilbert A. Payne
Payne & Payne
Beckley, West Virginia
Counsel for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "Once the circuit court's jurisdiction of the person
attaches in a divorce action, jurisdiction continues throughout all
subsequent proceedings which arise out of the original cause of
action, including matters relating to alimony, child support, and
custody, and a party may not avoid the continuing jurisdiction of
the trial court to modify orders concerning alimony, child support,
and custody by moving outside the geographical jurisdiction of this
State." Syl. Pt. 1, State ex rel. Ravitz v. Fox, 166 W. Va. 194,
273 S.E.2d 370 (1980).
2. The entry of a Uniform Reciprocal Enforcement of Support
Act order in a foreign state does not prevent or in any manner
restrict West Virginia, as the initiating state, from continuing to
exercise jurisdiction in a subsequent petition to modify. Any
other construction of the antisupersession clause contained in West
Virginia Code § 48A-7-29a (1992) would be contrary to the intent of
the URESA legislation.
3. "'In ascertaining legislative intent, effect must be given
to each part of the statute and the statute as a whole so as to
accomplish the general purpose of the legislation.' Syl. Pt. 2,
Smith v. State Workmen's Compensation Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975)." Syl. Pt. 3, State ex rel. Fetters v. Hott, 173
W. Va. 502, 318 S.E.2d 446 (1984).
Workman, Justice:
Anna Marie Jeffrey appeals from a July 30, 1991, order of the
Circuit Court of Wyoming County in which the lower court found that
it lacked jurisdiction to modify child support due to the existence
of a prior proceeding in Tennessee under the Uniform Reciprocal
Enforcement of Support Act (hereinafter referred to as "URESA").
The Appellant also contends that the lower court erred by refusing
to consider her claim for reimbursement for past child support
expenditures. We conclude that West Virginia maintains continuing
jurisdiction to modify child support and to entertain related
issues, such as reimbursement for past child support expenditures,
notwithstanding the Tennessee URESA proceeding.
I.
On January 27, 1981, a final divorce order was entered in the
Circuit Court of Wyoming County granting a divorce to the Appellant
and the Appellee, Mark Jeffrey. That order granted custody of the
parties' three children to the Appellant with reasonable visitation
rights to the Appellee. With regard to child support, the order
provided that "the child support in this action will be determined
at a later date as the defendant [Mark Jeffrey] is presently
unemployed."
Subsequent to the divorce, the Appellant resided with the
children in West Virginia, and the Appellee resided with his
parents in West Virginia for several years. Mr. Jeffrey's
employment while living with his parents apparently consisted only
of odd jobs on a temporary basis. Mr. Jeffrey remarried on
November 23, 1985, relocated to Tennessee in November 1986, and
began employment with the Fiber Glass Factory in Nashville,
Tennessee, earning approximately $1,100 per month. Upon
discovering that Mr. Jeffrey had become gainfully employed, the
Appellant initiated a URESA petition through the West Virginia
Child Advocate's Office in an attempt to obtain a child support
order against Mr. Jeffrey in Tennessee. On July 19, 1989, a URESA
order was entered in Tennessee requiring Mr. Jeffrey to pay $105
per week in child support.
On August 14, 1989, Mr. Jeffrey filed a petition in the lower
court seeking to modify custody of the parties' oldest child, Keith
Dwayne Jeffrey, then thirteen years of age.See footnote 1 On November 6, 1989,
the Appellant filed an answer, affirmative defenses, and a cross-
petition in response to Mr. Jeffrey's original petition. In her
cross-petition, the Appellant requested that the lower court
modify current and back child support in accordance with West
Virginia child support guidelines. She also requested
reimbursement for previous expenditures she had made for the
support of the children from the point in time when Mr. Jeffrey
became employed in November 1986.
During a November 21, 1989, hearing before Family Law Master
Gloria M. Stephens, the following ruling was made regarding the
Tennessee URESA order:
I am going to rule that this [the URESA
order] will be made an exhibit . . . , and
that this matter has already been adjudicated
as far as child support in Tennessee, and that
this court would not have jurisdiction to
modify that order that is already in
existence.
The family law master consequently limited the evidence adduced at
the hearing to issues of custody and visitation. The Appellant was
not permitted to present evidence of the Appellee's current or
previous child support obligations.
Subsequent to that November 21, 1989, hearing, Family Law
Master Stephens granted Mr. Jeffrey's petition to modify custody of
the oldest child and ruled that the change of custody would not
occur until the end of the school year in June 1990. No findings
regarding child support were made. Mr. Jeffrey thereafter filed a
new URESA petition in Tennessee seeking to modify child support
based upon the planned change of custody. Thus, on January 23,
1990, a second URESA order was entered in Tennessee which reduced
Mr. Jeffrey's child support obligation from $105 per week for the
three children to $300 per month for the two children who were to
remain with the Appellant. Although the actual change of custody
would not occur until June 1990, the new order was effective
January 1, 1990. Upon learning of this modification, the Appellant
filed an amended cross-petition requesting Family Law Master
Stephens to assume jurisdiction over the issue of Mr. Jeffrey's
child support obligations. Again, however, the family law master
refused to hear evidence regarding child support and restated her
previous position that she did not have jurisdiction to modify
child support due to the existence of the Tennessee URESA order.
On December 4, 1990, the Appellant filed a petition for review
of the family law master's findings with the Circuit Court of
Wyoming County. On March 4, 1991, the lower court entered the
family law master's recommended order. Upon the Appellant's March
13, 1991, "Motion to Amend or Reconsider Judgment," the lower court
permitted an opportunity for oral argument and the presentation of
briefs. The lower court entered its final order of July 30, 1991,
affirming the recommendations of Family Law Master Stephens and the
disavowal of jurisdiction.
II.
The stated purposes of the West Virginia URESA statute, West
Virginia Code §§ 48-7-1 to -41 (1992) are "to improve and extend by
reciprocal legislation the enforcement of duties of support." W.
Va. Code § 48A-7-1.See footnote 2 Furthermore, the remedies provided through
URESA "are in addition to and not in substitution for any other
remedies." W. Va. Code § 48A-7-3. A West Virginia support order,
as explained in the antisupersession clause of the URESA
legislation, is not to be nullified by a support order made by a
court of another state pursuant to a URESA proceeding. W. Va. Code
§ 48A-7-29a. URESA constitutes a national effort to establish a
reciprocal arrangement among the states with regard to enforcement
of child support obligations. Our statutes, similar in most
respects to those of other states, are designed to permit West
Virginia to engage in these reciprocal arrangements with other
states using the same or similar statutory framework.
The lower court's conclusion that it lacked jurisdiction to
entertain evidence regarding modification of child support due to
the existence of a Tennessee URESA order is contrary to the intent
of the URESA legislation. Upon its initial acquisition of
jurisdiction in the divorce proceedings of 1981, the lower court
obtained continuing subject matter jurisdiction over the issues
involved, specifically including child support. See State ex rel.
Ravitz v. Fox, 166 W. Va. 194, 273 S.E.2d 370 (1980). As explained
above, the lower court even stated in its divorce order "that the
child support in this action will be determined at a later date as
the defendant is presently unemployed."See footnote 3
We explained the following in syllabus point 1 of Ravitz:
Once the circuit court's jurisdiction of
the person attaches in a divorce action, it
continues throughout all subsequent
proceedings which arise out of the original
cause of action, including matters relating to
alimony, child support, and custody, and a
party may not avoid the continuing
jurisdiction of the trial court to modify
orders concerning alimony, child support, and
custody by moving outside the geographical
jurisdiction of this State.
166 W. Va. at 194, 273 S.E.2d at 370. In Ravitz, after obtaining
their divorce in West Virginia, the parties moved out of this
state. The wife first initiated a modification proceeding in New
Jersey and later attempted to initiate modification proceedings in
the original forum of West Virginia. The husband challenged the
West Virginia court's jurisdiction, contending that the New Jersey
modification of child support had divested West Virginia of
jurisdiction over both the parties and the subject matter. Id. at
197, 273 S.E.2d at 372. We concluded that the New Jersey action on
the issue did not eliminate the West Virginia court's authority to
entertain the modification issue. 166 W. Va. at 199, 273 S.E.2d at
374.
The principles espoused in Ravitz, a case decided without
reference to the URESA legislation, are bolstered by the language
of the URESA statutory framework. Under URESA, we cannot conclude
that the entry of the Tennessee URESA order superseded or nullified
the jurisdiction of the West Virginia court. Such a result would
be in direct contradiction of the antisupersession clause of the
URESA legislation, West Virginia Code § 48A-7-29a, which provides
as follows:
A support order made by a court of this
state pursuant to this article does not
nullify and is not nullified by a support
order made by a court of this state pursuant
to any other law or by a support order made by
a court of any other state pursuant to a
substantially similar law or any other law,
regardless of priority of issuance, unless
otherwise specifically provided by the court.
Amounts paid for a particular period pursuant
to any support order made by the court of
another state shall be credited against
amounts accruing or accrued for the same
period under any support order made by the
court of this state.
In Nancy Darlene M. v. James Lee M., Jr., 184 W. Va. 447, 400 S.E.2d 882 (1990), we addressed the issue of the full faith and
credit to be given to a California order under URESA regarding an
issue of paternity. In examining the reciprocal nature of the
URESA legislation, we noted that "the purpose of the Revised
Uniform Reciprocal Enforcement of Support Act, W. Va. Code, 48A-7-1
to 48A-7-41, as amended, is to provide an additional, supplementary
or cumulative remedy to enforce the original support order in a
divorce case." 184 W. Va. at 452, 400 S.E.2d at 887. Furthermore,
we stated that "[s]upport orders rendered under the provisions of
the Act do not necessarily nullify, modify or supersede the
original support order." Id. at 452, 400 S.E.2d at 887; see
generally, Andrea G. Nadel, Annotation, Construction and Effect of
Provision of Uniform Reciprocal Enforcement of Support Act that No
Support Order Shall Supersede or Nullify any Other Order, 31 A.L.R.
4th 347 (1984). Other courts considering an antisupersession
provision have recognized that the entry of a URESA order in one
state does not divest the initiating state of its continuing
authority to modify child support in a subsequent proceeding. See
Earley v. Earley, 165 Ga. App. 483, 300 S.E.2d 814 (1983); Banton
v. Mathers, 159 Ind. App. 634, 309 N.E.2d 167 (1974); Campbell v.
Jenne, 172 Mont. 219, 563 P.2d 574 (1977); State v. Borchers, 805 S.W.2d 880 (Tex. App. 1991); Kammersell v. Kammersell, 792 P.2d 496
(Utah App. 1990); Oglesby v. Oglesby, 29 Utah 2d 419, 510 P.2d 1106
(1973).
The thrust of these decisions has been, as we intimated in
Nancy Darlene M., that support orders obtained through URESA do not
limit an initiating state from continuing to exercise authority
over support determinations. In Borchers, the Court of Appeals of
Texas discussed the principles of URESA in its analysis of an issue
of alleged modification of an original support order. In holding
that a foreign state's support order entered in a URESA action did
not modify the initiating state's support order, the court
explained that "[t]he language of the statute itself contemplates
the contemporaneous existence of two valid support orders providing
for child support payments in different amounts." 805 S.W.2d at
881-82. The Borchers court also explained that "URESA does not
provide for the modification of a previous order but instead
provides cumulative additional remedies. URESA proceedings are
ancillary proceedings which do not preclude a party from an action
to enforce the original judgment." Id. at 882. Thus, the fact
that the West Virginia court in the present case made no specific
monetary determination of child support in its original order is of
no consequence. While the West Virginia court did state in its
order that the child support would be determined at a later date
due to Mr. Jeffrey's employment status, it would have retained
jurisdiction implicitly even if no such reference had been made.
As the Borchers court emphasized, URESA contemplates an ancillary,
cumulative remedy. In effect, URESA adds to previously existing
remedies and cannot, through any means, be interpreted to detract
therefrom.
We consequently adopt the position that the entry of a URESA
order in a foreign state does not prevent or in any manner restrict
West Virginia, as the initiating state, from continuing to exercise
jurisdiction in a subsequent petition to modify. Any other
construction of the antisupersession clause contained in West
Virginia Code § 48A-7-29a would be contrary to the intent of the
URESA legislation. As we have previously explained, "'[i]n
ascertaining legislative intent, effect must be given to each part
of the statute and to the statute as a whole so as to accomplish
the general purpose of the legislation.' Syl. Pt. 2, Smith v.
State Workmen's Compensation Comm'r, 159 W. Va. 108, 219 S.E.2d 361
(1975)." Syl. Pt. 3, State ex rel. Fetters v. Hott, 173 W. Va.
502, 318 S.E.2d 446 (1984). As addressed above, the URESA
legislation is designed to enhance the ability of the states to
engage in a cooperative effort to order and enforce child support.
Whenever an attempt is made to effectuate this reciprocal
arrangement intended by the drafters of this legislation, the
antisupersession clause must be interpreted in the manner explained
above. We conclude, therefore, that West Virginia maintains
continuing jurisdiction in the present case to modify child support
and to entertain related issues such as reimbursement for past
child support expenditures, notwithstanding the Tennessee URESA
proceeding.See footnote 4
Reversed and remanded.
Footnote: 1While the issues before this Court arose from the petition to
modify custody, the Appellant appeals the lower court's
modification of custody only insofar as the lower court refused to
modify child support based upon its determination of lack of
jurisdiction.
Footnote: 2The act presently dispositive of these issues in West
Virginia is formally entitled the Revised Uniform Reciprocal
Enforcement of Support Act, or "RURESA." While the revisions which
form the distinction between the original URESA and the present
RURESA are of no consequence in this case, we do wish to prevent
any confusion of the issues which may be created by courts varying
uses of the acronyms URESA and RURESA. For simplicity's sake, we
will refer to the governing act as URESA.
Footnote: 3A child support obligation should, as a general rule, always
be established at the outset, except in the most extraordinary of
circumstances. An obligor who is unemployed may still owe support
to his or her child or children. In such cases, the court or
family law master must determine whether income should be
"attributed" to the obligor under the state guidelines for child
support awards, set forth in 6 W. Va. C.S.R. §§ 78-16-1 to 78-16-20
(1988). If a determination is made that "a limitation on income is
not justified in that it is a result of a self-induced decline in
income, a refusal to occupy time profitably, or an unwillingness to
accept employment and earn an adequate sum, the court or master may
consider evidence establishing the support obligor's earning
capacity in the local job market, and may attribute income to such
obligor." 6 W. Va. C.S.R 78-16-4.1.2 [1988]. In the alternative,
if an obligor is remarried and is "unemployed, underemployed or is
otherwise working below full earning capacity," the court or master
may attribute income in the amount which can be earned working
full-time at a job paying the current minimum wage. 6 W. Va.
C.S.R. 78-16-4.1.3.
Another means by which child support may be established is through ascertainment of the amount of aid to dependent children the child is receiving. West Virginia Code § 48A-4-3 (1992) provides that a family law master should prepare a default order and fix an amount of child support even where the obligor has been served with notice but is not present at the hearing. In such case, child support should be fixed "in an amount at least equal to the amount paid as public assistance . . ." or an amount equal to what the obligee would receive as public assistance if the obligee were eligible, unless the family law master has sufficient information to determine an amount to be fixed in accordance with child support guidelines. See also Wyatt v. Wyatt, 185 W. Va. 472, 408 S.E.2d 51 (1991) regarding benefits paid through Aid to Families with Dependent Children and the establishment of an appropriate amount of child support when such benefits contribute to or constitute the family's income. Footnote: 4As referenced in the antisupersession clause, any amount paid for a particular period pursuant to the Tennessee order shall be credited against amounts accruing for that same period pursuant to any West Virginia order.
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